An Act to provide for the Australian Securities and Investments
Commission, a Corporations and Markets Advisory Committee and certain other
bodies, and for other purposes
Part 1—Preliminary
Division 1—Objects
1
Objects
(1) The objects of this Act are:
(a) to provide for the Australian
Securities and Investments Commission (ASIC) which will
administer such laws of the Commonwealth, a State or a Territory as confer
functions and powers under those laws on ASIC; and
(b) to provide for ASIC’s functions,
powers and business; and
(c) to establish a Corporations and
Markets Advisory Committee to provide informed and expert advice to the
Minister about the content, operation and administration of the corporations
legislation (other than the excluded provisions), about corporations and about
financial products and financial markets; and
(d) to establish a Takeovers Panel, a
Companies Auditors and Liquidators Disciplinary Board, a Financial Reporting
Council, an Australian Accounting Standards Board, an Auditing and Assurance
Standards Board, a Financial Reporting Panel and a Parliamentary Joint Committee
on Corporations and Financial Services.
(2) In performing its functions and
exercising its powers, ASIC must strive to:
(a) maintain, facilitate and improve
the performance of the financial system and the entities within that system in
the interests of commercial certainty, reducing business costs, and the
efficiency and development of the economy; and
(b) promote the confident and informed
participation of investors and consumers in the financial system; and
(d) administer the laws that confer functions
and powers on it effectively and with a minimum of procedural requirements; and
(e) receive, process and store,
efficiently and quickly, the information given to ASIC under the laws that
confer functions and powers on it; and
(f) ensure that information is
available as soon as practicable for access by the public; and
(g) take whatever action it can take,
and is necessary, in order to enforce and give effect to the laws of the
Commonwealth that confer functions and powers on it.
(3) This Act has effect, and is to be
interpreted, accordingly.
Division 2—Citation
1A
Short title [see
Note 1]
This Act may be cited as the Australian
Securities and Investments Commission Act 2001.
Division 3—Commencement and application
2
Commencement [see
Note 1]
This Act commences at the same time as
the Corporations Act 2001.
4
Application of this Act
(1) This Act applies:
(a) in this jurisdiction; and
(b) in a State that is not a referring
State (but only to the extent to which the application would be within the
legislative powers of the Parliament (including powers it has under paragraphs
51(xxxvii) and (xxxix) of the Constitution)); and
(c) in such external Territories (if
any) as are prescribed.
(2) Without limiting paragraph (1)(c),
if an external Territory is prescribed, regulations prescribing the external
Territory may provide:
(a) that only some of the provisions
of this Act apply in the external Territory; and
(b) that provisions that apply in the
external Territory only apply in specified circumstances.
(3) If:
(a) an external Territory is
prescribed; and
(b) in a provision of this Act that
applies (either generally or in particular circumstances) in the external
Territory, there is:
(i) a reference to “Australia” or “this jurisdiction”; or
(ii) a reference to a term
the definition of which includes a reference to “Australia” or “this
jurisdiction”;
then, unless a contrary intention appears, the reference
to “Australia” or “this jurisdiction” in that provision as so applying, or in
that definition as applying for the purposes of that provision as so applying,
includes a reference to that external Territory.
4A
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Division 4—Interpretation
5
Interpretation
(1) In this Act, unless the contrary
intention appears:
AASB means the Australian Accounting
Standards Board.
absent from office, in relation to a holder
of an office, means:
(a) absent from duty or from Australia; or
(b) unable, for any reason, to perform
the functions of the office.
accounting member of the Disciplinary Board
has the meaning given by subsection 203(1A).
affairs, in relation to a body corporate, has
the same meaning as in section 232 of the Corporations Act.
APRA means the Australian Prudential
Regulation Authority.
ASIC means the Australian Securities and
Investments Commission.
ASIC delegate means a person to whom, or a
body to which, a function or power is delegated under section 102.
assist, in relation to an ASIC delegate,
means:
(a) to perform functions:
(i) as a member, officer
or employee of the ASIC delegate; and
(ii) in connection with the
ASIC delegate’s performance or exercise of a function or power delegated under
section 102; or
(b) to perform services for the ASIC
delegate in connection with the ASIC delegate’s performance or exercise of a
function or power delegated under section 102.
AUASB means the Auditing and Assurance
Standards Board.
auditor independence requirements means the
auditor independence requirements provided for in:
(a) the Corporations Act; and
(b) the codes of professional conduct.
Australia has a meaning affected by
subsection 4(3).
Australian auditor means:
(a) an individual auditor; or
(b) an audit firm; or
(c) an audit company;
that is conducting, or that has conducted, audits
undertaken for the purposes of the Corporations Act and includes a registered
company auditor who is participating in, or has participated in, audits of that
kind.
books includes:
(a) a register; and
(b) financial reports or financial
records, however compiled, recorded or stored; and
(c) a document; and
(d) banker’s books; and
(e) any other record of information.
business member of the Disciplinary Board has
the meaning given by subsection 203(1A).
CAMAC means the Corporations and Markets
Advisory Committee.
Chairperson
means:
(a) except in Part 11 or in
relation to the Disciplinary Board—the Chairperson of ASIC; and
(b) in Part 11 or in relation to
the Disciplinary Board—the Chairperson of the Disciplinary Board.
contravention, in relation to a law, includes
an ancillary offence relating to an offence against that law.
Convenor means the Convenor of CAMAC.
Corporations Act means the Corporations
Act 2001 and regulations made under that Act.
corporations
legislation means:
(a) this
Act; and
(b) the Corporations Act.
court, except in section 248, includes a
tribunal having power to require the production of documents or the answering
of questions.
Deputy Chairperson means the Deputy
Chairperson of ASIC.
Disciplinary Board means the Companies
Auditors and Liquidators Disciplinary Board.
eligible employee has the same meaning as in
the Superannuation Act 1976.
eligible person, in relation to a person,
means a person who:
(a) if the first‑mentioned person is a
body corporate—is or has been an officer of the body within the meaning of the
corporations legislation (other than the excluded provisions); or
(b) in any case:
(i) is or has been an
employee, agent, banker, solicitor or auditor of; or
(ii) is
acting, or has acted, in any other capacity on behalf of;
the first‑mentioned person.
engage in conduct:
(a) in Division 2 of Part 2—has
the meaning given by subsection 12BA(2); and
(b) in the other provisions of this
Act—means do an act or omit to do an act.
examination means an examination of a person
pursuant to a requirement made under section 19.
excluded provisions means section 12A
and Division 2 of Part 2.
expenses, in relation to an investigation
under Division 1 of Part 3, includes costs and expenses incurred in
relation to a proceeding begun under section 50 as a result of the
investigation.
fail means
refuse or fail.
financial product:
(a) in Division 2 of Part 2—has
the meaning given by section 12BAA; and
(b) in the other provisions of this
Act—has the same meaning as it has in Chapter 7 of the Corporations Act.
financial service:
(a) in Division 2 of Part 2—has
the meaning given by section 12BAB; and
(b) in the other provisions of this
Act—has the same meaning as it has in Chapter 7 of the Corporations Act.
foreign country includes:
(a) a part of a foreign country; and
(b) when used in a provision of this
Act that does not apply (either generally or in particular circumstances) to a
particular external Territory—that external Territory (but only to the extent
that the provision does not apply in that external Territory).
FRC means the Financial Reporting Council.
give has:
(a) in relation to a document—a
meaning affected by section 86; and
(b) in relation to information—a
meaning affected by section 6.
hearing, in this section and Part 3,
means a hearing before ASIC and, in sections 52, 54, 55 and 56, includes a
part of such a hearing.
House means a House of the Parliament.
information has a meaning affected by section 6.
international accounting standards means
accounting standards made by:
(a) the International Accounting
Standards Board; or
(b) another body specified by the regulations.
international auditing standards means
auditing standards made by:
(a) the International Auditing and
Assurance Standards Board; or
(b) another body specified by the
regulations.
investigate, in relation to ASIC, means
investigate in the course of performing or exercising any of ASIC’s functions
and powers.
meeting means:
(a) in
Part 4—a meeting of ASIC;
(b) in Part 9—a meeting of CAMAC;
(c) in Part 11—a meeting of the
Disciplinary Board.
member means:
(a) except in Division 2 of Part 4,
in Part 9, 10, 11, 12 or 14, or in relation to a Division, CAMAC, the
Panel, the Disciplinary Board, the FRC, the AASB or the Parliamentary
Committee—a member of ASIC; and
(b) in Part 9 or in relation to
CAMAC—a member of CAMAC; and
(c) in Part 10 or in relation to
the Panel—a member of the Panel; and
(d) in Part 11 or in relation to
the Disciplinary Board—the Chairperson or any other member of the Disciplinary
Board; and
(e) in relation to the FRC—a member of
the FRC; and
(ea) in relation to the AASB—a member
of the AASB; and
(eb) in relation to the AUASB—a member
of the AUASB; and
(f) in Part 14 or in relation to
the Parliamentary Committee—a member of the Parliamentary Committee.
Office of the AASB means the Office of the
Australian Accounting Standards Board.
Office of the AUASB means the Office of the
Auditing and Assurance Standards Board.
officer means:
(a) an officer within the meaning of
the Corporations Act; or
(b) a provisional liquidator.
Panel means the Takeovers Panel.
Panel of the Disciplinary Board means a Panel
constituted by the Chairperson of the Disciplinary Board under section 210A
to hear a particular matter.
Panel proceedings means proceedings before
the Panel on:
(a) an application made to the Panel
under the Corporations Act; or
(b) a reference of a decision to the
Panel for review under the Corporations Act.
Parliamentary Committee means the
Parliamentary Joint Committee on Corporations and Financial Services.
power includes an authority.
prescribed means prescribed by this Act or
the regulations.
President means the President of the Panel.
proceeding
means:
(a) a
proceeding in a court; or
(b) a
proceeding or hearing before, or an examination by or before, a tribunal;
whether the proceeding, hearing or examination is of a
civil, administrative, criminal, disciplinary or other nature.
produce, except in Part 3, includes
permit access to.
professional accounting body means a body
prescribed by the regulations for the purposes of this definition.
property means any legal or equitable estate
or interest (whether present or future and whether vested or contingent) in
real or personal property of any description and includes a thing in action and
money.
record, in relation to an examination, means
the whole or a part of a record made under section 24 of statements made
at the examination.
regulations means regulations made under this
Act.
report includes an interim report.
staff member
means:
(a) a member of the staff referred to
in subsection 120(1) or a person employed under subsection 120(3); or
(b) a person engaged under subsection
121(1); or
(c) any of the officers, employees and
persons who under section 122 are to assist ASIC.
statement, in relation to an examination,
includes a question asked, an answer given, and any other comment or remark
made, at the examination.
superannuation benefits includes:
(a) benefits in the nature of
superannuation benefits; and
(b) benefits similar to benefits
provided under the Superannuation Act 1976; and
(c) benefits similar to the benefits
provided under the Superannuation Act 1990.
Territory has the meaning given by the
following paragraphs:
(a) a reference in a provision of this
Act to a Territory covers the Capital Territory and the Northern Territory;
(b) if the reference is in a provision
of this Act that applies (either generally or in particular circumstances) to a
particular external Territory—the reference also covers that external
Territory, but only to the extent that the provision applies in that external
Territory;
(c) if the reference is to a Territory
in a geographical sense—the reference also covers, for each Territory that the
reference covers because of paragraph (a) or (b), to the same extent that
the reference covers the Territory, that Territory’s coastal sea.
this Act includes the regulations.
this jurisdiction means:
(a) each referring State (including
its coastal sea); and
(b) the Capital Territory (including
the coastal sea of the Jervis Bay Territory); and
(c) the Northern Territory (including
its coastal sea).
Its meaning is also affected by subsection 4(3) (relating
to external Territories).
traditional trustee company services has the
same meaning as in Chapter 5D of the Corporations Act.
tribunal means:
(a) a tribunal in Australia; or
(b) any other body, authority or
person in Australia having power, by law or by consent of parties, to hear,
receive or examine evidence.
trustee company has the same meaning as in
Chapter 5D of the Corporations Act.
trust property, in relation to a trustee
company, means property that is or was held by the trustee company as trustee.
witness:
(a) in relation to a hearing before
ASIC, means a person appearing at the hearing to give evidence; or
(b) in relation to Panel proceedings,
means a person appearing in the proceedings to give evidence.
written record, in relation to an
examination, means:
(a) a record of the examination:
(i) that is made in
writing; or
(ii) as reduced to writing;
or
(b) a part of such a record.
(2) Unless the contrary intention appears:
(a) an expression that:
(i) is used, but not
defined, in this Act; and
(ii) is defined in section 761A
of the Corporations Act (regardless of whether it is also defined in another
section of that Act);
has the same meaning in this Act
as in section 761A of the Corporations Act; and
(b) an expression that:
(i) is used, but not
defined, in this Act; and
(ii) is not defined in
section 761A of the Corporations Act; and
(ii) is used in the
Corporations Act;
has the same meaning in this Act
as in the Corporations Act.
(3) Except so far as the contrary intention
appears in this Act, Parts 1.2 and 1.3 of the Corporations Act apply for
the purposes of this Act as if the provisions of this Act were provisions of
that Act.
5A
Application of the Acts Interpretation Act 1901
(1) Until the date of commencement of section 4
of the Legislative Instruments (Transitional and Consequential Amendments)
Act 2003 (the Legislative Instruments commencement day), the Acts
Interpretation Act 1901 as in force on 1 November 2000 applies to this Act.
(2) On and after the Legislative Instruments
commencement day, the Acts Interpretation Act 1901 as in force on that
day applies to this Act.
(3) Amendments of the Acts Interpretation
Act 1901 made after the Legislative Instruments commencement day do not
apply to this Act.
6
Giving information
A reference in this Act to giving
information includes a reference to:
(a) explaining or stating a matter; or
(b) identifying a person, matter or
thing; or
(c) disclosing information; or
(d) answering a question.
Part 2—Australian Securities and Investments Commission and
consumer protection in relation to financial services
Division 1—Australian Securities and Investments Commission
8 ASIC
is a body corporate
(1) ASIC:
(a) is a body corporate, with
perpetual succession; and
(b) has a common seal; and
(c) may, subject to
subsection (5), acquire, hold and dispose of real and personal property;
and
(ca) may enter into contracts; and
(d) may sue and be sued in its
corporate name.
Note: ASIC was established by section 7 of the Australian
Securities and Investments Commission Act 1989 and is continued in
existence by section 261 of this Act.
(2) ASIC may enter into contracts in its own
right.
Note: The Chairperson of ASIC may also enter into
contracts on behalf of the Commonwealth. See section 44 of the Financial
Management and Accountability Act 1997.
(3) Any real or personal property held by
ASIC is held for and on behalf of the Commonwealth.
(4) Any money received by ASIC is received
for and on behalf of the Commonwealth.
(5) ASIC cannot hold real or personal
property or money on trust.
Note: Any real or personal property or money that
ASIC would otherwise hold on trust is held by the Commonwealth on trust.
(6) Despite any rule of equity, ASIC may, for
and on behalf of the Commonwealth, perform all the duties and exercise all the
powers of the Commonwealth as trustee in relation to any real or personal
property or money held on trust by the Commonwealth.
(7) To avoid doubt, a right to sue is taken
not to be personal property for the purposes of subsection (3).
8A
ASIC’s liabilities are Commonwealth liabilities
(1) Any financial liabilities of ASIC are
taken to be liabilities of the Commonwealth.
(2) For the purposes of this section:
financial liability means a liability to pay
a person an amount where the amount, or the method for working out the amount,
has been determined.
9
Membership
(1) ASIC is to consist of not fewer than 3
nor more than 8 members.
(2) The Governor‑General appoints the members
on the nomination of the Minister.
(3) At least 3 of the members must be
appointed as full‑time members and each of the remaining members (if any) may
be appointed as a full‑time member or as a part‑time member.
(4) The Minister is to nominate a person as a
member only if the Minister is satisfied that the person is qualified for
appointment by virtue of his or her knowledge of, or experience in, one or more
of the following fields, namely:
(a) business;
(b) administration of companies;
(c) financial markets;
(d) financial products and financial
services;
(e) law;
(f) economics;
(g) accounting.
(5) The performance of ASIC’s functions or
the exercise of ASIC’s powers is not affected by reason only that the number of
members, or the number of full‑time members, is less than 3 unless a continuous
period of 3 months has elapsed since the number of members, or the number of
full‑time members, as the case may be, fell below 3.
(6) For the purposes of subsection (5),
an acting member is taken to be a member.
10
Chairperson and Deputy Chairperson
The Governor‑General is to appoint as
Chairperson of ASIC a person who is, or is to be, a full‑time member and may
appoint as Deputy Chairperson of ASIC a person (other than the Chairperson) who
is, or is to be, a full‑time member.
Note: For the manner in which the Chairperson and
Deputy Chairperson may be referred to, see section 18B of the Acts
Interpretation Act 1901.
10A
Chairperson not subject to direction by ASIC on certain matters
The Chairperson of ASIC is not subject
to direction by ASIC in relation to the Chairperson’s performance of functions,
or exercise of powers, under:
(a) the Financial Management and
Accountability Act 1997; or
(b) the Public Service Act 1999;
in relation to ASIC.
11
Corporations legislation functions and powers and other functions and powers
(1) ASIC has such functions and powers as are
conferred on it by or under the corporations legislation (other than the
excluded provisions).
(2) ASIC also has the following functions:
(a) to provide such staff and support
facilities to the Panel, the Disciplinary Board and the Review Board as are
necessary or desirable for the performance and exercise by the Panel, the
Disciplinary Board and the Review Board of their respective functions and
powers;
(b) to advise the Minister about any
changes to the corporations legislation (other than the excluded provisions)
that, in ASIC’s opinion, are needed to overcome, or would assist in overcoming,
any problems that ASIC has encountered in the course of performing or
exercising any of its functions and powers.
(3) ASIC may, on its own initiative or when
requested by the Minister, advise the Minister, and make to the Minister such
recommendations as it thinks fit, about any matter of a kind referred to in
section 148.
(4) ASIC has power to do whatever is
necessary for or in connection with, or reasonably incidental to, the
performance of its functions.
(6) Subject to this Act, ASIC has the general
administration of this Act.
(8) ASIC may, with the consent of the
Minister, enter into an agreement or arrangement with a State or Territory for
the performance of functions or the exercise of powers by ASIC as an agent of
the State or Territory.
(9) ASIC has such functions and powers as are
referred to in such an agreement or arrangement. However, ASIC is not under a
duty to perform such functions or exercise such powers.
(9A) ASIC may have functions or powers conferred
on it by or under a law of a State or Territory if:
(a) that law provides for, or relates
to, the repeal, amendment or termination (however described) of the operation
of, any of the replaced legislation within the meaning of item 22 of
Schedule 8 to the Financial Sector Reform (Amendments and Transitional
Provisions) Act (No. 1) 1999; and
(b) the conferral of the powers or
functions is in accordance with:
(i) provisions of an
agreement entered into by the Commonwealth and the State or Territory, being
provisions approved by the Minister for the purposes of this subsection; or
(ii) an approval given by
the Minister for the purposes of this subsection.
ASIC has the functions and powers so conferred by that
law. However, ASIC is not under a duty to perform such functions or exercise
such powers.
(10) ASIC may, with the written consent of the
Minister, enter into an agreement or arrangement with a regulatory body of a
foreign country under which ASIC undertakes to assist that regulatory body to
ascertain whether Australian auditors comply with audit requirements that are:
(a) imposed by or under laws of that
foreign country; or
(b) adopted as professional standards
in that foreign country.
(11) The Minister may, in writing, vary or
revoke the Minister’s consent mentioned in subsection (10).
(12) If ASIC enters into an agreement or
arrangement with a regulatory body under subsection (10), it must, as soon
as practicable after entering into that agreement or arrangement, by notice
published in the Gazette:
(a) set out the identifying
particulars of the regulatory body; and
(b) give brief particulars of the
agreement or arrangement entered into; and
(c) identify the audit requirements to
which the agreement or arrangement relates.
(13) A notice published under
subsection (12) is not a legislative instrument.
(14) ASIC has the following functions:
(a) to assist a regulatory body with
which it has entered into an agreement or arrangement under
subsection (10) to examine the policies and working practices of an
Australian auditor, so as to help the regulatory body to ascertain compliance
with audit requirements to which the agreement or arrangement relates;
(b) to disclose to a regulatory body
with which it has entered into an agreement or arrangement under
subsection (10) the information that ASIC has obtained in assisting in
such an examination.
(15) In performing the function referred to in
paragraph (14)(a), ASIC may examine policies and working practices of an
auditor in general or in their application to particular audits or in both of
those respects.
(16) ASIC is not under a duty to perform a
function referred to in subsection (14) or to exercise a power in relation
to such a function.
(17) ASIC is not
subject to any directions of the Minister in relation to:
(a) entering into an agreement or
arrangement under subsection (8) or (10); or
(b) performing functions or exercising
powers referred to in subsection (9); or
(c) performing functions conferred
under subsection (9A) or (14) or exercising any related powers.
12
Directions by Minister
(1) The Minister may give ASIC a written
direction about policies it should pursue, or priorities it should follow, in
performing or exercising any of its functions or powers under the corporations
legislation (other than the excluded provisions).
(2) The Minister must not give a direction
under subsection (1) unless he or she has:
(a) notified ASIC in writing that he
or she is considering giving the direction; and
(b) given the Chairperson an adequate
opportunity to discuss with the Minister the need for the proposed direction.
(3) The Minister must not give a direction
under subsection (1) about a particular case.
(4) ASIC must comply with a direction under subsection (1).
(5) The Minister must cause a copy of an
instrument under subsection (1):
(a) to be published in the Gazette within
21 days after the instrument is made; and
(b) to
be laid before each House of the Parliament within 15 sitting days of that
House after the publication;
but failure of the Minister to do so does not affect the
instrument’s validity.
12A
Other functions and powers
(1) ASIC has the functions and powers that
are conferred on it by or under Division 2 of Part 2 of this Act and
by or under the following Acts:
(c) the Insurance Contracts Act
1984;
(d) the Superannuation (Resolution
of Complaints) Act 1993;
(e) the Life Insurance Act 1995;
(f) the Retirement Savings
Accounts Act 1997;
(g) the Superannuation Industry
(Supervision) Act 1993;
(h) the First Home Saver Accounts
Act 2008;
(i) the National Consumer Credit
Protection Act 2009;
(j) the National Consumer Credit
Protection (Transitional and Consequential Provisions) Act 2009.
(2) ASIC has the function of monitoring and
promoting market integrity and consumer protection in relation to the
Australian financial system.
(3) ASIC has the function of monitoring and
promoting market integrity and consumer protection in relation to the payments
system by:
(a) promoting the adoption of approved
industry standards and codes of practice; and
(b) promoting the protection of
consumer interests; and
(c) promoting community awareness of
payments system issues; and
(d) promoting sound customer‑banker
relationships, including through:
(i) monitoring the
operation of industry standards and codes of practice; and
(ii) monitoring compliance
with such standards and codes.
(4) Subsections (2) and (3) confer
functions and powers to the extent to which they are not in excess of the
legislative power of the Commonwealth.
(5) ASIC may:
(a) advise the Minister about any
changes to a law listed in subsection (1) that ASIC thinks are needed to
help overcome any problems that ASIC has encountered in the course of
performing its functions or exercising any of its powers under that law; and
(b) advise the Minister and make such
recommendations as it thinks fit about any matter relating to its functions in subsections (2)
and (3).
(6) ASIC has power to do whatever is
necessary for or in connection with, or reasonably incidental to, the
performance of its functions.
Division 2—Unconscionable conduct and consumer protection in relation to
financial
services
Subdivision A—Application
12AC
Division extends to some conduct outside Australia
(1) This Division extends to the engaging in
conduct outside Australia by:
(a) bodies corporate incorporated or
carrying on business within Australia; or
(b) Australian citizens; or
(c) persons ordinarily resident within
Australia.
(2) If a claim under section 12GF is
made in a proceeding, a person may rely at a hearing in respect of that
proceeding on conduct to which a provision of this Division extends because of subsection (1)
of this section only if the Minister consents in writing to the reliance.
(3) A person other than the Minister or ASIC
may apply to the Court for an order under subsection 12GM(1) or (2) in a
proceeding in respect of conduct to which a provision of this Division extends
because of subsection (1) of this section only if the Minister consents in
writing to the application.
(4) The Minister must give a consent under subsection (2)
or (3) in respect of a proceeding unless, in the Minister’s opinion:
(a) the law of the country in which
the conduct concerned was engaged in required or specifically authorised the
engaging in of the conduct; and
(b) it is not in the national interest
to give the consent.
12AD
Application of Division to Commonwealth and Commonwealth authorities
(1) Subject to this section, this Division
binds the Crown in right of the Commonwealth in so far as the Crown in right of
the Commonwealth carries on a business, either directly or by an authority of
the Commonwealth.
(3) Nothing in this Division makes the Crown
in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted
for an offence.
(4) The protection in subsection (3)
does not apply to an authority of the Commonwealth.
(5) For the purposes of this section, the
following transactions do not amount to carrying on a business:
(a) a transaction involving only
persons who are all acting for the Crown in right of the Commonwealth (and none
of whom is an authority of the Commonwealth);
(b) a transaction involving only
persons who are all acting for the same authority of the Commonwealth;
(c) a transaction involving only the
Crown in right of the Commonwealth and one or more non‑commercial authorities of
the Commonwealth;
(d) a transaction involving only non‑commercial
authorities of the Commonwealth.
(6) Subsection (5) does not limit the
things that do not amount to carrying on a business for the purposes of this
section.
(7) For the purposes of this section, an
authority of the Commonwealth is non‑commercial if:
(a) it is constituted by only one
person; and
(b) it is neither a trading
corporation nor a financial corporation.
12AE
Saving of other laws and remedies
(1) Except as provided by subsection (2),
Subdivision BA (sections 12BF to 12BM), Subdivision C (sections 12CA
to 12CC), Subdivision D (sections 12DA to 12DN) and Subdivision E
(sections 12EA to 12ED) are not intended to exclude or limit the
concurrent operation of any law of a State or Territory.
(2) If:
(a) an act or omission of a person is
both an offence against section 12GB and an offence under the law of a
State or Territory; and
(b) the person is convicted of either
of those offences;
the person is not liable to be convicted of the other of
those offences.
(3) Except as expressly provided by Subdivision
BA (sections 12BF to 12BM), Subdivision C (sections 12CA to 12CC),
Subdivision D (sections 12DA to 12DN) or Subdivision E (sections 12EA
to 12ED), nothing in those Subdivisions is taken to limit, restrict or
otherwise affect any right or remedy a person would have had if that
Subdivision had not been enacted.
(4) This Division does not affect the
operation of:
(a) the law relating to restraint of
trade in so far as that law is capable of operating concurrently with this
Division; or
(b) the law relating to breaches of
confidence;
but nothing in the law referred to in paragraph (a)
or (b) affects the interpretation of this Division.
Subdivision B—Interpretation
12BA
Interpretation
(1) In this Division, unless the contrary
intention appears:
acquire, in relation to services, includes
accept.
acquisition of services has the meaning given
by section 12BD.
assert a right to payment has the meaning
given by section 12BEA.
authority, in relation to a State or
Territory (including an external Territory), means:
(a) a body corporate established for a
purpose of the State or the Territory by or under a law of the State or
Territory; or
(b) an incorporated company in which
the State or the Territory, or a body corporate referred to in paragraph (a),
has a controlling interest.
authority of the
Commonwealth means:
(a) a body corporate established for a
purpose of the Commonwealth by or under a law of the Commonwealth or a law of a
Territory; or
(b) an incorporated company in which
the Commonwealth, or a body corporate referred to in paragraph (a), has a
controlling interest.
business includes a business not carried on
for profit.
conduct has the meaning given by subsection (2).
consumer has the meaning given by section 12BC.
consumer contract has the meaning given by
subsection 12BF(3).
contract has the meaning given by section 12BE.
covenant means a covenant (including a
promise not under seal) annexed to or running with an estate or interest in
land (whether at law or in equity and whether or not for the benefit of other
land) and proposed covenant has a corresponding meaning.
enforcement proceeding means a proceeding
instituted under Subdivision G of Division 2 of Part 2 (other than
section 12GNB).
engage in conduct has the meaning given by subsection (2).
Family Court Judge means a Judge of the
Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge
Administrator or a Senior Judge).
financial corporation:
(a) means a financial corporation
within the meaning of paragraph 51(xx) of the Constitution; and
(b) includes a body corporate that
carries on as its sole or principal business the business of:
(i) banking (other than
State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than
State insurance not extending beyond the limits of the State concerned).
financial product has the meaning given by
section 12BAA.
financial service has the meaning given by
section 12BAB.
infringement notice means an infringement
notice issued under section 12GXA.
infringement notice compliance period for an
infringement notice has the meaning given by section 12GXF.
infringement notice provision means a
provision of Subdivision C, D or GC (other than section 12DA,
section 12DE, subsection 12DG(1) or section 12DI or 12DM).
misleading includes the meaning given by
section 12BB.
non‑party consumer means:
(a) in relation to conduct referred to
in subparagraph 12GNB(1)(a)(i)—a person who is not, or has not been, a party to
an enforcement proceeding in relation to the conduct; and
(b) in relation to a term of a
consumer contract referred to in subparagraph 12GNB(1)(a)(ii)—a person who is
not, or has not been, a party to an enforcement proceeding in relation to the
term.
price includes a charge of any description.
provision, in relation to an understanding,
means any matter forming part of the understanding.
rely on, in relation to a term of a consumer
contract, includes the following:
(a) attempt to enforce the term;
(b) attempt to exercise a right
conferred, or purportedly conferred, by the term;
(c) assert the existence of a right
conferred, or purportedly conferred, by the term.
re‑supply of services has the meaning given
by section 12BD.
send includes deliver, and sent
and sender have corresponding meanings.
services includes any rights (including
rights in relation to, and interests in, real or personal property), benefits,
privileges or facilities that are, or are to be, provided, granted or conferred
in trade or commerce but does not include:
(a) the supply of goods within the
meaning of the Competition and Consumer Act 2010; or
(b) the performance of work under a
contract of service.
substantiation notice means a notice under
section 12GY.
substantiation notice compliance period for a
substantiation notice has the meaning given by subsection 12GYB(2).
supply:
(a) includes provide, grant or confer
when used as a verb in relation to services; and
(b) has a corresponding meaning when
used as a noun;
and supplied and supplier have
corresponding meanings.
supply of services has the meaning given by
section 12BD.
the Court or the Federal Court
means the Federal Court of Australia.
trade or commerce means trade or commerce
within Australia or between Australia and places outside Australia.
trading corporation means a trading
corporation within the meaning of paragraph 51(xx) of the Constitution.
transparent, in relation to a term of a
consumer contract, has the meaning given by subsection 12BG(3).
unfair, in relation to a term of a consumer
contract, has the meaning given by subsection 12BG(1).
unsolicited financial products means
financial products supplied to a person without any request made by the person
or on the person’s behalf.
unsolicited financial services means
financial services supplied to a person without any request made by the person
or on the person’s behalf.
upfront price has the meaning given by
subsection 12BI(2).
(2) In this
Division:
(a) a reference to engaging in conduct
is a reference to doing or refusing to do any act, including:
(i) making, or giving
effect to a provision of, a contract or arrangement; or
(ii) arriving at, or giving
effect to a provision of, an understanding; or
(iii) requiring the giving
of, or giving, a covenant; and
(b) a reference to conduct, when that
expression is used as a noun otherwise than as mentioned in paragraph (a),
is a reference to doing or refusing to do any act, including:
(i) making, or giving
effect to a provision of, a contract or arrangement; or
(ii) arriving at, or giving
effect to a provision of, an understanding; or
(iii) requiring the giving
of, or giving, a covenant; and
(c) a reference to refusing to do an
act includes a reference to:
(i) refraining (otherwise
than inadvertently) from doing that act; or
(ii) making it known that
that act will not be done; and
(d) a reference to a person offering
to do an act, or to do an act on a particular condition, includes a reference
to the person making it known that the person will accept applications, offers
or proposals for the person to do that act or to do that act on that condition,
as the case may be.
12BAA
Definition of financial product
General definition of financial product
(1) Subject to subsection (8), for the
purposes of this Division, a financial product is a facility
through which, or through the acquisition of which, a person does one or more
of the following:
(a) makes a financial investment (see subsection (4));
(b) manages financial risk (see subsection (5));
(c) makes non‑cash payments (see subsection (6)).
(2) Subject to subsection (8), for the
purposes of this Division, a particular facility that is of a kind through
which people commonly make financial investments, manage financial risks or
make non‑cash payments is a financial product even if that
facility is acquired by a particular person for some other purpose.
(3) A facility does not cease to be a
financial product merely because:
(a) the facility has been acquired by
a person other than the person to whom it was originally issued; and
(b) that person, in acquiring the
product, was not making a financial investment or managing a financial risk.
Meaning of makes a financial investment
(4) For the purposes of this section, a
person (the investor) makes a financial investment
if:
(a) the investor gives money or
money’s worth (the contribution) to another person and any of the
following apply:
(i) the other person uses
the contribution to generate a financial return, or other benefit, for the
investor;
(ii) the investor intends
that the other person will use the contribution to generate a financial return,
or other benefit, for the investor (even if no return or benefit is in fact
generated);
(iii) the other person
intends that the contribution will be used to generate a financial return, or
other benefit, for the investor; and
(b) the investor has no day‑to‑day
control over the use of the contribution to generate the return or benefit.
Note 1: Examples of actions that constitute making a
financial investment under this subsection are:
(a) a person paying money to a company for the
issue to the person of shares in the company (the company uses the money
to generate dividends for the person and the person, as a shareholder, does not
have control over the day‑to‑day affairs of the company); or
(b) a person contributing money to acquire
interests in a registered scheme from the responsible entity of the scheme (the
scheme uses the money to generate financial or other benefits for the person
and the person, as a member of the scheme, does not have day‑to‑day control
over the operation of the scheme).
Note 2: Examples of actions that do not constitute
making a financial investment under this subsection are:
(a) a person purchasing real property or bullion
(while the property or bullion may generate a return for the person, it is not
a return generated by the use of the purchase money by another person); or
(b) a person giving money to a financial services
licensee who is to use it to purchase shares for the person (while the
purchase of the shares will be a financial investment made by the person, the
mere act of giving the money to the licensee will not of itself constitute
making a financial investment).
Meaning of manages a financial risk
(5) For the purposes of this section, a
person manages financial risk if they:
(a) manage the financial consequences
to them of particular circumstances happening; or
(b) avoid or limit the financial
consequences of fluctuations in, or in the value of, receipts or costs
(including prices and interest rates).
Note 1: Examples of actions that constitute managing a
financial risk are:
(a) taking out insurance; or
(b) hedging a liability by acquiring a futures
contract or entering into a currency swap.
Note 2: An example of an action that does not
constitute managing a financial risk is employing a security firm (while that
is a way of managing the risk that thefts will happen, it is not a way of
managing the financial consequences if thefts do occur).
Meaning of makes non‑cash payments
(6) For the purposes of this section, a
person makes non‑cash payments if they make payments, or cause
payments to be made, otherwise than by the physical delivery of Australian
currency in the form of notes and/or coins.
Note: Examples of actions that constitute making non‑cash
payments are:
(a) making payments by means of a facility for
direct debit of a deposit account; or
(b) making payments by means of a facility for the
use of cheques; or
(c) making payments by means of a purchased
payment facility within the meaning of the Payment Systems (Regulation) Act
1998, such as a smart card; or
(d) making payments by means of traveller’s cheques
in Australian currency.
Specific things that are financial products
(subject to subsection (8))
(7) Subject to subsection (8), the
following are financial products for the purposes of this
Division:
(a) a security;
(b) any of the following in relation
to a managed investment scheme:
(i) an interest in the
scheme;
(ii) a legal or equitable
right or interest in an interest covered by subparagraph (i);
(iii) an option to acquire,
by way of issue, an interest or right covered by subparagraph (i) or (ii);
(c) a derivative;
(d) a contract of insurance (see
subsection (9)) other than:
(i) health insurance
provided as part of a health insurance business (as defined by
Division 121 of the Private Health Insurance Act 2007); or
(ii) insurance provided as
part of a health‑related business (as defined by section 131‑15 of that
Act) that is conducted through a health benefits fund (as defined by
section 131‑10 of that Act);
(e) a life policy, or a sinking fund
policy, within the meaning of the Life Insurance Act 1995, that is not a
contract of insurance (see subsection (9));
(f) a beneficial interest in a
superannuation fund (as defined by section 10 of the Superannuation
Industry (Supervision) Act 1993);
(g) an RSA (retirement savings
account) within the meaning of the Retirement Savings Accounts Act 1997;
(ga) an FHSA (first home saver account)
within the meaning of the First Home Saver Accounts Act 2008;
(h) any deposit‑taking facility made
available by an ADI (within the meaning of the Banking Act 1959) in
the course of its banking business (within the meaning of that Act), other than
an RSA (RSAs are covered by paragraph (g));
(i) a debenture, stock or bond issued
or proposed to be issued by a government;
(j) a foreign exchange contract;
(k) a credit facility (within the
meaning of the regulations);
(m) anything declared by the
regulations to be a financial product for the purposes of this subsection.
Note: Even though something is expressly excluded
from one of these paragraphs, it may still be a financial product (subject to subsection (8))
either because:
(a) it is covered by another of these paragraphs;
or
(b) it is covered by the general definition in subsection (1).
Specific things that are not financial products
(8) Despite anything else in this section,
the following are not financial products for the purposes of this
Division:
(a) an excluded security;
(b) health insurance provided as part
of a health insurance business (as defined in Division 121 of the Private
Health Insurance Act 2007);
(ba) insurance provided as part of a
health‑related business (as defined by section 131‑15 of that Act) that is
conducted through a health benefits fund (as defined by section 131‑10 of
that Act);
(c) State insurance or Northern Territory insurance, including insurance entered into by:
(i) a State or the Northern Territory; and
(ii) some other insurer;
as joint insurers;
(d) a facility:
(i) that is an approved
RTGS system for the purposes of the Payment Systems and Netting Act 1998;
or
(ii) for the transmission
and reconciliation of non‑cash payments (see subsection (6)), and the
establishment of final positions, for settlement through an approved RTGS
system within the meaning of the Payment Systems and Netting Act 1998;
(e) a facility that is a designated
payment system for the purposes of the Payment Systems (Regulation) Act 1998;
(f) a facility for the exchange and
settlement of non‑cash payments (see subsection (6)) between providers of
non‑cash payment facilities;
(g) a facility that is:
(i) a financial market; or
(ii) a clearing and
settlement facility; or
(iii) a payment system
operated as part of a clearing and settlement facility;
(h) so much of an arrangement as is
not a derivative within the meaning of the Corporations Act because of
paragraph 761D(3)(a) of that Act;
(i) an arrangement that is not a
derivative within the meaning of the Corporations Act because of paragraph
761D(3)(b) of that Act;
(j) an arrangement that is not a
derivative within the meaning of the Corporations Act because of subsection
761D(4) of that Act;
(k) any
of the following:
(i) an interest in
something that is not a managed investment scheme within the meaning of the
Corporations Act because of paragraph (c), (e), (f), (k), (l) or (m) of
the definition of managed investment scheme in section 9 of
that Act;
(ii) a legal or equitable
right or interest in an interest covered by subparagraph (i);
(iii) an option to acquire,
by way of issue, an interest or right covered by subparagraph (i);
(m) a deposit‑taking facility that is
used for State banking;
(n) equipment or infrastructure by
which something else that is a financial product is provided;
(o) a funeral benefit;
(p) a facility, interest or other
thing declared by regulations made for the purposes of this subsection not to
be a financial product.
(9) For the
purpose of paragraphs (7)(d) and (e), contract of insurance includes:
(a) a contract that would ordinarily
be regarded as a contract of insurance even if some of its provisions are not
by way of insurance; and
(b) a contract that includes
provisions of insurance in so far as those provisions are concerned, even if
the contract would not ordinarily be regarded as a contract of insurance.
12BAB
Meaning of financial service
When does a person provide a financial service?
(1) For the purposes of this Division,
subject to paragraph (2)(b), a person provides a financial service
if they:
(a) provide financial product advice
(see subsection (5)); or
(b) deal in a financial product (see subsection (7));
or
(c) make a market for a financial
product (see subsection (11)); or
(d) operate a registered scheme; or
(e) provide a custodial or depository
service (see subsection (12)); or
(f) operate a financial market (see subsection (15))
or clearing and settlement facility (see subsection (17)); or
(g) provide a service that is
otherwise supplied in relation to a financial product; or
(h) engage in conduct of a kind
prescribed in regulations made for the purposes of this paragraph.
(1A) Subject to paragraph (2)(b), the
provision by a trustee company of a traditional trustee company service
constitutes the provision, by the company, of a financial service for
the purposes of this Division.
Note: Trustee companies may also provide other kinds
of financial service mentioned in subsection (1).
(1B) The regulations may, in relation to a
traditional trustee company service of a particular class, prescribe the person
or persons to whom a service of that class is taken to be provided or supplied
for the purposes of this Division. This subsection does not limit (and is not
limited by) subsection (2).
(2) The regulations may set out:
(a) the circumstances in which persons
facilitating the provision of a financial service (for example, by publishing
information) are taken also to provide that service; or
(b) the circumstances in which persons
are taken to provide, or are taken not to provide, a financial service.
(4) For the purposes of this section, a
person is not operating a registered scheme merely because:
(a) they are acting as an agent or
employee of another person; or
(b) they are taking steps to wind up
the scheme.
Meaning of financial product advice
(5) For the purposes of this
section, financial product advice means a recommendation or a
statement of opinion, or a report of either of those things, that:
(a) is intended to influence a person
or persons in making a decision in relation to a particular financial product
or class of financial products, or an interest in a particular financial
product or class of financial products; or
(b) could reasonably be regarded as
being intended to have such an influence;
but does not include anything in:
(c) a document prepared in
accordance with requirements of Chapter 7 of the Corporations Act, other
than a document of a kind prescribed by regulations made for the purposes of
this paragraph; or
(d) any other document of a kind
prescribed by regulations made for the purposes of this paragraph.
(6) Advice given by a lawyer in his or her
professional capacity about matters of law, legal interpretation or the
application of the law to any facts is not financial product advice.
Meaning of dealing
(7) For the purposes of this section, the
following conduct constitutes dealing in a financial product:
(a) applying for or acquiring a
financial product;
(b) issuing a financial product;
(c) in relation to securities or
managed investment interests—underwriting the securities or interests;
(d) varying a financial product;
(e) disposing of a financial product.
(8) Arranging for a person to engage in
conduct referred to in subsection (7) is also dealing in a
financial product, unless the actions concerned amount to providing financial
product advice.
(9) A person is taken not to deal
in a financial product if the person deals in the product on their own behalf,
unless:
(a) the person is an issuer of
financial products; and
(b) the dealing is in relation to one
or more of those products.
(10) The regulations may prescribe conduct that
is taken to be, or not to be, dealing in a financial product.
Regulations made for the purposes of this subsection have effect despite
anything else in this section.
Meaning of makes a market for a financial
product
(11) For the purposes of this section, a person
makes a market for a financial product if:
(a) either through a facility, at a
place or otherwise, the person regularly states the prices at which they
propose to acquire or dispose of financial products on their own behalf; and
(b) other persons have a reasonable
expectation that they will be able to regularly effect transactions at the
stated prices; and
(c) the actions of the person do not,
or would not if they happened through a facility or at a place, constitute
operating a financial market because of the effect of paragraph (16)(a).
Meaning of provide a custodial or depository service
(12) For the purposes of this section, a person
(the provider) provides a custodial or depository service to
another person (the client) if, under an arrangement between the
provider and the client, or between the provider and another person with whom
the client has an arrangement, (whether or not there are also other parties to
any such arrangement), a financial product, or a beneficial interest in a
financial product, is held by the provider in trust for, or on behalf of, the
client or another person nominated by the client.
(14) However, the following conduct does not
constitute providing a custodial or depository service:
(a) the operation of a clearing and
settlement facility;
(b) the operation of a registered
scheme, or the holding of the assets of a registered scheme;
(c) the operation of a regulated
superannuation fund, an approved deposit fund or a pooled superannuation trust
(within the meaning of the Superannuation Industry (Supervision) Act 1993);
(d) the provision of services to a
related body corporate;
(e) any other conduct of a kind prescribed
by regulations made for the purposes of this paragraph.
Meaning of financial market
(15) For the purposes of this section, a financial
market is a facility through which:
(a) offers to acquire or dispose of
financial products are regularly made or accepted; or
(b) offers or invitations are
regularly made to acquire or dispose of financial products that are intended to
result or may reasonably be expected to result, directly or indirectly, in:
(i) the making of offers
to acquire or dispose of financial products; or
(ii) the acceptance of such
offers.
(16) However, the following conduct does not
constitute operating a financial market for the purposes of this
section:
(a) a person making or accepting
offers or invitations to acquire or dispose of financial products on the
person’s own behalf, or on behalf of one party to the transaction only;
(b) conducting treasury operations
between related bodies corporate;
(c) conducting an auction of forfeited
shares;
(d) any other conduct of a kind
prescribed by regulations made for the purposes of this paragraph.
Meaning of clearing and settlement facility
(17) For the purposes of this section, a clearing
and settlement facility is a facility that provides a regular mechanism
for the parties to transactions relating to financial products to meet
obligations to each other that:
(a) arise from entering into the
transactions; and
(b) are of a kind prescribed by
regulations made for the purposes of this paragraph.
(18) However, the following conduct does not
constitute operating a clearing and settlement facility for the
purposes of this section:
(a) an ADI (within the meaning of the Banking
Act 1959) acting in the ordinary course of its banking business;
(b) a person acting on their own
behalf, or on behalf of one party to a transaction only;
(c) a person who provides financial
services to another person dealing with the other person’s accounts in the
ordinary course of the first person’s business activities;
(d) the actions of a participant in a
clearing and settlement facility who has taken on the delivery or payment
obligations, in relation to a particular financial product, of another person
who is a party to a transaction relating to a financial product;
(e) conducting treasury operations
between related bodies corporate;
(h) operating a facility for the
exchange and settlement of non‑cash payments between providers of non‑cash
payment facilities;
(i) any other conduct of a kind
prescribed by regulations made for the purposes of this paragraph.
12BB
Misleading representations with respect to future matters
(1) If:
(a) a person makes a representation
with respect to any future matter (including the doing of, or the refusing to
do, any act); and
(b) the person does not have
reasonable grounds for making the representation;
the representation is taken, for the purposes of
Subdivision D (sections 12DA to 12DN), to be misleading.
(2) For the purposes of applying
subsection (1) in relation to a proceeding concerning a representation
made with respect to a future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had
reasonable grounds for making the representation, unless evidence is adduced to
the contrary.
(3) To avoid doubt, subsection (2) does
not:
(a) have the effect that, merely
because such evidence to the contrary is adduced, the person who made the
representation is taken to have had reasonable grounds for making the
representation; or
(b) have the effect of placing on any
person an onus of proving that the person who made the representation had
reasonable grounds for making the representation.
(4) Subsection (1) does not by
implication limit the meaning of a reference in this Division to:
(a) a misleading representation; or
(b) a representation that is
misleading in a material particular; or
(c) conduct that is misleading or is
likely or liable to mislead;
and, in particular, does not imply that a representation
that a person makes with respect to any future matter is not misleading merely
because the person has reasonable grounds for making the representation.
12BC
Consumers
(1) For the purposes of this Division, unless
the contrary intention appears, a person is taken to have acquired particular
financial services as a consumer if, and only if:
(a) the price of the services did not
exceed the prescribed amount; or
(b) if the price of the services
exceeded the prescribed amount—the services were of a kind ordinarily acquired
for personal, domestic or household use or consumption; or
(c) if the services were acquired for
use or consumption in connection with a small business (see subsection (2))
and the price of the services exceeded the prescribed amount—the services were
of a kind ordinarily acquired for business use or consumption.
(2) For the purposes of subsection (1):
small business means a business employing
less than:
(a) if the business is or includes the
manufacture of goods—100 people; or
(b) otherwise—20 people.
(3) For the purposes of subsection (1):
(a) the prescribed amount is:
(i) $40,000; or
(ii) if a greater amount is
prescribed for the purposes of this paragraph—that greater amount; and
(b) subject to paragraph (c), the
price of services purchased by a person is taken to have been the amount paid
or payable by the person for the services; and
(c) if a person purchased services
together with other property or services, or with both other property and
services, and a specified price was not allocated to the services in the
contract under which they were purchased, the price of the services is taken to
have been:
(i) the price at which, at
the time of the acquisition, the person could have purchased the services from
the supplier without the other property or services; or
(ii) if, at the time of the
acquisition, the services were only available for purchase from the supplier
together with the other property or services but, at that time, services of the
kind acquired were available for purchase from another supplier without other
property or services—the lowest price at which the person could, at that time,
reasonably have purchased services of that kind from another supplier; or
(iii) if, at the time of the
acquisition, services of the kind acquired were not available for purchase from
any supplier except together with other property or services—the value of the
services at that time; and
(d) if a person acquired services
otherwise than by way of purchase, the price of the services is taken to have
been:
(i) the price at which, at
the time of the acquisition, the person could have purchased the services from
the supplier; or
(ii) if, at the time of the
acquisition, the services were not available for purchase from the supplier, or
were available only together with other property or services, but, at that
time, services of the kind acquired were available for purchase from another
supplier—the lowest price at which the person could, at that time, reasonably
have purchased services of that kind from another supplier; or
(iii) if services of the
kind acquired were not available, at the time of the acquisition, for purchase
from any supplier, or were not available except together with other property or
services—the value of the services at that time; and
(e) without limiting by implication
the meaning of the expression services in subsection 12BA(1), the
obtaining of credit by a person in connection with the person’s acquisition of
services is taken to be the acquisition by the person of a service and any
amount by which the amount paid or payable by the person for the services is
increased by reason of the person’s so obtaining credit is taken to be paid or
payable by the person for that service.
(4) If it is alleged in a proceeding under
this Division, or in any other proceeding in respect of a matter arising under
this Division, that a person was a consumer in relation to particular services,
it is presumed that the person was a consumer in relation to those services
unless the contrary is established.
12BD
Acquisition, supply and re‑supply
In this Division, unless the contrary
intention appears:
(a) a reference to the supply or
acquisition of services includes a reference to agreeing to supply or acquire
services; and
(b) a reference to the supply or
acquisition of services includes a reference to the supply or acquisition of
services together with property or other services, or both; and
(c) a reference to the re‑supply of
services (the original services) acquired from a person (the original
supplier) includes a reference to:
(i) a supply of the original
services to another person in an altered form or condition; and
(ii) a supply to another
person of other services that are substantially similar to the original
services and could not have been supplied if the original services had not been
acquired by the person who acquired them from the original supplier.
12BE
Application of Division in relation to leases and licences of land and
buildings
In this Division:
(a) a reference to a contract includes
a reference to a lease of, or a licence in respect of, land or a building or
part of a building (despite the express references in this Division to such
leases or licences); and
(b) a reference to making or entering
into a contract, in relation to such a lease or licence, is a reference to
granting or taking the lease or licence.
12BEA
Asserting a right to payment
(1) For the purposes of this Division, a
person is taken to assert a right to payment from another person
if the person:
(a) makes a demand for the payment or
asserts a present or prospective right to the payment; or
(b) threatens to bring any legal
proceedings with a view to obtaining the payment; or
(c) places or causes to be placed the
name of the other person on a list of defaulters or debtors, or threatens to do
so, with a view to obtaining the payment; or
(d) invokes or causes to be invoked
any other collection procedure, or threatens to do so, with a view to obtaining
the payment; or
(e) sends any invoice or other
document that:
(i) states the amount of
the payment; or
(ii) sets out the price of
unsolicited financial services; or
(iii) sets out the charge
for an advertisement, for financial services or financial products, that has
been published;
and does not contain a
statement, to the effect that the document is not an assertion of a right to a
payment, that complies with any requirements prescribed by the regulations.
(2) For the purposes of this section, an
invoice or other document purporting to have been sent by or on behalf of a
person is taken to have been sent by that person unless the contrary is
established.
Subdivision BA—Unfair contract terms
12BF
Unfair terms of consumer contracts
(1) A term of a consumer contract is void if:
(a) the term is unfair; and
(b) the contract is a standard form
contract; and
(c) the contract is:
(i) a financial product;
or
(ii) a contract for the
supply, or possible supply, of services that are financial services.
(2) The contract continues to bind the
parties if it is capable of operating without the unfair term.
(3) A consumer contract is a
contract at least one of the parties to which is an individual whose
acquisition of what is supplied under the contract is wholly or predominantly
an acquisition for personal, domestic or household use or consumption.
12BG
Meaning of unfair
(1) A term of a consumer contract referred to
in subsection 12BF(1) is unfair if:
(a) it would cause a significant
imbalance in the parties’ rights and obligations arising under the contract;
and
(b) it is not reasonably necessary in
order to protect the legitimate interests of the party who would be advantaged
by the term; and
(c) it would cause detriment (whether
financial or otherwise) to a party if it were to be applied or relied on.
(2) In determining whether a term of a
consumer contract is unfair under subsection (1), a court may take into
account such matters as it thinks relevant, but must take into account the
following:
(b) the extent to which the term is
transparent;
(c) the contract as a whole.
(3) A term is transparent if
the term is:
(a) expressed in reasonably plain
language; and
(b) legible; and
(c) presented clearly; and
(d) readily available to any party
affected by the term.
(4) For the purposes of
paragraph (1)(b), a term of a consumer contract is presumed not to be
reasonably necessary in order to protect the legitimate interests of the party
who would be advantaged by the term, unless that party proves otherwise.
12BH
Examples of unfair terms
(1) Without
limiting section 12BG, the following are examples of the kinds of terms of
a consumer contract referred to in subsection 12BF(1) that may be unfair:
(a) a term that permits, or has the
effect of permitting, one party (but not another party) to avoid or limit
performance of the contract;
(b) a term that permits, or has the
effect of permitting, one party (but not another party) to terminate the
contract;
(c) a term that penalises, or has the
effect of penalising, one party (but not another party) for a breach or
termination of the contract;
(d) a term that permits, or has the
effect of permitting, one party (but not another party) to vary the terms of
the contract;
(e) a term that permits, or has the
effect of permitting, one party (but not another party) to renew or not renew
the contract;
(f) a term that permits, or has the
effect of permitting, one party to vary the upfront price payable under the
contract without the right of another party to terminate the contract;
(g) a term that permits, or has the
effect of permitting, one party unilaterally to vary financial services to be
supplied under the contract;
(h) a term that permits, or has the
effect of permitting, one party unilaterally to determine whether the contract
has been breached or to interpret its meaning;
(i) a term that limits, or has the
effect of limiting, one party’s vicarious liability for its agents;
(j) a term that permits, or has the
effect of permitting, one party to assign the contract to the detriment of
another party without that other party’s consent;
(k) a term that limits, or has the effect
of limiting, one party’s right to sue another party;
(l) a term that limits, or has the
effect of limiting, the evidence one party can adduce in proceedings relating
to the contract;
(m) a term that imposes, or has the
effect of imposing, the evidential burden on one party in proceedings relating
to the contract;
(n) a term of a kind, or a term that
has an effect of a kind, prescribed by the regulations.
(2) Before the Governor‑General makes a
regulation for the purposes of paragraph (1)(n) prescribing a kind of
term, or a kind of effect that a term has, the Minister must take into
consideration:
(a) the detriment that a term of that
kind would cause to consumers; and
(b) the impact on business generally
of prescribing that kind of term or effect; and
(c) the public interest.
12BI
Terms that define main subject matter of consumer contracts etc. are unaffected
(1) Section 12BF does not apply to a
term of a consumer contract referred to in subsection (1) of that section
to the extent that, but only to the extent that, the term:
(a) defines the main subject matter of
the contract; or
(b) sets the upfront price payable
under the contract; or
(c) is a term required, or expressly
permitted, by a law of the Commonwealth or a State or Territory.
(2) The upfront price payable
under a consumer contract referred to in subsection 12BF(1) is the
consideration that:
(a) is provided, or is to be provided,
for the supply under the contract; and
(b) is disclosed at or before the time
the contract is entered into;
but does not include any other consideration that is
contingent on the occurrence or non‑occurrence of a particular event.
(3) To avoid doubt, if a consumer contract
referred to in subsection 12BF(1) is a contract under which credit is provided
or is to be provided, the consideration referred to in subsection (2) of
this section includes the total amount of principal that is owed under the
contract.
12BK
Standard form contracts
(1) If a party to a proceeding alleges that a
contract is a standard form contract, it is presumed to be a standard form
contract unless another party to the proceeding proves otherwise.
(2) In determining whether a contract is a
standard form contract, a court may take into account such matters as it thinks
relevant, but must take into account the following:
(a) whether one of the parties has all
or most of the bargaining power relating to the transaction;
(b) whether the contract was prepared
by one party before any discussion relating to the transaction occurred between
the parties;
(c) whether another party was, in
effect, required either to accept or reject the terms of the contract (other
than the terms referred to in subsection 12BI(1)) in the form in which they
were presented;
(d) whether another party was given an
effective opportunity to negotiate the terms of the contract that were not the
terms referred to in subsection 12BI(1);
(e) whether the terms of the contract
(other than the terms referred to in subsection 12BI(1)) take into account the
specific characteristics of another party or the particular transaction;
(f) any other matter prescribed by
the regulations.
12BL
Contracts to which this Part does not apply
This Part does not apply to a consumer
contract that is the constitution of a company, managed investment scheme or
other kind of body.
12BM
Contraventions of this Subdivision etc.
Conduct is not taken, for the purposes
of this Act, to contravene this Subdivision (or this Division) merely because
of subsection 12BF(1).
Subdivision C—Unconscionable conduct
12CA
Unconscionable conduct within the meaning of the unwritten law of the States
and Territories
(1) A person must not, in trade or commerce,
engage in conduct in relation to financial services if the conduct is
unconscionable within the meaning of the unwritten law, from time to time, of
the States and Territories.
(2) This section does not apply to conduct
that is prohibited by section 12CB.
12CB
Unconscionable conduct
(1) A person must not, in trade or commerce,
in connection with the supply or possible supply of financial services to a
person, engage in conduct that is, in all the circumstances, unconscionable.
(2) Without limiting the matters to which the
court may have regard for the purpose of determining whether a person (the supplier)
has contravened subsection (1) in connection with the supply or possible
supply of services to a person (the consumer), the court may have
regard to:
(a) the relative strengths of the
bargaining positions of the supplier and the consumer; and
(b) whether, as a result of conduct
engaged in by the supplier, the consumer was required to comply with conditions
that were not reasonably necessary for the protection of the legitimate
interests of the supplier; and
(c) whether the consumer was able to
understand any documents relating to the supply or possible supply of the
services; and
(d) whether any undue influence or
pressure was exerted on, or any unfair tactics were used against, the consumer
or a person acting on behalf of the consumer by the supplier or a person acting
on behalf of the supplier in relation to the supply or possible supply of the
services; and
(e) the amount for which, and the
circumstances under which, the consumer could have acquired identical or
equivalent services from a person other than the supplier.
(3) A person is not taken for the purposes of
this section to engage in unconscionable conduct in connection with the supply
or possible supply of financial services to another person merely because the
person:
(a) institutes legal proceedings in
relation to that supply or possible supply; or
(b) refers a dispute or claim in
relation to that supply or possible supply to arbitration.
(4) For the purpose of determining whether a
person has contravened subsection (1) in connection with the supply or
possible supply of financial services to another person:
(a) the court must not have regard to
any circumstances that were not reasonably foreseeable at the time of the
alleged contravention; and
(b) the court may have regard to
conduct engaged in, or circumstances existing, before the commencement of this
section.
(5) A reference in this section to financial
services is a reference to financial services of a kind ordinarily acquired for
personal, domestic or household use.
12CC
Unconscionable conduct in business transactions
(1) A person must not, in trade or commerce,
in connection with:
(a) the supply or possible supply of
financial services (see subsection (6)) to another person (other than a
listed public company); or
(b) the acquisition or possible
acquisition of financial services (see subsection (7)) from another person
(other than a listed public company);
engage in conduct that is, in all the circumstances,
unconscionable.
(2) Without in any way limiting the matters
to which the court may have regard for the purpose of determining whether a
person (the supplier) has contravened subsection (1) in
connection with the supply or possible supply of financial services to another
person (the service recipient), the court may have regard to:
(a) the relative strengths of the
bargaining positions of the supplier and the service recipient; and
(b) whether, as a result of conduct
engaged in by the supplier, the service recipient was required to comply with
conditions that were not reasonably necessary for the protection of the
legitimate interests of the supplier; and
(c) whether the service recipient was
able to understand any documents relating to the supply or possible supply of
the financial services; and
(d) whether any undue influence or
pressure was exerted on, or any unfair tactics were used against, the service
recipient or a person acting on behalf of the service recipient by the supplier
or a person acting on behalf of the supplier in relation to the supply or
possible supply of the financial services; and
(e) the amount for which, and the
circumstances under which, the service recipient could have acquired identical
or equivalent financial services from a person other than the supplier; and
(f) the extent to which the supplier’s
conduct towards the service recipient was consistent with the supplier’s
conduct in similar transactions between the supplier and other like service
recipients; and
(g) if the person is a corporation—the
requirements of any applicable industry code (see subsection (11)); and
(h) the requirements of any other
industry code (see subsection (11)), if the service recipient acted on the
reasonable belief that the supplier would comply with that code; and
(i) the extent to which the supplier
unreasonably failed to disclose to the service recipient:
(i) any intended conduct
of the supplier that might affect the interests of the service recipient; and
(ii) any risks to the
service recipient arising from the supplier’s intended conduct (being risks
that the supplier should have foreseen would not be apparent to the service
recipient); and
(j) if there is a contract between
the supplier and the service recipient for the supply of the financial
services:
(i) the extent to which
the supplier was willing to negotiate the terms and conditions of the contract
with the service recipient; and
(ii) the terms and
conditions of the contract; and
(iii) the conduct of the
supplier and the service recipient in complying with the terms and conditions
of the contract; and
(iv) any conduct that the
supplier or the service recipient engaged in, in connection with their
commercial relationship, after they entered into the contract; and
(ja) without limiting
paragraph (j), whether the supplier has a contractual right to vary
unilaterally a term or condition of a contract between the supplier and the
service recipient for the supply of the financial services; and
(k) the extent to which the supplier
and the service recipient acted in good faith.
(3) Without in any way limiting the matters
to which the court may have regard for the purpose of determining whether a
person (the acquirer) has contravened subsection (1) in
connection with the acquisition or possible acquisition of financial services
from a person (the business supplier), the court may have regard
to:
(a) the relative strengths of the
bargaining positions of the acquirer and the business supplier; and
(b) whether, as a result of conduct
engaged in by the acquirer, the business supplier was required to comply with
conditions that were not reasonably necessary for the protection of the
legitimate interests of the acquirer; and
(c) whether the business supplier was
able to understand any documents relating to the acquisition or possible
acquisition of the financial services; and
(d) whether any undue influence or
pressure was exerted on, or any unfair tactics were used against, the business
supplier or a person acting on behalf of the business supplier by the acquirer
or a person acting on behalf of the acquirer in relation to the acquisition or
possible acquisition of the financial services; and
(e) the amount for which, and the
circumstances in which, the business supplier could have supplied identical or
equivalent financial services to a person other than the acquirer; and
(f) the extent to which the
acquirer’s conduct towards the business supplier was consistent with the
acquirer’s conduct in similar transactions between the acquirer and other like
business suppliers; and
(g) if the person is a corporation—the
requirements of any applicable industry code (see subsection (11)); and
(h) the requirements of any other
industry code (see subsection (11)), if the business supplier acted on the
reasonable belief that the acquirer would comply with that code; and
(i) the extent to which the acquirer
unreasonably failed to disclose to the business supplier:
(i) any intended conduct
of the acquirer that might affect the interests of the business supplier; and
(ii) any risks to the
business supplier arising from the acquirer’s intended conduct (being risks
that the acquirer should have foreseen would not be apparent to the business
supplier); and
(j) if there is a contract between
the acquirer and the business supplier for the acquisition of the financial
services:
(i) the extent to which
the acquirer was willing to negotiate the terms and conditions of the contract
with the business supplier; and
(ii) the terms and
conditions of the contract; and
(iii) the conduct of the
acquirer and the business supplier in complying with the terms and conditions
of the contract; and
(iv) any conduct that the
acquirer or the business supplier engaged in, in connection with their
commercial relationship, after they entered into the contract; and
(ja) without limiting paragraph (j),
whether the acquirer has a contractual right to vary unilaterally a term or
condition of a contract between the acquirer and the business supplier for the
acquisition of the financial services; and
(k) the extent to which the acquirer
and the business supplier acted in good faith.
(4) A person is not taken for the purposes of
this section to engage in unconscionable conduct in connection with:
(a) the supply or possible supply of
financial services to another person; or
(b) the acquisition or possible
acquisition of financial services from another person;
merely because the person institutes legal proceedings in
relation to that supply, possible supply, acquisition or possible acquisition
or refers a dispute or claim in relation to that supply, possible supply,
acquisition or possible acquisition to arbitration.
(5) For the purpose of determining whether a
person has contravened subsection (1) in connection with the supply,
possible supply, acquisition, or possible acquisition of financial products or
financial services:
(a) the court must not have regard to
any circumstances that were not reasonably foreseeable at the time of the
alleged contravention; and
(b) the court may have regard to
circumstances existing before the commencement of this section but not to
conduct engaged in before that commencement.
(6) Subject to subsection (8), a
reference in this section to the supply or possible supply of financial
services is a reference to the supply or possible supply of financial
services to a person whose acquisition or possible acquisition of the financial
services is or would be for the purpose of trade or commerce.
(7) Subject to subsection (9), a
reference in this section to the acquisition or possible acquisition of
financial services is a reference to the acquisition or possible
acquisition of financial services by a person whose acquisition or possible
acquisition of the financial services is or would be for the purpose of trade
or commerce.
(11) In this section:
applicable industry code, in relation to a
corporation, has the same meaning as it has in subsection 51ACA(1) of the Competition
and Consumer Act 2010.
industry code has the same meaning as it has
in subsection 51ACA(1) of the Competition and Consumer Act 2010.
listed public company has the same meaning as
it has in the Income Tax Assessment Act 1997.
Subdivision D—Consumer protection
12DA
Misleading or deceptive conduct
(1) A person must not, in trade or commerce,
engage in conduct in relation to financial services that is misleading or
deceptive or is likely to mislead or deceive.
(1A) Conduct:
(a) that contravenes:
(i) section 670A of
the Corporations Act (misleading or deceptive takeover document); or
(ii) section 728 of
the Corporations Act (misleading or deceptive fundraising document); or
(b) in relation to a disclosure
document or statement within the meaning of section 953A of the
Corporations Act; or
(c) in relation to a disclosure
document or statement within the meaning of section 1022A of the
Corporations Act;
does not contravene subsection (1). For this purpose,
conduct contravenes the provision even if the conduct does not constitute an
offence, or does not lead to any liability, because of the availability of a
defence.
(2) Nothing in sections 12DB to 12DN
limits by implication the generality of subsection (1).
12DB
False or misleading representations
(1) A person must not, in trade or commerce,
in connection with the supply or possible supply of financial services, or in
connection with the promotion by any means of the supply or use of financial
services:
(a) make a false or misleading
representation that services are of a particular standard, quality, value or
grade; or
(b) make a false or misleading
representation that a particular person has agreed to acquire services; or
(c) make a false or misleading
representation that purports to be a testimonial by any person relating to
services; or
(d) make a false or misleading
representation concerning:
(i) a testimonial by any
person; or
(ii) a representation that
purports to be such a testimonial;
relating to services; or
(e) make a false or misleading
representation that services have sponsorship, approval, performance
characteristics, uses or benefits; or
(f) make a false or misleading
representation that the person making the representation has a sponsorship,
approval or affiliation; or
(g) make a false or misleading
representation with respect to the price of services; or
(h) make a false or misleading
representation concerning the need for any services; or
(i) make
a false or misleading representation concerning the existence, exclusion or
effect of any condition, warranty, guarantee, right or remedy (including an
implied warranty under section 12ED); or
(j) make
a false or misleading representation concerning a requirement to pay for a
contractual right that:
(i) is wholly or partly
equivalent to any condition, warranty, guarantee, right or remedy (including an
implied warranty under section 12ED); and
(ii) a person has under a
law of the Commonwealth, a State or a Territory (other than an unwritten law).
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(1A) For the purposes of applying
subsection (1) in relation to a proceeding concerning a representation of
a kind referred to in paragraph (1)(c) or (d), the representation is taken
to be misleading unless evidence is adduced to the contrary.
(1B) To avoid doubt, subsection (1A) does
not:
(a) have the effect that, merely
because such evidence to the contrary is adduced, the representation is not
misleading; or
(b) have the effect of placing on any
person an onus of proving that the representation is not misleading.
(2) Conduct:
(a) that contravenes:
(i) section 670A of
the Corporations Act (misleading or deceptive takeover document); or
(ii) section 728 of
the Corporations Act (misleading or deceptive fundraising document); or
(b) in relation to a disclosure
document or statement within the meaning of section 953A of the
Corporations Act; or
(c) in relation to a disclosure
document or statement within the meaning of section 1022A of the
Corporations Act;
does not contravene subsection (1). For this purpose,
conduct contravenes the provision even if the conduct does not constitute an
offence, or does not lead to any liability, because of the availability of a
defence.
(3) An offence under subsection 12GB(1)
relating to subsection (1) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
12DC
False or misleading representations in relation to financial products that
involve interests in land
(1) A person must not, in trade or commerce,
in connection with the sale or grant, or the possible sale or grant, of a
financial product that consists of, or includes, an interest in land, or in
connection with the promotion by any means of a financial product that consists
of, or includes, an interest in land:
(a) represent that the person has a
sponsorship, approval or affiliation it does not have; or
(b) make a false or misleading
representation concerning the nature of the interest in the land, the price
payable for the financial product, the location of the land, the
characteristics of the land, the use to which the land is capable of being put
or may lawfully be put or the existence or availability of facilities
associated with the land.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(1A) An offence under subsection 12GB(1)
relating to subsection (1) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2A) A person
contravenes this subsection if:
(a) a person uses physical force or
undue harassment or coercion; and
(b) the person uses such force,
harassment or coercion in connection with the sale or grant, or the possible
sale or grant, of a financial product mentioned in subsection (1), or the
payment for such a financial product.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2C) For the purposes of the application of the Criminal
Code in relation to an offence under subsection 12GB(1), strict liability
applies to paragraph (2A)(b) of this section.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2D) Nothing in this section is to be taken as
implying that other provisions in this Subdivision do not apply in relation to
the supply or acquisition, or the possible supply or acquisition, of a
financial product mentioned in subsection (1).
(3) In this section:
interest, in relation to land, means:
(a) a legal or equitable estate or
interest in the land; or
(b) a right of occupancy of the land,
or of a building or part of a building erected on the land, arising by virtue
of the holding of shares, or by virtue of a contract to purchase shares, in an
incorporated company that owns the land or building; or
(c) a right, power or privilege over,
or in connection with, the land.
12DD
Cash price to be stated in certain circumstances
(1) A person must not, in trade or commerce,
in connection with:
(a) the supply or possible supply of
financial services; or
(b) the promotion by any means of the
supply or use of financial services;
make a representation about an amount that, if paid, would
constitute a part of the consideration for the supply of the services unless
the person also specifies the cash price for the services.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) This section does not apply to dealings
in securities (within the meaning of Chapter 6 of the Corporations Act).
(3) An offence under subsection 12GB(1)
relating to subsection (1) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
12DE
Offering rebates, gifts, prizes etc.
(1) A person contravenes this subsection if:
(a) the person offers any rebate,
gift, prize or other free item; and
(b) the person offers the rebate,
gift, prize or other free item in trade or commerce, in connection with:
(i) the supply or possible
supply of financial services; or
(ii) the promotion by any
means of the supply or use of financial services; or
(iii) the sale or grant, or
the possible sale or grant, of a financial product that consists of, or
includes, an interest in land; or
(iv) the promotion by any
means of a financial product that consists of, or includes, an interest in
land; and
(c) when the person so offers it, the
person intends not to provide it, or not to provide it as offered.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) For the purposes of the application of
the Criminal Code in relation to subsection (1), paragraphs (1)(b)
and (c) are taken to be circumstances in which the conduct described in paragraph (1)(a)
occurs.
(2A) A person contravenes this subsection if:
(a) the person offers any rebate,
gift, prize or other free item; and
(b) the person offers the rebate,
gift, prize or other free item in trade or commerce, in connection with:
(i) the supply or possible
supply of financial services; or
(ii) the promotion by any
means of the supply or use of financial services; or
(iii) the sale or grant, or
the possible sale or grant, of a financial product that consists of, or
includes, an interest in land; or
(iv) the promotion by any
means of a financial product that consists of, or includes, an interest in
land; and
(c) the person fails, within the time
specified in the offer or (if no such time is specified) within a reasonable
time after making the offer, to provide the rebate, gift, prize or other free
item in accordance with the offer.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2B) Subsection (2A) does not apply if:
(a) the person’s failure to provide
the rebate, gift, prize or other free item in accordance with the offer was due
to the act or omission of another person, or to some other cause beyond the
person’s control; and
(b) the person took reasonable
precautions and exercised due diligence to avoid the failure.
(2C) Subsection (2A) does not apply to an
offer that the person makes to another person if:
(a) the person offers to the other
person a different rebate, gift, prize or other free item as a replacement; and
(b) the other person agrees to receive
the different rebate, gift, prize or other free item.
(2D) For the purposes of the application of the Criminal
Code in relation to subsection (2A), paragraph (2A)(b) is taken
to be a circumstance in which the conduct described in paragraph (2A)(a)
occurs.
(3) For the purposes of the application of
the Criminal Code in relation to an offence under subsection 12GB(1),
strict liability applies in relation to paragraphs (1)(b) and (2A)(b) and
(c) of this section.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) In this section:
interest, in relation to land, has the same
meaning as in subsection 12DC(3).
12DF
Certain misleading conduct in relation to financial services
(1) A person must not, in trade or commerce,
engage in conduct that is liable to mislead the public as to the nature, the
characteristics, the suitability for their purpose or the quantity of any
financial services.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) An offence under subsection 12GB(1)
relating to subsection (1) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
12DG
Bait advertising
(1) A person must not, in trade or commerce,
advertise financial services for supply at a specified price, if there are
reasonable grounds, of which the person is aware or ought reasonably to be
aware, for believing that the person will not be able to offer for supply those
services at that price:
(a) for a period that is; and
(b) in quantities that are;
reasonable having regard to the nature of the market in
which the person carries on business and the nature of the advertisement.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) A person that has, in trade or commerce,
advertised financial services for supply at a specified price must offer such
services for supply at that price:
(a) for a period that is; and
(b) in quantities that are;
reasonable having regard to the nature of the market in
which the person carries on business and the nature of the advertisement.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2A) An offence under subsection 12GB(1)
relating to subsection (1) or (2) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) In a prosecution of a person under
Subdivision G (sections 12GA to 12GO) in relation to a failure to offer
financial services to a person (the customer) in accordance with subsection (2),
it is a defence if the person establishes that:
(a) it offered to supply, or to
procure an alternative supplier to supply, services of the kind advertised to
the customer within a reasonable time, in a reasonable quantity and at the
advertised price; or
(b) it offered to supply immediately,
or to procure an alternative supplier to supply within a reasonable time,
equivalent services to the customer in a reasonable quantity and at the price
at which the first‑mentioned services were advertised;
and, in either case, if the offer was accepted by the
customer, the person has so supplied, or procured an alternative supplier to
supply, services.
Note: A defendant bears a legal burden in relation
to the matters in subsection (3), see section 13.4 of the Criminal
Code.
12DH
Referral selling
(1) A person must not, in trade or commerce,
induce a consumer to acquire financial services by representing that the
consumer will, after the contract to acquire the services is made, receive a
rebate, commission or other benefit in return for:
(a) giving the person the names of
prospective customers; or
(b) otherwise assisting the person to
supply financial services to other consumers;
if receipt of the rebate, commission or other benefit is
contingent on an event occurring after that contract is made.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) An offence under subsection 12GB(1)
relating to subsection (1) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
12DI
Accepting payment without intending or being able to supply as ordered
(1) A person contravenes this subsection if:
(a) the person, in trade or commerce,
accepts payment or other consideration for financial services; and
(b) at the time of acceptance, the
person intends:
(i) not to supply the
financial services; or
(ii) to supply financial
services materially different from the financial services in respect of which
the payment or other consideration is accepted.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) For the purposes of the application of
the Criminal Code in relation to an offence under subsection 12GB(1),
strict liability applies to paragraph (1)(a) of this section.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) A person contravenes this subsection if:
(a) the person, in trade or commerce,
accepts payment or other consideration for financial services; and
(b) at the time of acceptance, there
are reasonable grounds for believing that the person will not be able to supply
the financial services within the period specified by the person or, if no
period is specified, within a reasonable time.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(4) An offence under subsection 12GB(1)
relating to subsection (3) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
12DJ
Harassment and coercion
(1) A person contravenes this subsection if:
(a) the person uses physical force or
undue harassment or coercion; and
(b) the person uses such force,
harassment or coercion in connection with the supply or possible supply of
financial services to a consumer, or the payment for financial services by a
consumer.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
12DK Pyramid
selling of financial products
(1) A person contravenes this section if:
(a) the person is the promoter of, or
(if there are more than one) one of the promoters of, or is a participant in, a
trading scheme to which this section applies; and
(b) another person (the targeted
person), who is a participant in that trading scheme, or has applied or
been invited to become a participant in that trading scheme, makes any payment
to or for the benefit of the person; and
(c) the targeted person is induced to
make the payment because the prospect is held out to him or her of receiving
payments or other benefits in respect of the introduction (whether by himself
or herself or by another person) of other persons who become participants in
that trading scheme.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) A person also contravenes this section
if:
(a) the person is the promoter of, or
(if there are more than one) one of the promoters of, is a participant in, or
is otherwise acting in accordance with, a trading scheme to which this section
applies; and
(b) the person, by holding out to
another person (the targeted person) the prospect of receiving
payments or other benefits in respect of the introduction (whether by the targeted
person or by another person) of other persons who become participants in that
trading scheme, attempts to induce the targeted person:
(i) if the targeted person
is already a participant in that trading scheme, to make any payment to or for
the benefit of the promoter or any of the promoters or to or for the benefit of
a participant in that trading scheme; or
(ii) if the targeted person
is not already a participant in that trading scheme, to become such a
participant and to make a payment of a kind mentioned in subparagraph (i).
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(3) A person (the promoter)
also contravenes this section if the promoter promotes, or takes part in the
promotion of, a scheme under which:
(a) a payment is to be made by another
person (the targeted person) who participates, or who has applied
or been invited to participate, in the scheme to or for the benefit of the
promoter or another person who takes part in the promotion of the scheme or to
or for the benefit of any person other than the targeted person who
participates in the scheme; and
(b) the inducement for making the
payment is the holding out to the targeted person the prospect of receiving
payments from other persons who may participate in the scheme.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(3A) An offence
under subsection 12GB(1) relating to subsection (1), (2) or (3) of this
section is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) For the
purposes of subsection (1), (2) or (3):
(a) a prospect of a kind mentioned in
that subsection is taken to be held out to a person whether it is held out so
as to confer on him or her a legally enforceable right or not; and
(b) in determining whether an
inducement or attempt to induce is made by holding out a prospect of a kind
mentioned in that subsection, it is sufficient if a prospect of that kind
constitutes or would constitute a substantial part of the inducement; and
(c) any reference to the making of a
payment to or for the benefit of a person includes a reference to the making of
a payment partly to or for the benefit of that person and partly to or for the
benefit of one or more other persons.
(5) For the purposes of this section, a
scheme is a trading scheme to which this section applies if the scheme includes
the following elements:
(a) financial products are to be
provided by the person promoting the scheme (the promoter) or, in
the case of a scheme promoted by 2 or more persons acting in concert (the promoters),
are to be provided by one or more of those persons; and
(b) the financial products so provided
are to be supplied to or for other persons under transactions arranged or
effected by persons who participate in the scheme (each of whom is in this
section referred to as a participant), being persons not all of
whom are promoters.
(6) For the purposes of subsection (5):
(a) a scheme is taken to include the
element referred to in paragraph (5)(b) whether a participant who is not a
promoter acts in relation to a transaction referred to in that paragraph in the
capacity of an employee or agent of the promoter or of one of the promoters or
in any other capacity; and
(b) a scheme includes any arrangements
made in connection with the carrying on of a business, whether those
arrangements are made or recorded wholly or partly in writing or not; and
(c) a reference to the provision of a
financial product by a person includes a reference to the provision of a
financial product under arrangements to which that person is a party.
12DL
Unsolicited credit cards and debit cards
(1) A person must not send another person
(the targeted person) a credit card or a debit card except in
accordance with subsection (2).
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) A person may send the targeted person the
card:
(a) in pursuance of a request in
writing by the person (the liable person) who will be under a
liability to the issuer of the card in respect of the use of the card; or
(b) in renewal or replacement of, or
in substitution for:
(i) a card of the same
kind previously sent to the targeted person in pursuance of a request in
writing by the liable person to the issuer of the previous card; or
(ii) a card of the same
kind previously sent to the targeted person and used for a purpose for which it
was intended to be used.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3) of the Criminal
Code.
(3) Subsection (1) applies only in
relation to the sending of a card by or on behalf of the issuer of the card.
(4) A person must not take any action that
enables:
(a) another person who has a credit
card to use the card as a debit card; or
(b) another person who has a debit
card to use the card as a credit card;
except in accordance with a request in writing by the
other person.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(4A) An offence under subsection 12GB(1)
relating to subsection (1) or (4) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) In this section:
article includes a token, card or document.
credit card means an article that:
(a) is of a kind described in one or
more of the following subparagraphs:
(i) an article of a kind
commonly known as a credit card;
(ii) a similar article
intended for use in obtaining cash, goods or services on credit;
(iii) an article of a kind
that persons carrying on business commonly issue to their customers or
prospective customers for use in obtaining goods or services from those persons
on credit; and
(b) is part of, or provides access to,
a credit facility that is a financial product;
or an article that may be used as an article referred to
in paragraphs (a) and (b).
debit card means:
(a) an article intended for use by a
person in obtaining access to an account that is:
(i) held by the person for
the purpose of withdrawing or depositing cash or obtaining goods or services;
and
(ii) a financial product;
or
(b) an article that may be used as an
article referred to in paragraph (a).
12DM
Assertion of right to payment for unsolicited financial services etc.
(1) A person must not, in trade or commerce,
assert a right to payment from another person for unsolicited financial
services or unsolicited financial products.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(1A) Subsection (1) does not apply if the
person had reasonable cause to believe that there was a right to payment.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1A), see subsection 13.3(3) of the Criminal
Code.
(1AA) A person must not, in trade or commerce, send
to another person an invoice or other document that:
(a) states the amount of a payment, or
sets out the charge, for supplying unsolicited financial services or
unsolicited financial products; and
(b) does not contain a warning statement
that complies with the requirements set out in the regulations.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(1AB) Subsection (1AA) does not apply if the
person had reasonable cause to believe that there was a right to the payment or
charge.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (1AB), see subsection 13.3(3) of the Criminal
Code.
(1B) An offence under subsection 12GB(1)
relating to subsection (1) or (1AA) of this section is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) In a proceeding against a person in
respect of a contravention of this section, the burden lies on the person of
proving that the person had reasonable cause to believe that there was a right
to payment.
12DMA
Liability of recipient for unsolicited financial services etc.
If a person, in trade or commerce,
supplies unsolicited financial services or unsolicited financial products to
another person, the other person:
(a) is not liable to make any payment
for the services or products; and
(b) is not liable for loss or damage
as a result of the supply of the services or products.
12DMB
Assertion of right to payment for unauthorised advertisements
(1) A person must not assert a right to
payment from another person of a charge for placing, in a publication, an
advertisement, for financial services or financial products, relating to:
(a) the other person; or
(b) the other person’s profession,
business, trade or occupation;
unless the person knows, or has reasonable cause to
believe, that the other person authorised the placing of the advertisement.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(2) A person must not send to another person
an invoice or other document that:
(a) states the amount of a payment, or
sets out the charge for placing, in a publication, an advertisement, for
financial services or financial products, relating to:
(i) the other person; or
(ii) the other person’s
profession, business, trade or occupation; and
(b) does not contain a warning
statement that complies with the requirements set out in the regulations;
unless the person knows, or has reasonable cause to
believe, that the other person authorised the placing of the advertisement.
Note: Failure to comply with this subsection is an
offence (see section 12GB).
(3) Subsections (1) and (2) do not apply
to an advertisement that is placed in a publication published by a person who
is:
(a) the publisher of a publication
that has an audited circulation of 10,000 copies or more per week, as confirmed
by the most recent audit of the publication by a body specified in the
regulations; or
(b) a body corporate related to such a
publisher; or
(c) the Commonwealth, a State or a
Territory, or an authority of the Commonwealth, a State or a Territory; or
(d) a person specified in the
regulations.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3): see subsection 13.3(3) of the
Criminal Code.
(4) A person:
(a) is not liable to make any payment
to another person; and
(b) is entitled to recover by action
in a court of competent jurisdiction against another person any payment made by
the person to the other person;
in full or part satisfaction of a charge for placing, in a
publication, an advertisement for financial services or financial products,
unless the person has authorised the publishing of the advertisement.
(5) A person is not taken for the purposes of
this section to have authorised the placing, in a publication, of an
advertisement, unless:
(a) a document authorising the placing
of the advertisement has been signed by the person or by another person
authorised by him or her; and
(b) a copy of the document has been
given to the person before the right to payment of a charge for the placing of
the advertisement is asserted; and
(c) the document specifies:
(i) the name and address
of the person placing the advertisement; and
(ii) particulars of the
advertisement; and
(iii) the amount of the
charge for the placing of the advertisement, or the basis on which the charge
is, or is to be, calculated.
(6) In a proceeding against a person in
relation to a contravention of this section, the person bears the onus of proving
that the person knew or had reasonable cause to believe that the person against
whom a right to payment was asserted had authorised the placing of the
advertisement.
12DN
Application of provisions of this Division to information providers
General rule
(1) Sections 12DA, 12DB, 12DC and 12DF
do not apply to a publication of matter by an information provider if:
(a) in any case—the information
provider made the publication in the course of carrying on a business of
providing information; or
(b) if the information provider is the
Australian Broadcasting Corporation, the Special Broadcasting Service
Corporation or the holder of a licence granted under the Broadcasting
Services Act 1992—the publication was by way of a radio or television
broadcast by the information provider.
Exception—advertisements
(2) Subsection (1) does not apply to a
publication of an advertisement.
Exception—information provider connected with supply of
financial services
(3) Subsection (1) does not apply to a
publication of matter in connection with the supply or possible supply of, or
the promotion by any means of the supply or use of, financial services (the publicised
financial services), if:
(a) the publicised financial services
were services of a kind supplied by the information provider or, if the
information provider is a body corporate, by a body corporate that is related
to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who supplies
financial services of the same kind as the publicised financial services; or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body
corporate that is related to a body corporate that supplies financial services
of the same kind as the publicised financial services.
Exception—information provider connected with sale etc.
of financial products consisting of etc. interests in land
(4) Subsection (1) does not apply to a
publication of matter in connection with the sale or grant, or possible sale or
grant, of financial products that consist of, or include, interests in land, or
the promotion by any means of the sale or grant of financial products that
consist of, or include, interests in land (the publicised financial
products), if:
(a) the publicised financial products
were interests of a kind sold or granted by the information provider or, if the
information provider is a body corporate, by a body corporate that is related
to the information provider; or
(b) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a person who
sells or grants financial products of the same kind as the publicised financial
products; or
(c) the publication was made on behalf
of, or pursuant to a contract, arrangement or understanding with, a body
corporate that is related to a body corporate that sells or grants financial
products of the same kind as the publicised financial products.
Definitions
(5) In this section:
information provider means a person who
carries on a business of providing information.
interest, in relation to land, has the same
meaning as in subsection 12DC(3).
(6) Without limiting subsection (5),
each of the following is an information provider:
(a) the holder of a licence granted
under the Broadcasting Services Act 1992;
(b) a person who is the provider of a
broadcasting service under a class licence under that Act;
(c) the holder of a licence continued
in force by section 5(1) of the Broadcasting Services (Transitional
Provisions and Consequential Amendments) Act 1992;
(d) the Australian Broadcasting
Corporation;
(e) the Special Broadcasting Service
Corporation.
Subdivision E—Conditions and warranties in consumer transactions
12EA
Conflict of laws
If:
(a) the proper law of a contract for
the supply by a person of financial services to a consumer would, but for a
term that it should be the law of some other country or a term to the like
effect, be the law of any part of Australia; or
(b) a contract for the supply by a
person of financial services to a consumer contains a term that purports to
substitute, or has the effect of substituting, provisions of the law of some
other country, or of a State or Territory, for all or any of the provisions of
this Subdivision (sections 12EA to 12ED);
this Subdivision applies to the contract notwithstanding
that term.
12EB
Application of provisions not to be excluded or modified
(1) A term of a contract (including a term
that is not set out in the contract but is incorporated in the contract by
another term of the contract) is void if it purports to exclude, restrict or
modify or has the effect of excluding, restricting or modifying:
(a) the application of all or any of
the provisions of this Subdivision (sections 12EA to 12ED); or
(b) the exercise of a right conferred
by such a provision; or
(c) any liability of the person for
breach of a condition or warranty implied by such a provision.
(2) A term of a contract is not taken to
exclude, restrict or modify the application of a provision of this Subdivision
unless the term does so expressly or is inconsistent with that provision.
12EC
Limitation of liability for breach of certain conditions or warranties
(1) Subject to this section, a term of a
contract for the supply by a person (the supplier) of financial
services other than services of a kind ordinarily acquired for personal,
domestic or household use is not void under section 12EB merely because
the term limits the liability of the supplier for a breach of a condition or
warranty to:
(a) the supplying of the services
again; or
(b) the payment of the cost of having
the services supplied again.
(2) Subsection (1) does not apply in
relation to a term of a contract if the person to whom the services were
supplied establishes that it is not fair or reasonable for the supplier to rely
on that term of the contract.
(3) In determining for the purposes of subsection (2)
whether or not reliance on a term of a contract is fair or reasonable, a court
must have regard to all the circumstances of the case and, in particular, to
the following matters:
(a) the strength of the bargaining
positions of the supplier and the person to whom the services were supplied
(the buyer) relative to each other, taking into account, among
other things, the availability of equivalent services and suitable alternative
sources of supply;
(b) whether the buyer received an
inducement to agree to the term or, in agreeing to the term, had an opportunity
to acquire the services or equivalent services from any source of supply under
a contract that did not include that term;
(c) whether the buyer knew or ought
reasonably to have known of the existence and extent of the term (having
regard, among other things, to any custom of the trade and any previous course
of dealing between the parties).
12ED
Warranties in relation to the supply of financial services
(1) In every contract for the supply of
financial services by a person to a consumer in the course of a business, there
is an implied warranty that:
(a) the services will be rendered with
due care and skill; and
(b) any materials supplied in
connection with those services will be reasonably fit for the purpose for which
they are supplied.
(2) If:
(a) a person supplies financial services
to a consumer in the course of a business; and
(b) the consumer, expressly or by
implication, makes known to the person:
(i) any particular purpose
for which the services are required; or
(ii) the result that he or
she desires the services to achieve;
there is an implied warranty that:
(c) the services supplied under the
contract for the supply of the services; and
(d) any materials supplied in
connection with those services;
will be reasonably fit for that purpose or are of such a
nature and quality that they might reasonably be expected to achieve that
result, except if the circumstances show that the consumer does not rely, or
that it is unreasonable for him or her to rely, on the person’s skill or
judgment.
(2A) If:
(a) there is a breach of an implied
warranty that exists because of this section in a contract made after the
commencement of this subsection; and
(b) the law of a State or Territory is
the proper law of the contract;
the law of the State or Territory applies to limit or
preclude liability for the breach, and recovery of that liability (if any), in
the same way as it applies to limit or preclude liability, and recovery of a
liability, for breach of another term of the contract.
(3) A reference in this section to financial
services does not include a reference to services that are, or are to be,
provided, granted or conferred under a contract of insurance.
Subdivision G—Enforcement and remedies
12GA
Interpretation
In this Subdivision, unless the contrary
intention appears:
(a) a reference to the Court in
relation to a matter is a reference to any court having jurisdiction in the
matter; and
(b) a reference to the Federal Court
is a reference to the Federal Court of Australia; and
(c) a reference to a judgment is a
reference to a judgment, decree or order, whether final or interlocutory.
12GB
Offences against Subdivision D
(1) A person who:
(a) contravenes; or
(b) aids, abets, counsels or procures
a person to contravene; or
(c) induces, or attempts to induce, a
person whether by threats or promises or otherwise, to contravene; or
(d) is in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of; or
(e) conspires with others to
contravene;
a provision of Subdivision D (sections 12DA to 12DN)
other than section 12DA, is guilty of an offence punishable on conviction:
(f) in the case of a person who is
not a body corporate—by a fine not exceeding 2,000 penalty units; or
(g) in the case of a person who is a
body corporate—by a fine not exceeding 10,000 penalty units.
(1A) Subsections 11.2(2) to (5) (inclusive) of
the Criminal Code apply in relation to paragraph (1)(b) of this
section in the same way that they apply in relation to subsection 11.2(1) of
the Criminal Code.
(1B) Subsections 11.5(2) to (5) (inclusive) of
the Criminal Code apply in relation to paragraph (1)(e) of this
section in the same way that they apply in relation to the offence of
conspiracy under subsection 11.5(1) of the Criminal Code.
(2) If:
(a) a person is convicted of 2 or more
offences constituted by, or relating to, contraventions of the same provision
of Subdivision D (sections 12DA to 12DN); and
(b) the contraventions appear to the
Court to have been of the same nature or a substantially similar nature and to
have occurred at or about the same time;
the Court must not, in respect of the offences, impose on
the person fines that, in the aggregate, exceed the maximum fine that would be
applicable in respect of one offence by that person against that provision.
This applies whether or not the person is also convicted of an offence or
offences constituted by, or relating to, another contravention or other
contraventions of that provision that were of a different nature or occurred at
a different time.
(3) If:
(a) a person is convicted of an
offence constituted by, or relating to, a contravention of a provision of
Subdivision D (sections 12DA to 12DN); and
(b) a fine has, or fines have,
previously been imposed on the person by the Court for an offence or offences
constituted by, or relating to, another contravention or other contraventions
of the same provision, being a contravention that, or contraventions each of
which, appears to the Court to have been of the same nature as, or of a
substantially similar nature to, and to have occurred at or about the same time
as, the contravention referred to in paragraph (a);
the Court must not, in respect of the offence referred to
in paragraph (a), impose on the person a fine that exceeds the amount (if
any) by which the maximum fine applicable (under subsection (1)) in
respect of the offence referred to in paragraph (a) is greater than the
amount of the fine, or the sum of the amounts of the fines, referred to in paragraph (b).
This applies whether or not a fine has, or fines have, also previously been
imposed on the person for an offence or offences constituted by, or relating
to, a contravention or contraventions of that provision that were of a
different nature or occurred at a different time.
(4) In proceedings under this section against
a person for contravening a provision of Subdivision D (sections 12DA to
12DN), the Court may:
(a) grant an injunction under section 12GD
against the person in relation to:
(i) the conduct that
constitutes, or is alleged to constitute, the contravention; or
(ii) other conduct of that
kind; or
(b) make an order under section 12GLA
(non‑punitive orders) in relation to the contravention; or
(c) make an order under section 12GLB
(punitive orders requiring adverse publicity) in relation to the contravention.
(5) Sections 11.1, 11.2, 11.3, and 11.4
of the Criminal Code and section 11.6 of the Criminal Code
to the extent that it applies in relation to those sections, do not apply in
relation to an offence against subsection (1).
(6) A prosecution for an offence against subsection (1)
may be commenced within 3 years after the commission of the offence.
12GBA
Pecuniary penalties
(1) If the Court is satisfied that a person:
(a) has contravened a provision of
Subdivision C, D or GC (other than section 12DA); or
(b) has attempted to contravene such a
provision; or
(c) has aided, abetted, counselled or
procured a person to contravene such a provision; or
(d) has induced, or attempted to
induce, a person, whether by threats or promises or otherwise, to contravene
such a provision; or
(e) has been in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of such a provision; or
(f) has
conspired with others to contravene such a provision;
the Court may order the person to pay to the Commonwealth
such pecuniary penalty, in respect of each act or omission by the person to
which this section applies, as the Court determines to be appropriate.
(2) In determining the appropriate pecuniary
penalty, the Court must have regard to all relevant matters including:
(a) the nature and extent of the act
or omission and of any loss or damage suffered as a result of the act or
omission; and
(b) the circumstances in which the act
or omission took place; and
(c) whether the person has previously
been found by the Court in proceedings under this Subdivision to have engaged
in any similar conduct.
(3) The pecuniary penalty payable under
subsection (1) is not to exceed the number of penalty units worked out
using the following table:
|
Number of penalty units
|
|
Item
|
For each act or
omission to which this section applies that relates to ...
|
the number of penalty
units is not to exceed ...
|
|
2
|
a provision of Subdivision C or D (other than
section 12DA)
|
(a) if the person is a body corporate—10,000; or
(b) if the person is not a body corporate—2,000.
|
|
3
|
section 12GYB
|
(a) if the person is a body corporate—150; or
(b) if the person is not a body corporate—30.
|
|
4
|
section 12GYC
|
(a) if the person is a body corporate—250; or
(b) if the person is not a body corporate—50.
|
(4) If conduct constitutes a contravention of
2 or more provisions referred to in paragraph (1)(a):
(a) a proceeding may be instituted
under this Act against a person in relation to the contravention of any one or
more of the provisions; but
(b) a person is not liable to more
than one pecuniary penalty under this section in respect of the same conduct.
12GBB
Pecuniary penalties and offences
(1) The Court must not make an order under
section 12GBA against a person in relation to either of the following
matters (a consumer protection breach):
(a) a contravention of a provision
referred to in paragraph 12GBA(1)(a);
(b) conduct referred to in paragraph
12GBA(1)(b), (c), (d), (e) or (f) that relates to a contravention of a
provision referred to in paragraph 12GBA(1)(a);
if the person has been convicted of an offence constituted
by conduct that is substantially the same as the conduct constituting the
consumer protection breach.
(2) Proceedings for an order under section 12GBA
against a person in relation to a consumer protection breach 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
consumer protection breach.
The proceedings for the order may be resumed if the person
is not convicted of the offence. Otherwise, the proceedings are dismissed.
(3) Criminal proceedings may be started
against a person for conduct that is substantially the same as conduct
constituting a consumer protection breach regardless of whether an order under
section 12GBA has been made against the person in respect of the breach.
(4) 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 an order under
section 12GBA against the individual in relation to a consumer protection
breach (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 consumer protection breach.
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 order.
12GBC
Civil action for recovery of pecuniary penalties
(1) ASIC may institute a proceeding in the
Court for the recovery on behalf of the Commonwealth of a pecuniary penalty
referred to in section 12GBA.
(2) A proceeding under subsection (1)
may be commenced within 6 years after the contravention.
12GBD
Indemnification of officers
Officers not to be indemnified
(1) A body corporate (the first body),
or a body corporate related to the first body, must not indemnify a person
(whether by agreement or by making a payment and whether directly or through an
interposed entity) against any of the following liabilities incurred as an
officer of the first body:
(a) a liability to pay a pecuniary
penalty under section 12GBA;
(b) legal costs incurred in defending
or resisting proceedings in which the person is found to have such a liability.
Penalty: 25 penalty units.
(2) For the purposes of subsection (1),
the outcome of proceedings is the outcome of the proceedings and any appeal in
relation to the proceedings.
(3) Subsection (1) does not authorise
anything that would otherwise be unlawful.
Indemnities are void
(4) Anything that purports to indemnify a
person against a liability is void to the extent that it contravenes
subsection (1).
Application of this section to a person other than a
body corporate
(5) If, as a result of the operation of
Part 2.4 of the Criminal Code, a person other than a body corporate
is:
(a) convicted of an offence (the relevant
offence) against subsection (1) of this section; or
(b) convicted of an offence (the relevant
offence) against section 11.4 of the Criminal Code in relation
to an offence referred to in subsection (1) of this section;
the relevant offence is taken to be punishable on
conviction by a fine not exceeding 5 penalty units.
12GC
Enforcement and recovery of certain fines
(1) If a person on whom a fine has been
imposed for an offence against section 12GB or subsection 12GN(5) defaults
in payment of the fine, a Court may:
(a) exercise any power that the Court
has apart from this section with respect to the enforcement and recovery of
fines imposed by the Court; or
(b) make an order, on the application
of the Minister or ASIC, declaring that the fine is to have effect, and may be
enforced, as if it were a judgment debt under a judgment of the Court.
(2) If a person in relation to whom an order
is made under subsection (1) in respect of a fine gives security for the
payment of the fine, the Court must cancel the order in respect of the fine.
(3) If the Court makes an order in relation
to a person in respect of a fine, the Court may, at any time before the order is
executed in respect of the fine, allow the person a specified time in which to
pay the fine or allow the person to pay the fine by specified instalments, and,
in that case:
(a) the order must not be executed
unless the person fails to pay the fine within that time or fails to pay an
instalment at or before the time when it becomes payable, as the case may be;
and
(b) if the person pays the fine within
that time or pays all the instalments, as the case may be, the order is taken
to have been discharged in respect of the fine.
(4) Subject to subsection (7), an order
under subsection (1) in respect of a fine ceases to have effect:
(a) on payment of the fine; or
(b) if the fine is not paid—on full
compliance with the order.
(5) The term of a sentence of imprisonment
imposed by an order under a law of a State or Territory applied by section 15A
of the Crimes Act 1914 in respect of a fine must be calculated at the
rate of one day’s imprisonment for each $25 of the amount of the fine that is
from time to time unpaid.
(6) Subject to subsection (7), if a
person is required to serve periods of imprisonment under an order or orders
under subsection (1) in respect of 2 or more fines, those periods of
imprisonment must be served consecutively.
(7) Subject to subsection (8), if:
(a) a person would, but for this
subsection, be required under an order or orders under subsection (1) in
respect of 3 or more fines to serve periods of imprisonment in respect of those
fines exceeding in the aggregate 3 years; and
(b) those fines were imposed (whether
or not in the same proceedings) for offences constituted by contraventions that
occurred within a period of 2 years, being contraventions that appear to the
Court to have been of the same nature or a substantially similar nature;
the Court must, by order, declare that the order or orders
are to cease to have effect in respect of those fines after the person has
served an aggregate of 3 years’ imprisonment in respect of those fines.
(8) If subsection (7) would, but for
this subsection, apply to a person with respect to offences committed by the
person within 2 or more overlapping periods of 2 years, the Court must make an
order under that subsection with respect to one only of those periods, being
whichever period would give the person the maximum benefit from the application
of that subsection.
(9) For the purposes of subsection (8),
the Court may vary or revoke an order made under subsection (7).
(10) Paragraphs 15A(1)(b), (c) and (d) of the
Crimes Act 1914 do not apply with respect to fines referred to in subsection (1).
12GCA
Preference must be given to compensation for victims
If:
(a) the Court considers that it is
appropriate:
(i) to impose a fine under
section 12GB on a person (the defendant); or
(ii) to order a person (the
defendant) to pay a pecuniary penalty under section 12GBA;
in respect of a contravention,
or an involvement in a contravention, of this Division; and
(b) it is appropriate to order the
defendant to pay compensation to a person who has suffered loss or damage in
respect of the contravention or the involvement; and
(c) the defendant does not have
sufficient financial resources to pay both the pecuniary penalty or fine and
the compensation;
the Court must give preference to making an order for compensation.
12GD
Injunctions
(1) If, on the application of the Minister,
ASIC or any other person, the Court is satisfied that a person has engaged, or
is proposing to engage, in conduct that constitutes or would constitute:
(a) a contravention of a provision of
this Division; or
(b) attempting to contravene such a
provision; or
(c) aiding, abetting, counselling or
procuring a person to contravene such a provision; or
(d) inducing, or attempting to induce,
whether by threats, promises or otherwise, a person to contravene such a
provision; or
(e) being in any way, directly or
indirectly, knowingly concerned in, or party to, the contravention by a person
of such a provision; or
(f) conspiring with others to
contravene such a provision;
the Court may grant an injunction in such terms as the
Court determines to be appropriate.
(2) If an application for an injunction under
subsection (1) 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 a person has engaged,
or is proposing to engage, in conduct of a kind mentioned in subsection (1).
(3) If 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).
(4) The Court may rescind or vary an
injunction granted under subsection (1) or (3).
(5) 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.
(6) 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.
(7) If the Minister or ASIC makes an
application 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 any undertakings as to damages.
(8) If, in a case to which subsection (7)
does not apply:
(a) the Court would, but for this
subsection, require a person to give an undertaking as to damages or costs; and
(b) the Minister gives the
undertaking;
the Court must accept the undertaking by the Minister and
must not require a further undertaking from any other person.
(9) A reference in this section to a
contravention of a provision of this Division includes a reference to applying
or relying on, or purporting to apply or rely on, a term of a consumer contract
that the Court has declared under section 12GND to be an unfair term.
12GF
Actions for damages
(1) A person who suffers loss or damage by
conduct of another person that contravenes a provision of Subdivision C
(sections 12CA to 12CC) or Subdivision D (sections 12DA to 12DN) may
recover the amount of the loss or damage by action against that other person or
against any person involved in the contravention.
(1A) Subsection (1) has effect subject to
section 12GNA.
Note: Section 12GNA may limit the amount that
the person may recover for a contravention of section 12DA (Misleading or
deceptive conduct) from the other person or from another person involved in the
contravention.
(1B) Despite subsection (1),
if:
(a) a person (the claimant)
makes a claim under subsection (1) in relation to:
(i) economic loss; or
(ii) damage to property;
caused by conduct of another
person (the defendant) that was done in contravention of section 12DA;
and
(b) the claimant suffered the loss or
damage:
(i) as a result partly of
the claimant’s failure to take reasonable care; and
(ii) as a result partly of
the conduct referred to in paragraph (a); and
(c) the defendant:
(i) did not intend to
cause the loss or damage; and
(ii) did not fraudulently
cause the loss or damage;
the damages that the claimant may recover in relation to
the loss or damage are to be reduced to the extent to which the court thinks
just and equitable having regard to the claimant’s share in the responsibility
for the loss or damage.
Note: Subdivision GA also applies proportionate
liability to a claim for damages under this section for a contravention of
section 12DA.
(2) An action under subsection (1) may
be commenced within 6 years after the day on which the cause of action that
relates to the conduct accrued.
12GG
Finding in proceedings to be evidence
In a proceeding against a person under
section 12GF or in an application under subsection 12GM(2) or 12GNB(1) for
an order against a person, a finding of any fact by a court made in proceedings
under section 12GBC, 12GD, 12GLA or 12GLB, or for an offence against
section 12GB, in which that person has been found to have contravened, or
to have been involved in a contravention of, a provision of this Division is
prima facie evidence of that fact. The finding may be proved by production of a
document under the seal of the court from which the finding appears.
12GH
Conduct by directors, employees or agents
(1) If, in a proceeding under this
Subdivision in respect of conduct engaged in by a body corporate, being conduct
in relation to which the Division applies, it is necessary to establish the
state of mind of the body corporate, it is sufficient to show that a director,
employee or agent of the body corporate, being a director, employee or agent by
whom the conduct was engaged in within the scope of the person’s actual or
apparent authority, had that state of mind.
(2) Any conduct engaged in on behalf of a
body corporate:
(a) by a director, employee or agent
of the body corporate within the scope of the person’s actual or apparent
authority; or
(b) by any other person at the
direction or with the consent or agreement (whether express or implied) of a
director, employee or agent of the body corporate, if the giving of the
direction, consent or agreement is within the scope of the actual or apparent
authority of the director, employee or agent;
is taken, for the purposes of this Division, to have been
engaged in also by the body corporate.
(3) If, in a proceeding under this
Subdivision in respect of conduct engaged in by a person other than a body
corporate, being conduct in relation to which a provision of this Division
applies, it is necessary to establish the state of mind of the person, it is
sufficient to show that an employee or agent of the person, being an employee
or agent by whom the conduct was engaged in within the scope of the employee’s
or agent’s actual or apparent authority, had that state of mind.
(4) Conduct engaged in on behalf of a person
(the principal) other than a body corporate:
(a) by an employee or agent of the
person within the scope of the actual or apparent authority of the employee or
agent; or
(b) by any other person at the
direction or with the consent or agreement (whether express or implied) of an
employee or agent of the principal, if the giving of the direction, consent or
agreement is within the scope of the actual or apparent authority of the
employee or agent;
is taken, for the purposes of this Division, to have been
engaged in also by the principal.
(5) A reference in this section to the state
of mind of a person includes a reference to the knowledge, intention, opinion,
belief or purpose of the person and the person’s reasons for the person’s
intention, opinion, belief or purpose.
(6) Part 2.5 of the Criminal Code
does not apply in relation to an offence against a provision of this
Subdivision.
12GI
Defences
(1) Subject to subsection (3), in a
prosecution under this Subdivision in relation to a contravention of a
provision of Subdivision D (sections 12DA to 12DN), it is a defence if the
defendant establishes:
(a) that the contravention in respect of
which the proceeding was instituted was due to reasonable mistake; or
(b) that the contravention in respect
of which the proceeding was instituted was due to reasonable reliance on
information supplied by another person; or
(c) that:
(i) the contravention in
respect of which the proceeding was instituted was due to the act or default of
another person, to an accident or to some other cause beyond the defendant’s
control; and
(ii) the defendant took
reasonable precautions and exercised due diligence to avoid the contravention.
Note: A defendant bears a legal burden in relation
to the matters in subsection (1) (see section 13.4 of the Criminal
Code).
(1A) Paragraph (1)(a) is to be interpreted
as having the same effect in relation to a contravention of a provision of this
Subdivision as section 9.2 of the Criminal Code has in relation to
offences of strict liability.
(2) In paragraphs (1)(b) and (c), another
person does not include a person who was:
(a) an employee or agent of the
defendant; or
(b) in the case of a defendant being a
body corporate, a director, employee or agent of the defendant;
at the time when the contravention occurred.
(3) If a defence provided by subsection (1)
involves an allegation that a contravention was due to reliance on information
supplied by another person or to the act or default of another person, the
defendant is not, without leave of the Court, entitled to rely on that defence
unless he or she has, not later than 7 days before the day on which the hearing
of the proceeding commences, served on the person by whom the proceeding was
instituted a notice in writing giving such information that would identify or
assist in the identification of the other person as was then in his or her
possession.
(4) In a proceeding under this Subdivision in
relation to a contravention of a provision of Subdivision D (sections 12DA
to 12DN) committed by the publication of an advertisement, it is a defence if
the defendant establishes that he or she is a person whose business it is to
publish or arrange for the publication of advertisements and that he or she
received the advertisement for publication in the ordinary course of business
and did not know and had no reason to suspect that its publication would amount
to a contravention of a provision of Subdivision D.
Note: A defendant bears a legal burden in relation
to the matters in subsection (4) (see section 13.4 of the Criminal
Code).
(5) If, in proceedings under
section 12GBA against a person other than a body corporate, it appears to
the Court that the person has, or may have:
(a) engaged in conduct in
contravention of a provision referred to in paragraph (1)(a) of that
section; or
(b) engaged in conduct referred to in
paragraph (1)(b), (c), (d), (e) or (f) of that section that relates to a
contravention of such a provision;
but that the person acted honestly and reasonably and,
having regard to all the circumstances of the case, ought fairly to be excused,
the Court may relieve the person either wholly or partly from liability to pay
a pecuniary penalty under that section.
12GJ
Jurisdiction of courts
(1) Jurisdiction is conferred on the Federal
Court in any matter:
(a) arising under this Division; or
(b) arising under Part 3 in its
application in relation to an investigation of a contravention of this
Division;
in respect of which a civil proceeding may be instituted
under this Subdivision or under Part 3 as so applying.
(2) With respect to any matter:
(a) arising under this Division; or
(b) arising under Part 3 in its
application in relation to an investigation of a contravention of this
Division;
in respect of which a civil proceeding is instituted under
this Subdivision or under Part 3 as so applying:
(c) the several courts of the States
are invested with federal jurisdiction within the limits of their several
jurisdictions, whether those limits are as to locality, subject‑matter or
otherwise; and
(d) subject to the Constitution,
jurisdiction is conferred on the several courts of the Territories.
(3) Nothing in subsection (2) is taken
to enable an inferior court of a State or Territory to grant a remedy other
than a remedy of a kind that the court is able to grant under the law of that
State or Territory.
(4) The jurisdiction conferred by subsection (1)
on the Federal Court is exclusive of the jurisdiction of any other court other
than the jurisdiction of the several courts of the States and Territories under
subsection (2) and the jurisdiction of the High Court under section 75
of the Constitution.
12GK
Transfer of matters
(1) If:
(a) a civil proceeding instituted by a
person is pending in the Federal Court; and
(b) a matter for determination in the
proceeding arose under:
(i) this Division; or
(ii) Part 3 in its
application in relation to an investigation of a contravention of this
Division;
the Federal Court may, subject to subsection (2),
upon the application of a party or of the Federal Court’s own motion, transfer
the matter to a court of a State or Territory and may also transfer to that
court any other matter for determination in the proceeding.
(2) The Federal Court must not transfer a
matter to another court under subsection (1) unless the other court has
power to grant the remedies sought before the Federal Court in the matter and
it appears to the Federal Court that:
(a) the matter arises out of or is
related to a proceeding that is pending in the other court; or
(b) it is otherwise in the interests
of justice that the matter be determined by the other court.
(3) If the Federal Court transfers a matter
to another court under subsection (1):
(a) further proceedings in the matter
must be as directed by the other court; and
(b) the judgment of the other court in
the matter is enforceable throughout Australia and the external Territories as
if it were a judgment of the Federal Court.
(4) If:
(a) a proceeding is pending in a court
(other than the Supreme Court) of a State or Territory; and
(b) a matter for determination in the
proceeding arose under:
(i) this Division; or
(ii) Part 3 in its
application in relation to an investigation of a contravention of this
Division;
the court must, if directed to do so by the Federal Court,
transfer to the Federal Court the matter and such other matters for
determination in the proceeding, as the Federal Court decides, the determination
of which would, apart from any law of a State or of the Northern Territory
relating to cross‑vesting of jurisdiction, be within the jurisdiction of the
Federal Court.
(5) If:
(a) a proceeding is pending in a court
(other than the Supreme Court) of a State or Territory; and
(b) a matter for determination in the
proceeding arose under:
(i) this Division; or
(ii) Part 3 in its
application in relation to an investigation of a contravention of this
Division;
the court may, subject to subsection (6), upon the
application of a party or of the court’s own motion, transfer the matter to a
court (other than the Supreme Court) of a State or Territory other than the
State or Territory referred to in paragraph (a).
(6) The court must not transfer the matter to
another court under subsection (5) unless the other court has power to
grant the remedies sought in the matter and it appears to the court that:
(a) the matter arises out of or is
related to a proceeding that is pending in the other court; or
(b) it is otherwise in the interests
of justice that the matter be determined by the other court.
(7) If a court transfers a matter to another
court under subsection (5), further proceedings in the matter must be as
directed by the other court.
12GL
Transfer of certain proceedings to Family Court
(1) If:
(a) a
civil proceeding is pending in the Federal Court; and
(b) a
matter for determination in the proceeding arises under this Division;
the Federal Court may, on
the application of a party to the proceeding or of its own motion, transfer the
proceeding to the Family Court.
(3) Subject to subsection (4), if a
proceeding is transferred to the Family Court:
(a) the Family Court has jurisdiction
to hear and determine the proceeding; and
(b) the Family Court also has
jurisdiction to hear and determine matters not otherwise within its
jurisdiction (whether under paragraph (a) or otherwise):
(i) that are associated
with matters arising in the proceeding; or
(ii) that, apart from
subsection 32(1) of the Federal Court of Australia Act 1976, the Federal
Court would have had jurisdiction to hear and determine in the proceeding; and
(c) the Family Court may, in and in
relation to the proceeding:
(i) grant such remedies;
and
(ii) make orders of such
kinds; and
(iii) issue, and direct the
issue of, writs of such kinds;
as the Federal Court could have
in and in relation to the proceeding; and
(d) remedies, orders and writs
granted, made or issued by the Family Court in and in relation to the
proceeding have effect, and may be enforced by the Family Court, as if they had
been granted, made or issued by the Federal Court; and
(e) appeals lie from judgments of the
Family Court given in and in relation to the proceeding as if the judgments
were judgments of the Federal Court constituted by a single Judge of that
Court, and do not otherwise lie; and
(f) subject to paragraphs (a) to
(e) (inclusive), this Division, the regulations, the Federal Court of
Australia Act 1976, the Rules of Court made under that Act, and other laws
of the Commonwealth, apply in and in relation to the proceeding as if:
(i) a reference to the
Federal Court (other than in the expression the Court or a Judge)
included a reference to the Family Court; and
(ii) a reference to a Judge
of the Federal Court (other than in the expression the Court or a Judge)
included a reference to a Family Court Judge; and
(iii) a reference to the
expression the Court or a Judge when used in relation to the
Federal Court included a reference to a Family Court Judge sitting in Chambers;
and
(iv) a reference to a
Registrar of the Federal Court included a reference to a Registrar of the
Family Court; and
(v) any other necessary
changes were made.
(4) If any difficulty arises in the
application of paragraphs (3)(c), (d) and (f) in or in relation to a
particular proceeding, the Family Court may, on the application of a party to
the proceeding or of its own motion, give such directions, and make such
orders, as it considers appropriate to resolve the difficulty.
(5) An appeal does not lie from a decision of
the Federal Court in relation to the transfer of a proceeding under this
Division to the Family Court.
12GLA
Non‑punitive orders
(1) The Court may, on application by ASIC,
make one or more of the orders mentioned in subsection (2) in relation to
a person who has engaged in contravening conduct.
(2) The orders that the Court may make in
relation to the person are:
(a) a community service order; and
(b) a probation order for a period of
no longer than 3 years; and
(c) an order requiring the person to
disclose, in the way and to the persons specified in the order, such
information as is so specified, being information that the person has
possession of or access to; and
(d) an order requiring the person to
publish, at the person’s expense and in the way specified in the order, an
advertisement in the terms specified in, or determined in accordance with, the
order.
(3) This section does not limit the Court’s
powers under any other provision of this Act.
(4) In this
section:
community service order, in relation to a
person who has engaged in contravening conduct, means an order directing the
person to perform a service that:
(a) is specified in the order; and
(b) relates to the conduct;
for the benefit of the community or a section of the
community.
Example: The following are examples of community service
orders:
(a) an order requiring a person who has made
false representations to make available a training video which explains
advertising obligations under this Act; and
(b) an order requiring a person who has engaged
in misleading or deceptive conduct in relation to a financial product to carry
out a community awareness program to address the needs of consumers when
purchasing the financial product.
contravening conduct means conduct that:
(a) contravenes a provision of
Subdivision C (sections 12CA to 12CC); or
(b) contravenes a provision of
Subdivision D (sections 12DA to 12DN); or
(c) contravenes a provision of
Subdivision E (sections 12EA to 12ED); or
(d) constitutes an involvement in a
contravention of any of those provisions.
probation order, in relation to a person who
has engaged in contravening conduct, means an order that is made by the Court
for the purpose of ensuring that the person does not engage in the contravening
conduct, similar conduct or related conduct during the period of the order, and
includes:
(a) an order directing the person to
establish a compliance program for employees or other persons involved in the
person’s business, being a program designed to ensure their awareness of the
responsibilities and obligations in relation to the contravening conduct,
similar conduct or related conduct; and
(b) an order directing the person to
establish an education and training program for employees or other persons
involved in the person’s business, being a program designed to ensure their
awareness of the responsibilities and obligations in relation to the
contravening conduct, similar conduct or related conduct; and
(c) an order directing the person to
revise the internal operations of the person’s business which lead to the
person engaging in the contravening conduct.
12GLB
Punitive orders requiring adverse publicity
(1) The Court may, on application by ASIC,
make an adverse publicity order in relation to a person who:
(a) has been ordered to pay a
pecuniary penalty under section 12GBA; or
(b) is guilty of an offence under
section 12GB.
(2) In this section, an adverse
publicity order, in relation to a person, means an order that:
(a) requires the person to disclose,
in the way and to third parties specified in the order, such information as is
so specified, being information that the person has possession of or access to;
and
(b) requires the person to publish, at
the person’s expense and in the way specified in the order, an advertisement in
the terms specified in, or determined in accordance with, the order.
(3) This section does not limit the Court’s
powers under any other provision of this Act.
12GLC
ASIC may issue a public warning notice
Contraventions
(1) ASIC may issue to the public a written
notice containing a warning about the conduct of a person if:
(a) ASIC has reasonable grounds to
suspect that the conduct may constitute a contravention of a provision of
Subdivision C or D; and
(b) ASIC is satisfied that one or more
other persons has suffered, or is likely to suffer, detriment as a result of
the conduct; and
(c) ASIC is satisfied that it is in
the public interest to issue the notice.
Substantiation notices
(2) Without limiting subsection (1), if:
(a) a person refuses to respond to a
substantiation notice given to the person, or fails to respond to the notice
before the end of the substantiation notice compliance period for the notice;
and
(b) ASIC is satisfied that it is in the
public interest to issue a notice under this subsection;
ASIC may issue to the public a written notice containing a
warning that the person has refused or failed to respond to the substantiation
notice within that period, and specifying the matter to which the
substantiation notice related.
Notice is not a legislative instrument
(3) A notice issued under subsection (1)
or (2) is not a legislative instrument.
12GLD
Order disqualifying a person from managing corporations
(1) On application by ASIC, the Court may
make an order disqualifying a person from managing corporations for a period
that the Court considers appropriate if:
(a) the Court is satisfied that the
person has committed, has attempted to commit or has been involved in a
contravention of a provision of Subdivision C or D (other than
section 12DA); and
(b) the Court is satisfied that the
disqualification is justified.
Note 1: Section 206EB of the Corporations Act
2001 provides that a person is disqualified from managing corporations if a
court order is in force under this section. That Act contains various
consequences for persons so disqualified.
Note 2: ASIC must keep a register of persons who have
been disqualified from managing corporations (see section 1274AA of the Corporations
Act 2001).
(2) In determining under subsection (1)
whether the disqualification is justified, the Court may have regard to:
(a) the person’s conduct in relation
to the management, business or property of any corporation; and
(b) any other matters that the Court
considers appropriate.
12GM
Other orders
(1) Without limiting the generality of
section 12GD, if, in a proceeding instituted under, or for an offence
against, this Division, the Court finds that a person who is a party to the
proceeding has suffered, or is likely to suffer, loss or damage by conduct of
another person that was engaged in in contravention of a provision of this
Division, the Court may, whether or not it grants an injunction under section 12GD
or makes an order under section 12GF, 12GLA or 12GLB, 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 (7) of this section) 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) Without limiting the generality of
section 12GD or 12GNB, the Court may, on the application of:
(a) a person who has suffered, or is
likely to suffer, loss or damage by conduct of another person that was engaged
in in contravention of a provision of this Division; or
(b) ASIC in accordance with subsection (3)
on behalf of such a person or 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 (7))
if the Court considers that the order or orders concerned will:
(c) 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
(d) prevent or reduce the loss or damage
suffered, or likely to be suffered, by such a person or persons.
(3) ASIC may only make an application under paragraph (2)(b)
on behalf of one or more persons identified in the application who:
(a) have suffered, or are likely to
suffer, loss or damage by the conduct of another person that was engaged in in
contravention of a provision of this Division; and
(b) have consented in writing to the
application being made before it is made.
(4) An application may be made under subsection (2)
in relation to a contravention of this Division notwithstanding that a
proceeding has not been instituted under another provision of this Part in
relation to that contravention.
(5) An application under subsection (2)
may be made at any time within 6 years after the day on which the cause of
action that relates to the conduct accrued.
(6) For the purpose of determining whether to
make an order under this section in relation to a contravention of Subdivision
C (sections 12CA to 12CC), the Court may have regard to the conduct of
parties to the proceeding since the contravention occurred.
(7) Without limiting the generality of subsections (1)
and (2), the orders referred to in those subsections include the following:
(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 date before the date on which the order is made;
(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 date before the date on which the order is made;
(c) an order refusing to enforce any
or all of the provisions of such a contract;
(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;
(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;
(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 his or her own expense, to supply specified
services to the person who suffered, or is likely to suffer, the loss or
damage;
(g) an order, in relation to an
instrument creating or transferring an interest in land, directing the person
who engaged in the conduct or a person who was involved in the contravention
constituted by the conduct to execute an instrument that:
(i) varies, or has the
effect of varying, the first‑mentioned instrument; or
(ii) terminates or
otherwise affects, or has the effect of terminating or otherwise affecting, the
operation or effect of the first‑mentioned instrument.
(7A) Subsections (1) and (2) have effect
subject to section 12GNA.
Note: Section 12GNA 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 12DA (Misleading or deceptive
conduct) or involvement in such a contravention.
(8) The powers conferred on the Court under
this section in relation to a contract or covenant do not affect any powers
that any other court may have in relation to the contract or covenant in
proceedings instituted in that other court in respect of the contract or
covenant.
(9) In subsection (7):
interest, in relation to land, has the same
meaning as in subsection 12DC(3).
(10) A reference in this section to a
contravention of a provision of this Division includes a reference to applying
or relying on, or purporting to apply or rely on, a term of a consumer contract
that the Court has declared under section 12GND to be an unfair term.
12GN
Power of Court to prohibit payment or transfer of money or other property
(1) If:
(a) proceedings
have been commenced against a person for an offence against section 12GB;
or
(b) an
application has been made under section 12GD for an injunction against a
person in relation to a contravention of a provision of this Division; or
(c) an action has been commenced under
subsection 12GF(1) against a person in relation to a contravention of a
provision of Subdivision D (sections 12DA to 12DN); or
(d) an application for an order under
subsection 12GM(2) or (3) or 12GNB(1) has been or may be made against a person
in relation to a contravention of a provision of this Division;
the Court may, on the application of the Minister or ASIC,
make an order or orders mentioned in subsection (2) if the Court is
satisfied that:
(e) it is necessary or desirable to do
so for the purpose of preserving money or other property held by or on behalf
of a person referred to in paragraph (a), (b), (c) or (d), as the case may
be (the relevant person), if the relevant person is liable or may
become liable under this Division to pay money by way of a fine, damages,
compensation, refund or otherwise or to transfer, sell or refund other
property; and
(f) it will not unduly prejudice the
rights and interests of any other person.
(2) The orders referred to in subsection (1)
are the following:
(a) an order prohibiting, either
absolutely or subject to conditions, 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;
(b) an order prohibiting, either
absolutely or subject to conditions, a person who is holding money 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 other property, to, or to another
person at the direction or request of, the person on whose behalf the money or
other property is held;
(c) an order prohibiting, either
absolutely or subject to conditions, the taking or sending by any person of
money of the relevant person or of an associate of the relevant person to a
place outside the State or Territory in which the money is held;
(d) an order prohibiting, either
absolutely or subject to conditions, the taking, sending or transfer by any
person of other property of the relevant person or of an associate of the
relevant person to a place outside the State or Territory in which the other
property is located;
(e) an order appointing, if the
relevant person is a natural person, a receiver or trustee of the property or
of part of the property of the relevant person with such powers as are
specified in the order.
(3) Subject to subsection (4), an order
under this section may be expressed to operate:
(a) for a period specified in the
order; or
(b) until proceedings under any other
provision of this Part in relation to which the order was made have been
concluded.
(4) An order under this section made on an
application ex parte must not be expressed to operate for a period
exceeding 30 days.
(5) A person who contravenes or fails to
comply with an order by the Court under this section that is applicable to the
person is guilty of an offence punishable on conviction:
(a) in the case of a person not being
a body corporate—by a fine not exceeding 200 penalty units; or
(b) in the case of a person being a
body corporate—by a fine not exceeding 1,000 penalty units.
(5A) Subsection (5) is an offence of strict
liability.
Note: For strict liability, see section 6.1
of the Criminal Code.
(6) Nothing in this section affects the
powers that the Court has apart from this section.
(7) This section has effect subject to the
Bankruptcy Act 1966.
(8) A reference in this section to a person
who is an associate of a relevant person is a reference to:
(a) a person holding money or other
property on behalf of the relevant person; or
(b) if the relevant person is a body
corporate—a wholly owned subsidiary of the relevant person.
(9) A reference in paragraph (1)(b) or (d) to a contravention of a provision of this
Division includes a reference to applying or relying on, or purporting to apply
or rely on, a term of a consumer contract that the Court has declared under
section 12GND to be an unfair term.
12GNA
Limit on liability for misleading or deceptive conduct
State or Territory professional standards law limits
liability
(1) A professional standards law of a State,
the Australian Capital Territory or the Northern Territory applies to limit
occupational liability relating to an action for contravention of section 12DA
in the same way as it limits occupational liability arising under a law of the
State or Territory.
Note: Section 12DA prohibits misleading or
deceptive conduct by a person in relation to financial services.
(2) However,
the professional standards law applies for that purpose:
(a) only in relation to a scheme that
was prescribed by the regulations at the time (the contravention time)
of the contravention; and
(b) as if the scheme were in force
under that law at the contravention time in the form the scheme would have been
in if:
(i) the scheme had not
been amended or revoked under that law since the scheme was first prescribed;
and
(ii) the modifications (if
any) prescribed by the regulations at the contravention time had been made to
the scheme.
Which State’s or Territory’s professional standards law
applies?
(3) For the purposes of working out whether a
professional standards law of a particular State or Territory applies under subsection (1)
in relation to a particular contravention of section 12DA, choice of law
rules operate in relation to the contravention in the same way as they operate
in relation to a tort.
Definitions
(4) In this section:
modifications includes additions, omissions
and substitutions.
occupation includes profession and trade.
occupational association means a body:
(a) that represents the interests of
persons who have the same occupation; and
(b) whose membership is limited
principally to such persons.
occupational liability means civil liability
arising directly or vicariously from anything done or omitted by a member of an
occupational association in the course of his or her occupation.
professional standards law means a law
providing for the limitation of occupational liability by reference to schemes
for limiting that liability that were formulated and published in accordance
with that law.
12GNB
Orders to redress loss or damage suffered by non‑party consumers etc.
Orders
(1) Without limiting the generality of
section 12GD, if:
(a) a person:
(i) engaged in conduct
(the contravening conduct) in contravention of a provision of
Subdivision C or D; or
(ii) is a party to a
consumer contract who is advantaged by a term (the declared term)
of the contract in relation to which the Court has made a declaration under
section 12GND; and
(b) the contravening conduct or
declared term caused, or is likely to cause, a class of persons to suffer loss
or damage; and
(c) the class includes persons who are
non‑party consumers in relation to the contravening conduct or declared term;
the Court may, on the application of ASIC, make such order
or orders (other than an award of damages) as the Court thinks appropriate
against a person referred to in subsection (2) of this section.
Note: The orders that the Court may make include all
or any of the orders set out in section 12GNC.
(2) An order under subsection (1) may be
made against:
(a) if subparagraph (1)(a)(i)
applies—the person who engaged in the contravening conduct, or a person
involved in that conduct; or
(b) if subparagraph (1)(a)(ii)
applies—a party to the contract who is advantaged by the declared term.
(3) The Court must not make an order under
subsection (1) unless the Court considers that the order will:
(a) redress, in whole or in part, the
loss or damage suffered by the non‑party consumers in relation to the
contravening conduct or declared term; or
(b) prevent or reduce the loss or
damage suffered, or likely to be suffered, by the non‑party consumers in
relation to the contravening conduct or declared term.
Application for orders
(4) An application may be made under
subsection (1) even if an enforcement proceeding in relation to the
contravening conduct or declared term has not been instituted.
(5) An application under subsection (1)
may be made at any time within 6 years after the day on which:
(a) if subparagraph (1)(a)(i)
applies—the cause of action that relates to the contravening conduct accrues;
or
(b) if subparagraph (1)(a)(ii)
applies—the declaration is made.
Determining whether to make an order
(6) In determining whether to make an order
under subsection (1) against a person referred to in paragraph (2)(a),
the Court may have regard to the conduct of the person, and of the non‑party
consumers in relation to the contravening conduct, since the contravention
occurred.
(7) In determining whether to make an order
under subsection (1) against a person referred to in
paragraph (2)(b), the Court may have regard to the conduct of the person,
and of the non‑party consumers in relation to the declared term, since the
declaration was made.
(8) In determining whether to make an order
under subsection (1), the Court need not make a finding about either of
the following matters:
(a) which persons are non‑party
consumers in relation to the contravening conduct or declared term;
(b) the nature of the loss or damage
suffered, or likely to be suffered, by such persons.
When a non‑party consumer is bound by an order etc.
(9) If:
(a) an order is made under
subsection (1) against a person; and
(b) the loss or damage suffered, or
likely to be suffered, by a non‑party consumer in relation to the contravening
conduct, or declared term, to which the order relates has been redressed,
prevented or reduced in accordance with the order; and
(c) the non‑party consumer has
accepted the redress, prevention or reduction;
then:
(d) the non‑party consumer is bound by
the order; and
(e) any other order made under
subsection (1) that relates to that loss or damage has no effect in
relation to the non‑party consumer; and
(f) despite any other provision of
this Act or any other law of the Commonwealth, or a State or Territory, no
claim, action or demand may be made or taken against the person by the non‑party
consumer in relation to that loss or damage.
Other
(10) Subsection (1) has effect subject to
section 12GNA.
Note: Section 12GNA may limit the liability,
under an order made under subsection (1) of this section, of a person for
his or her contravention of section 12DA (which is about misleading or
deceptive conduct) or involvement in such a contravention.
(11) This section does not apply in relation to
contravening conduct that occurred before the commencement of this section.
12GNC
Kinds of orders that may be made to redress loss or damage suffered by non‑party
consumers etc.
Without limiting subsection 12GNB(1),
the orders that the Court may make under that subsection against a person (the respondent)
include all or any of the following:
(a) an order declaring the whole or
any part of a contract made between the respondent and a non‑party consumer
referred to in that subsection, or a collateral arrangement relating to such a
contract:
(i) to be void; and
(ii) if the Court thinks
fit—to have been void ab initio or void at all times on and after such date as
is specified in the order (which may be a date that is before the date on which
the order is made);
(b) an order:
(i) varying such a
contract or arrangement in such manner as is specified in the order; and
(ii) if the Court thinks
fit—declaring the contract or arrangement to have had effect as so varied on
and after such date as is specified in the order (which may be a date that is
before the date on which the order is made);
(c) an order refusing to enforce any
or all of the provisions of such a contract or arrangement;
(d) an order directing the respondent
to refund money or return property to a non‑party consumer referred to in that
subsection;
(e) an order directing the respondent,
at his or her own expense, to repair, or provide parts for, goods that have
been supplied under the contract or arrangement to a non‑party consumer
referred to in that subsection;
(f) an order directing the
respondent, at his or her own expense, to supply specified services to a non‑party
consumer referred to in that subsection;
(g) an order, in relation to an
instrument creating or transferring an interest in land (within the meaning of
section 12DC), directing the respondent to execute an instrument that:
(i) varies, or has the
effect of varying, the first‑mentioned instrument; or
(ii) terminates or
otherwise affects, or has the effect of terminating or otherwise affecting, the
operation or effect of the first‑mentioned instrument.
12GND
Declarations
(1) The Court may, on the application of a
party to a consumer contract or on the application of ASIC, declare that a term
of such a contract is an unfair term.
(1A) Subsection (1)
does not apply unless the consumer contract is a standard form contract that
is:
(a) a financial product; or
(b) a contract for the supply, or
possible supply, of services that are financial services.
(2) Subsection (1)
does not limit any other power of the Court to make declarations.
12GO
Intervention by ASIC
(1) ASIC may, with the leave of the Court and
subject to any conditions imposed by the Court, intervene in any proceeding
instituted under this Division.
(2) If ASIC intervenes in a proceeding, it is
taken to be a party to the proceeding and has all the rights, duties and
liabilities of such a party.
Subdivision GA—Proportionate liability for misleading and deceptive conduct
12GP
Application of Subdivision
(1) This Subdivision applies to a claim (an apportionable
claim) if the claim is a claim for damages made under section 12GF
for:
(a) economic loss; or
(b) damage to property;
caused by conduct that was done in a contravention of
section 12DA.
(2) For the purposes of this Subdivision,
there is a single apportionable claim in proceedings in respect of the same
loss or damage even if the claim for the loss or damage is based on more than
one cause of action (whether or not of the same or a different kind).
(3) In this Subdivision, a concurrent
wrongdoer, in relation to a claim, is a person who is one of 2 or more
persons whose acts or omissions (or act or omission) caused, independently of
each other or jointly, the damage or loss that is the subject of the claim.
(4) For the purposes of this Subdivision,
apportionable claims are limited to those claims specified in subsection (1).
(5) For the purposes of this Subdivision, it
does not matter that a concurrent wrongdoer is insolvent, is being wound up or
has ceased to exist or died.
12GQ
Certain concurrent wrongdoers not to have benefit of apportionment
(1) Nothing in this Subdivision operates to
exclude the liability of a concurrent wrongdoer (an excluded concurrent
wrongdoer) in proceedings involving an apportionable claim if:
(a) the concurrent wrongdoer intended
to cause the economic loss or damage to property that is the subject of the
claim; or
(b) the concurrent wrongdoer
fraudulently caused the economic loss or damage to property that is the subject
of the claim.
(2) The liability of an excluded concurrent
wrongdoer is to be determined in accordance with the legal rules (if any) that
(apart from this Subdivision) are relevant.
(3) The liability of any other concurrent
wrongdoer who is not an excluded concurrent wrongdoer is to be determined in
accordance with the provisions of this Subdivision.
12GR
Proportionate liability for apportionable claims
(1) In any
proceedings involving an apportionable claim:
(a) the liability of a defendant who
is a concurrent wrongdoer in relation to that claim is limited to an amount
reflecting that proportion of the damage or loss claimed that the court
considers just having regard to the extent of the defendant’s responsibility
for the damage or loss; and
(b) the court may give judgment
against the defendant for not more than that amount.
(2) If the proceedings involve both an
apportionable claim and a claim that is not an apportionable claim:
(a) liability for the apportionable
claim is to be determined in accordance with the provisions of this
Subdivision; and
(b) liability for the other claim is
to be determined in accordance with the legal rules, if any, that (apart from
this Subdivision) are relevant.
(3) In
apportioning responsibility between defendants in the proceedings:
(a) the court is to exclude that
proportion of the damage or loss in relation to which the plaintiff is
contributorily negligent under any relevant law; and
(b) the court may have regard to the
comparative responsibility of any concurrent wrongdoer who is not a party to
the proceedings.
(4) This section applies in proceedings
involving an apportionable claim whether or not all concurrent wrongdoers are
parties to the proceedings.
(5) A reference in this Subdivision to a
defendant in proceedings includes any person joined as a defendant or other
party in the proceedings (except as a plaintiff) whether joined under this
Subdivision, under rules of court or otherwise.
12GS
Defendant to notify plaintiff of concurrent wrongdoer of whom defendant is
aware
(1) If:
(a) a defendant in proceedings
involving an apportionable claim has reasonable grounds to believe that a
particular person (the other person) may be a concurrent
wrongdoer in relation to the claim; and
(b) the defendant fails to give the
plaintiff, as soon as practicable, written notice of the information that the
defendant has about:
(i) the identity of the
other person; and
(ii) the circumstances that
may make the other person a concurrent wrongdoer in relation to the claim; and
(c) the plaintiff unnecessarily incurs
costs in the proceedings because the plaintiff was not aware that the other
person may be a concurrent wrongdoer in relation to the claim;
the court hearing the proceedings may order that the
defendant pay all or any of those costs of the plaintiff.
(2) The court may order that the costs to be
paid by the defendant be assessed on an indemnity basis or otherwise.
12GT
Contribution not recoverable from defendant
A defendant against whom judgment is
given under this Subdivision as a concurrent wrongdoer in relation to an
apportionable claim:
(a) cannot be required to contribute
to any damages or contribution recovered from another concurrent wrongdoer in
respect of the apportionable claim (whether or not the damages or contribution
are recovered in the same proceedings in which judgment is given against the
defendant); and
(b) cannot be required to indemnify
any such wrongdoer.
12GU
Subsequent actions
(1) In relation to an apportionable claim,
nothing in this Subdivision or any other law prevents a plaintiff who has
previously recovered judgment against a concurrent wrongdoer for an
apportionable part of any damage or loss from bringing another action against
any other concurrent wrongdoer for that damage or loss.
(2) However, in any proceedings in respect of
any such action, the plaintiff cannot recover an amount of damages that, having
regard to any damages previously recovered by the plaintiff in respect of the
damage or loss, would result in the plaintiff receiving compensation for damage
or loss that is greater than the damage or loss actually sustained by the
plaintiff.
12GV
Joining non‑party concurrent wrongdoer in the action
(1) The court may give leave for any one or
more persons to be joined as defendants in proceedings involving an
apportionable claim.
(2) The court is not to give leave for the
joinder of any person who was a party to any previously concluded proceedings
in respect of the apportionable claim.
12GW
Application of Subdivision
Nothing
in this Subdivision:
(a) prevents a person being held
vicariously liable for a proportion of an apportionable claim for which another
person is liable; or
(b) prevents a partner from being held
severally liable with another partner for that proportion of an apportionable
claim for which the other partner is liable; or
(c) affects the operation of any other
Act to the extent that it imposes several liability on any person in respect of
what would otherwise be an apportionable claim.
Subdivision GB—Infringement notices
12GX
Purpose and effect of this Subdivision
(1) The purpose of this Subdivision is to
provide for the issue of an infringement notice to a person for an alleged
contravention of an infringement notice provision as an alternative to
proceedings for an order under section 12GBA.
(2) This Subdivision does not:
(a) require an infringement notice to
be issued to a person for an alleged contravention of an infringement notice
provision; or
(b) affect the liability of a person
to proceedings under Subdivision G (sections 12GA to 12GO) in relation to
an alleged contravention of an infringement notice provision if:
(i) an infringement notice
is not issued to the person for the alleged contravention; or
(ii) an infringement notice
issued to a person for the alleged contravention is withdrawn under
section 12GXG; or
(c) prevent a Court from imposing a
higher penalty than the penalty specified in the infringement notice if the
person does not comply with the notice.
12GXA
Issue of an infringement notice
(1) If ASIC has reasonable grounds to believe
that a person has contravened an infringement notice provision, ASIC may issue
an infringement notice to the person.
(2) ASIC must not issue more than one
infringement notice to the person for the same alleged contravention of the
infringement notice provision.
(3) The infringement notice does not have any
effect if the notice:
(a) is issued more than 12 months
after the day on which the contravention of the infringement notice provision
is alleged to have occurred; or
(b) relates to more than one alleged
contravention of an infringement notice provision by the person.
12GXB
Matters to be included in an infringement notice
An infringement notice must:
(a) be identified by a unique number;
and
(b) state the day on which it is
issued; and
(c) state the name and address of the
person to whom it is issued; and
(d) state that it is being issued by
ASIC; and
(e) state how ASIC may be contacted;
and
(f) give details of the alleged
contravention by the person, including:
(i) the date of the
alleged contravention; and
(ii) the particular
infringement notice provision that was allegedly contravened; and
(g) state the maximum pecuniary
penalty that the Court could order the person to pay under section 12GBA
for the alleged contravention; and
(h) specify the penalty that is
payable in relation to the alleged contravention; and
(i) state that the penalty is payable
within the infringement notice compliance period for the notice; and
(j) state that the penalty is payable
to ASIC on behalf of the Commonwealth; and
(k) explain how payment of the penalty
is to be made; and
(l) explain the effect of
sections 12GXD, 12GXE, 12GXF and 12GXG.
12GXC
Amount of penalty
The penalty to be specified in an
infringement notice that is to be issued to a person must be a pecuniary
penalty equal to the number of penalty units worked out using the following
table:
|
Number of penalty units
|
|
Item
|
If the infringement
notice is for an alleged contravention of ...
|
the number of penalty
units is ...
|
|
2
|
a provision of Subdivision C or D (other than
section 12DA, section 12DE, subsection 12DG(1) or section 12DI
or 12DM)
|
(a) if the person is a body corporate—60; or
(b) if the person is not a body corporate—12.
|
|
3
|
section 12GYB
|
(a) if the person is a body corporate—30; or
(b) if the person is not a body corporate—6.
|
|
4
|
section 12GYC
|
(a) if the person is a body corporate—50; or
(b) if the person is not a body corporate—10.
|
12GXD
Effect of compliance with an infringement notice
(1) This section applies if:
(a) an infringement notice for an
alleged contravention of an infringement notice provision is issued to a
person; and
(b) the person pays the penalty
specified in the infringement notice within the infringement notice compliance
period and in accordance with the notice; and
(c) the infringement notice is not
withdrawn under section 12GXG.
(2) The person is not, merely because of the
payment, regarded as:
(a) having contravened the
infringement notice provision; or
(b) having been convicted of an
offence constituted by the same conduct that constituted the alleged
contravention of the infringement notice provision.
(3) No proceedings (whether criminal or
civil) may be started or continued against the person by, or on behalf of, the
Commonwealth or ASIC in relation to:
(a) the alleged contravention of the
infringement notice provision; or
(b) an offence constituted by the same
conduct that constituted the alleged contravention.
12GXE
Effect of failure to comply with an infringement notice
If:
(a) an infringement notice for an
alleged contravention of an infringement notice provision is issued to a
person; and
(b) the person fails to pay the
penalty specified in the infringement notice within the infringement notice
compliance period and in accordance with the notice; and
(c) the infringement notice is not
withdrawn under section 12GXG;
the person is liable to proceedings under Subdivision G
(sections 12GA to 12GO) in relation to the alleged contravention of the
infringement notice provision.
12GXF
Infringement notice compliance period for infringement notice
(1) Subject to this section, the infringement
notice 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 infringement notice 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 person who was issued the infringement notice.
(5) A failure to comply with
subsection (4) does not affect the validity of the extension.
(6) If ASIC extends the infringement notice
compliance period for an infringement notice, a reference in this Act to the
infringement notice compliance period for an infringement notice is taken to be
a reference to the infringement notice compliance period as so extended.
12GXG
Withdrawal of an infringement notice
Representations to ASIC
(1) The person to whom an infringement notice
has been issued for an alleged contravention of an infringement notice
provision may make written representations to ASIC seeking the withdrawal of
the infringement notice.
(2) Evidence or information that the person,
or a representative of the person, gives to ASIC in the course of making
representations under subsection (1) is not admissible in evidence against
the person or representative in any proceedings (other than proceedings for an
offence based on the evidence or information given being false or misleading).
Withdrawal by ASIC
(3) ASIC may, by written notice (the withdrawal
notice) given to a person who has been issued an infringement notice
for an alleged contravention of an infringement notice provision, withdraw the
infringement notice if ASIC is satisfied that it is appropriate to do so.
(4) Subsection (3) applies whether or
not the person has made representations seeking the withdrawal.
Content of withdrawal notices
(5) The withdrawal notice must state:
(a) the name and address of the
person; and
(b) the day on which the infringement
notice was issued to the person; and
(c) that the infringement notice is
withdrawn; and
(d) that proceedings under Subdivision
G (sections 12GA to 12GO) may be started or continued against the person
in relation to:
(i) the alleged
contravention of the infringement notice provision; or
(ii) an offence constituted
by the same conduct that constituted the alleged contravention.
Time limit for giving withdrawal notices
(6) To be effective, the withdrawal notice
must be given to the person within the infringement notice compliance period
for the infringement notice.
Refunds
(7) If the infringement notice is withdrawn
after the person has paid the penalty specified in the infringement notice,
ASIC must refund to the person an amount equal to the amount paid.
Subdivision GC—Substantiation notices
12GY
ASIC may require claims to be substantiated etc.
(1) This section applies if a person has made
a claim or representation promoting, or apparently intended to promote, a
supply, or possible supply, of financial services by that or any other person.
(2) ASIC may give the person who has made the
claim or representation a written notice that requires the person to do one or
more of the following:
(a) give information and/or produce
documents to ASIC that could be capable of substantiating or supporting the
claim or representation;
(b) give information and/or produce
documents to ASIC that could be capable of substantiating:
(i) the quantities in
which; and
(ii) the period for which;
the person is or will be able to
make a supply to which the claim or representation relates (whether or not the
claim or representation relates to those quantities or that period);
(c) give information and/or produce
documents to ASIC that are of a kind specified in the notice;
within 21 days after the notice is given to the person.
(3) Any kind of information or documents that
ASIC specifies under
paragraph (2)(c) must be a kind that ASIC is satisfied is relevant to:
(a) substantiating or supporting the
claim or representation; or
(b) substantiating the quantities in
which, or the period for which, the person is or will be able to make such a
supply.
(4) The notice must:
(a) name the person to whom it is
given; and
(b) specify the claim or
representation to which it relates; and
(c) explain the effect of
sections 12GYA, 12GYB and 12GYC.
(5) The notice may relate to more than one
claim or representation that the person has made.
(6) This section does not apply to a person
in relation to a claim or representation made by the person if the person:
(a) is a prescribed information
provider within the meaning of section 12DN; and
(b) made the claim or representation
by publishing it on behalf of another person in the course of carrying on a
business of providing information; and
(c) does not have a commercial
relationship with the other person other than for the purpose of:
(i) publishing claims or
representations promoting, or apparently intended to promote, the other
person’s business or other activities; or
(ii) the other person
supplying financial services to the person.
12GYA
Extending periods for complying with substantiation notices
(1) A person who has been given a
substantiation notice may, at any time within 21 days after the notice was
given to the person, apply in writing to ASIC for an extension of the period
for complying with the notice.
(2) ASIC may, by written notice given to the
person, extend the period within which the person must comply with the notice.
12GYB
Compliance with substantiation notices
(1) A person who is given a substantiation
notice must comply with it within the substantiation notice compliance period
for the notice.
(2) The substantiation notice
compliance period for a substantiation notice is:
(a) the period of 21 days specified in
the notice; or
(b) if the period for complying with
the notice has been extended under section 12GYA—the period as so
extended.
(3) Despite subsection (1), an
individual may refuse or fail to give particular information or produce a
particular document in compliance with a substantiation notice on the ground
that the information or production of the document might tend to incriminate
the individual or to expose the individual to a penalty.
12GYC
False or misleading information etc.
(1) A person must not, in compliance or
purported compliance with a substantiation notice:
(a) give to ASIC false or misleading
information; or
(b) produce to ASIC documents that
contain false or misleading information.
(2) This section does not apply to:
(a) information that the person could
not have known was false or misleading; or
(b) the production to ASIC of a
document containing false or misleading information if the document is
accompanied by a statement of the person that the information is false or
misleading.
Subdivision H—Miscellaneous
12HA
Relationship of this Subdivision to Part 3
(1) The powers (and any restrictions on them)
in this Subdivision are in addition to any powers ASIC has under Part 3
when investigating a contravention, or suspected contravention, of a provision
of this Division. The powers may be used only when ASIC is so investigating.
(2) For the purposes of Part 3, an
exercise of a power in this Subdivision is taken to be an exercise of that
power under, or for the purposes of, Part 3.
12HB
Disclosure of documents by ASIC
(1) If:
(a) a proceeding is instituted against
a person under section 12GD; or
(b) an application is made under section 12GLA
or 12GLB or subsection 12GM(2), 12GN(1) or 12GNB(1) for an order against a
person;
ASIC must, at the request of the person and upon payment
of the prescribed fee (if any), give to the person:
(c) a copy of every document that has
been given to, or obtained by, ASIC in connection with the matter to which the
application, notice or proceeding relates and tends to establish the case of
the person; and
(d) a copy of any other document in
ASIC’s possession that comes to ASIC’s attention in connection with the matter
to which the application, notice or proceeding relates and tends to establish
the case of the person;
not being a document obtained from the person or prepared
by an officer or professional adviser of ASIC.
(2) If ASIC does not comply with a request
under subsection (1), the Court must, subject to subsection (3), upon
application by the person who made the request, make an order directing ASIC to
comply with the request.
(3) The Court may refuse to make an order
under subsection (2) in respect of a document or part of a document if the
Court considers it inappropriate to make the order by reason that the
disclosure of the contents of the document or part of the document would
prejudice any person, or for any other reason.
(4) Before the Court gives a decision on an
application under subsection (2), the Court may require any documents to
be produced to it for inspection.
(5) An order under this section may be
expressed to be subject to conditions specified in the order.
12HC
Prosecutions
(1) Prosecutions for offences:
(a) against this Division; or
(b) against Part 3 in its
application in relation to an investigation of a contravention of this
Division;
must be brought only in the Court.
(2) Jurisdiction is conferred on the Court to
hear and determine such prosecutions.
(3) Proceedings
before the Court under this section, other than proceedings instituted by:
(a) ASIC; or
(b) a person authorised in writing by
ASIC;
must not be instituted except with the consent in writing
of the Minister or of a person authorised by the Minister in writing to give
such consents.
12HD
Jurisdiction of Court to make declarations and orders
(1) Subject to this section, a person may
institute a proceeding in the Court seeking, in relation to a matter arising
under this Division or under Part 3 in its application in relation to an
investigation of a contravention of this Division, the making of:
(a) a declaration in relation to the
operation or effect of any provision of:
(i) this Division other
than the provisions of Subdivision E (sections 12EA to 12ED); or
(ii) Part 3 as so
applying; or
(b) a declaration in relation to the
validity of any act or thing done, proposed to be done or purporting to have
been done, under this Division or Part 3 as so applying; or
(c) an order by way of, or in the
nature of, prohibition, certiorari or mandamus;
or both such a declaration and such an order, and the
Court has jurisdiction to hear and determine the proceeding.
(2) The Minister may institute a proceeding
in the Court under this section and may intervene in any proceeding instituted
in the Court under this section or in a proceeding instituted in any other
court in which a party is seeking the making of a declaration or an order of a
kind mentioned in subsection (1).
(3) In this section, proceeding
includes a cross‑proceeding.
Part 3—Investigations and information‑gathering
Division 1—Investigations
13
General powers of investigation
(1) ASIC may make such investigation as it
thinks expedient for the due administration of the corporations legislation
(other than the excluded provisions) where it has reason to suspect that there
may have been committed:
(a) a contravention of the
corporations legislation (other than the excluded provisions); or
(b) a contravention of a law of the
Commonwealth, or of a State or Territory in this jurisdiction, being a
contravention that:
(i) concerns the
management or affairs of a body corporate or managed investment scheme; or
(ii) involves fraud or
dishonesty and relates to a body corporate or managed investment scheme or to
financial products.
(2) Where ASIC has reason to suspect that
unacceptable circumstances within the meaning of Subdivision B of Division 2
of Part 6.10 of the Corporations Act have, or may have, occurred, ASIC may
make such investigation as it thinks expedient:
(a) for the purposes of determining
whether or not to make an application under section 657C of that Act; or
(b) otherwise for the due
administration of the corporations legislation (other than the excluded
provisions).
(3) If ASIC has reason to suspect that a
liquidator registered under Division 2 of Part 9.2 of the
Corporations Act:
(a) has not, or may not have,
faithfully performed his or her duties; or
(b) is not, or may not be, faithfully
performing his or her duties;
ASIC may make such investigation as it thinks expedient
for the due administration of the corporations legislation (other than the
excluded provisions).
(6) If ASIC has reason to suspect that a
contravention of a provision of Division 2 of Part 2 may have
been committed, ASIC may make such investigation as it thinks appropriate.
14 Minister
may direct investigations
(1) Where, in the Minister’s opinion, it is
in the public interest in respect of this jurisdiction for a particular matter
to which subsection (2) applies to be investigated, he or she may by
writing direct ASIC to investigate that matter.
(2) This subsection applies to a matter
relating to any of the following:
(a) an alleged or suspected
contravention of the corporations legislation (other than the excluded
provisions);
(b) an alleged or suspected
contravention of a law of the Commonwealth, or of a State or Territory in this
jurisdiction, being a contravention that:
(i) concerns the
management or affairs of a body corporate; or
(ii) involves fraud or
dishonesty and relates to a body corporate or financial products;
(c) the affairs, or particular
affairs, of a corporation;
(d) dealing in financial products;
(f) the establishment or conducting
of a financial market;
(g) the provision of a clearing and
settlement facility;
(j) the giving of advice, analyses or
reports about financial products;
(k) the provision of compensation
arrangements for a financial market.
(3) ASIC must comply with a direction under subsection (1).
(4) A direction under subsection (1)
does not prevent ASIC from delegating a function or power.
15
Investigation after report of receiver or liquidator
If a report has been lodged under
section 422 or 533 of the Corporations Act, ASIC may investigate a matter
to which the report relates for the purpose of determining whether or not a
person ought to be prosecuted for an offence against the corporations
legislation (other than the excluded provisions).
16
Interim report on investigation
(1) Where, in the course of an investigation
under this Division, ASIC forms the opinion that:
(a) a serious contravention of a law
of the Commonwealth, or of a State or Territory in this jurisdiction, has been
committed; or
(b) to prepare an interim report about
the investigation would enable or assist the protection, preservation or prompt
recovery of property; or
(c) there is an urgent need for the
corporations legislation (other than the excluded provisions) to be amended;
it must prepare an interim report that relates to the
investigation and sets out:
(d) if paragraph (a) applies—its
findings about the contravention, and the evidence and other material on which
those findings are based; or
(e) if paragraph (b) applies—such
matters as, in its opinion, will so enable or assist; or
(f) if paragraph (c) applies—its
opinion about amendment of that legislation, and its reasons for that opinion;
and such other matters relating to, or arising out of, the
investigation as it thinks fit.
(2) ASIC may prepare an interim report about
an investigation under this Division and must do so if the Minister so directs.
(3) A report under subsection (2) must
set out such matters relating to, or arising out of, the investigation as ASIC
thinks fit or the Minister directs.
17
Final report on investigation
(1) At the end of an investigation under
section 13 or 15, ASIC may prepare a report about the investigation and
must do so if the Minister so directs.
(2) At the end of an investigation under
section 14, ASIC must prepare a report about the investigation.
(3) A report under this section must set out:
(a) ASIC’s findings about the matters
investigated; and
(b) the evidence and other material on
which those findings are based; and
(c) such other matters relating to, or
arising out of, the investigation as ASIC thinks fit or the Minister directs.
18
Distribution of report
(1) As soon as practicable after preparing a
report under this Division, ASIC must give a copy of the report to the
Minister.
(2) Where a report, or part of a report,
under this Division relates to a serious contravention of a law of the
Commonwealth, or of a State or Territory in this jurisdiction, ASIC may give a
copy of the whole or a part of the report to:
(a) the Australian Federal Police; or
(b) the Chief Executive Officer of the
Australian Crime Commission or a member of the staff of the ACC (within the
meaning of the Australian Crime Commission Act 2002); or
(c) the Director of Public
Prosecutions; or
(d) a prescribed agency.
(3) Where a report, or part of a report,
under this Division relates to a person’s affairs to a material extent, ASIC
may, at the person’s request or of its own motion, give to the person a copy of
the report or of part of the report.
(4) The Minister may cause the whole or a
part of a report under this Division to be printed and published.
Division 2—Examination of persons
19
Notice requiring appearance for examination
(1) This section applies where ASIC, on
reasonable grounds, suspects or believes that a person can give information
relevant to a matter that it is investigating, or is to investigate, under
Division 1.
(2) ASIC may, by written notice in the
prescribed form given to the person, require the person:
(a) to give to ASIC all reasonable
assistance in connection with the investigation; and
(b) to appear before a specified
member or staff member for examination on oath and to answer questions.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3) A notice given under subsection (2)
must:
(a) state the general nature of the
matter referred to in subsection (1); and
(b) set out the effect of subsection
23(1) and section 68.
20
Proceedings at examination
The remaining provisions of this
Division apply where, pursuant to a requirement made under section 19 for
the purposes of an investigation under Division 1, a person (in this
Division called the examinee) appears before another person (in
this Division called the inspector) for examination.
21
Requirements made of examinee
(1) The inspector may examine the examinee on
oath or affirmation and may, for that purpose:
(a) require the examinee to either
take an oath or make an affirmation; and
(b) administer an oath or affirmation
to the examinee.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(1A) An offence under subsection 63(3) relating
to subsection (1) of this section is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) The oath or affirmation to be taken or
made by the examinee for the purposes of the examination is an oath or
affirmation that the statements that the examinee will make will be true.
(3) The inspector may require the examinee to
answer a question that is put to the examinee at the examination and is
relevant to a matter that ASIC is investigating, or is to investigate, under
Division 1.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
22
Examination to take place in private
(1) The examination must take place in
private and the inspector may give directions about who may be present during
it, or during a part of it.
(2) A person must not be present at the
examination unless he or she:
(a) is the inspector, the examinee or
a member; or
(b) is a staff member approved by ASIC;
or
(c) is entitled to be present by
virtue of:
(i) a direction under subsection (1);
or
(ii) subsection 23(1).
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
(3) Subsection (2) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
23
Examinee’s lawyer may attend
(1) The examinee’s lawyer may be present at
the examination and may, at such times during it as the inspector determines:
(a) address the inspector; and
(b) examine the examinee;
about matters about which the inspector has examined the
examinee.
(2) If, in the inspector’s opinion, a person
is trying to obstruct the examination by exercising rights under subsection (1),
the inspector may require the person to stop addressing the inspector, or
examining the examinee, as the case requires.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3) An offence under subsection 63(4)
relating to subsection (2) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
24
Record of examination
(1) The inspector may, and must if the
examinee so requests, cause a record to be made of statements made at the
examination.
(2) If a record made under subsection (1)
is in writing or is reduced to writing:
(a) the inspector may require the
examinee to read it, or to have it read to him or her, and may require him or
her to sign it; and
(b) the inspector must, if requested
in writing by the examinee to give to the examinee a copy of the written
record, comply with the request without charge but subject to such conditions
(if any) as the inspector imposes.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3) An offence under subsection 63(3)
relating to paragraph (2)(a) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
25
Giving to other persons copies of record
(1) ASIC may give a copy of a written record
of the examination, or such a copy together with a copy of any related book, to
a person’s lawyer if the lawyer satisfies ASIC that the person is carrying on,
or is contemplating in good faith, a proceeding in respect of a matter to which
the examination related.
(2) If ASIC gives a copy to a person under subsection (1),
the person, or any other person who has possession, custody or control of the
copy or a copy of it, must not, except in connection with preparing, beginning
or carrying on, or in the course of, a proceeding:
(a) use the copy or a copy of it; or
(b) publish, or communicate to a
person, the copy, a copy of it, or any part of the copy’s contents.
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
(2A) Subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) ASIC may, subject to such conditions (if
any) as it imposes, give to a person a copy of a written record of the examination,
or such a copy together with a copy of any related book.
26
Copies given subject to conditions
(1) If a copy
is given to a person under subsection 24(2) or 25(3) subject to conditions, the
person, and any other person who has possession, custody or control of the copy
or a copy of it, must comply with the conditions.
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
27
Record to accompany report
(1) If a report about the investigation
referred to in section 20 is prepared under section 17, each record
(if any) of the examination must accompany the report.
(2) If:
(a) in ASIC’s opinion, a statement
made at an examination is relevant to any other investigation under Division 1;
and
(b) a record of the statement was made
under section 24; and
(c) a report about the other
investigation is prepared under section 17;
a copy of the record must accompany the report.
Division 3—Inspection of books and audit information‑gathering powers
28
When certain powers may be exercised
A power conferred by this Division
(other than sections 29, 30A, 35, 36 and 39A) may only be exercised:
(a) for the purposes of the
performance or exercise of any of ASIC’s functions and powers under the
corporations legislation; or
(b) for the purposes of ensuring
compliance with the corporations legislation; or
(c) in relation to:
(i) an alleged or
suspected contravention of the corporations legislation; or
(ii) an alleged or
suspected contravention of a law of the Commonwealth, or of a State or
Territory in this jurisdiction, being a contravention that concerns the
management or affairs of a body corporate, or involves fraud or dishonesty and
relates to a body corporate or financial products; or
(d) for the purposes of an
investigation under Division 1.
29
ASIC may inspect books without charge
(1) A book that the corporations legislation
(other than the excluded provisions) requires a person to keep must be open for
inspection (without charge) by a person authorised in writing by ASIC.
(2) A person authorised under this section
may require a person in whose possession the book is to make the book available
for inspection by the first‑mentioned person.
(2A) An offence under subsection 63(3) relating
to subsection (2) of this section is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) An authorisation under this section may
be of general application or may be limited by reference to the books to be
inspected.
30
Notice to produce books about affairs of body corporate or registered scheme
(1) ASIC may
give to:
(a) a body corporate that is not an
exempt public authority; or
(b) an eligible person in relation to
such a body corporate;
a written notice requiring the production to a specified
member or staff member, at a specified place and time, of specified books
relating to affairs of the body.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(2) ASIC may give to:
(a) the responsible entity of a
registered scheme; or
(b) an eligible person in relation to
the responsible entity;
a written notice requiring the production to a specified member
or staff member, at a specified place and time, of specified books relating to
the operation of the scheme.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
30A
Notice to auditors concerning information and books
(1) Subject to subsection (2), ASIC may
give an Australian auditor a written notice requiring the auditor:
(a) to give specified information; or
(b) to produce specified books;
to a specified member or staff member at a specified place
and time.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(2) The power in subsection (1) may only
be exercised:
(a) for the purposes of the
performance or exercise of any of ASIC’s functions and powers relating to:
(i) audit‑related
matters (Corporations Act audit requirements) under
Chapter 2M or Part 9.2 or 9.2A of the Corporations Act or under other
provisions of that Act that relate to that Chapter or that Part; or
(ii) audit requirements (overseas
audit requirements) referred to in subsection 11(10); or
(b) for the purposes of:
(i) ascertaining
compliance with Corporations Act audit requirements; or
(ii) assisting in
ascertaining compliance with overseas audit requirements; or
(c) in relation to:
(i) an alleged or
suspected contravention of Corporations Act audit requirements; or
(ii) an alleged or
suspected contravention of a law of the Commonwealth, or of a State or
Territory in this jurisdiction, being a contravention that relates to an audit
matter and that either concerns the management or affairs of a body corporate
or involves fraud or dishonesty and relates to a body corporate; or
(d) for the purposes of an
investigation under Division 1 relating to a contravention referred to in
paragraph (c).
(3) Without limiting subsection (1), a
notice under that subsection may specify information or books that relate to
any or all of the following:
(a) the policies relating to audit
that the auditor has adopted or proposes to adopt, or the procedures relating
to audit that the auditor has put in place or proposes to put in place;
(b) audits the auditor has conducted
or proposes to conduct or in which the auditor has participated or proposes to
participate;
(c) any other matter pertaining to audit
that is prescribed by the regulations for the purposes of this paragraph.
Note: A person responding to a notice under
subsection (1) has qualified privilege in respect of the response (see
section 1289 of the Corporations Act).
(4) Without limiting subsection (1), a
notice under that subsection may require the auditor to give information or
produce books even if doing so would involve a breach of an obligation of
confidentiality that the auditor owes an audited body.
(5) ASIC may, by written notice to an
Australian auditor who has received a notice under subsection (1), extend
the period within which the auditor must give the information or produce the
books to which the notice under that subsection relates.
31
Notice to produce books about financial products
(1) ASIC may give to:
(a) the operator of a financial market
or clearing and settlement facility; or
(b) a member of the board of the
operator of a financial market or clearing and settlement facility; or
(c) a person who either carries on or
has carried on (either alone or together with any other person or persons) a
financial services business, or who is a representative of such a person; or
(d) a nominee controlled by a person
of a kind referred to in paragraph (c) or jointly controlled by 2 or more
persons at least one of whom is such a person; or
(e) an eligible person in relation to
a person of a kind referred to in paragraph (a), (b), (c) or (d); or
(f) any other person who, in ASIC’s
opinion, has been a party to a dealing in financial products;
a written notice requiring the production to a specified
member or staff member, at a specified place and time, of specified books
relating to:
(g) the business or affairs of a
financial market or clearing and settlement facility; or
(h) a dealing in financial products;
or
(j) advice given, or an analysis or
report issued or published, about financial products; or
(k) the character or financial
position of, or a business carried on by, a person of a kind referred to in paragraph (c)
or (d); or
(m) an audit of, or a report of an
auditor about, a dealing in financial products or accounts or records of a
person who either carries on or has carried on (either alone or together with
any other person or persons) a financial services business, or who is a
representative of such a person.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(2) A reference in subsection (1) to a
dealing in financial products, or to a business carried on by a person, includes
a reference to a dealing in financial products by a person as a trustee, or to
a business carried on by a person as a trustee, as the case may be.
32A
Notice to produce books about financial services
For the purposes of Division 2 of
Part 2, ASIC may give to:
(a) a person who supplies, or has
supplied, a financial service; or
(b) an eligible person in relation to
that person;
a written notice requiring the production to a specified
member or staff member, at a specified place and time, of specified books
relating to:
(c) the supply of the financial
service; or
(d) the financial service.
Note: Failure to comply with a requirement made
under this section is an offence (see section 63).
33
Notice to produce documents in person’s possession
(1) ASIC may give to a person a written
notice requiring the production to a specified member or staff member, at a
specified place and time, of specified books that are in the first‑mentioned
person’s possession and relate to:
(a) affairs of a body corporate; or
(ab) affairs of a registered scheme; or
(b) a matter referred to in any of
paragraphs 31(1)(g) to (m), inclusive; or
(c) a matter referred to in paragraph
32A(c) or (d).
Note: Failure to comply with a requirement made
under this section is an offence (see section 63).
(2) ASIC may give to a person a written
notice requiring the production to a specified member or staff member, at a
specified place and time, of specified books that are in the person’s
possession and that relate to the question whether an auditor has complied with
Corporations Act audit requirements, or overseas audit requirements, within the
meaning of subsection 30A(2).
34 ASIC
may authorise persons to require production of books, giving of information
etc.
(1) ASIC may by writing authorise a member or
staff member to make a requirement of a kind that this Division empowers ASIC
to make.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(2) An authorisation under this section may
be of general application or may be limited by reference to all or any of the
following:
(a) the persons of whom requirements
may be made;
(b) the books that may be required to
be produced;
(c) the information that may be
required to be given.
(3) Where an authorisation of a person is in
force under this section, the person may make a requirement in accordance with
the authorisation as if, in sections 30, 30A, 31, 32A and 33:
(a) a reference to ASIC were a
reference to the person; and
(b) a reference to specified books
were a reference to books that the person specifies, whether in the requirement
or not and whether orally or in writing, to the person of whom the requirement
is made; and
(c) a reference to specified
information were a reference to information that the person specifies, whether
in the requirement or not and whether orally or in writing, to the person of
whom the requirement is made; and
(d) a reference to giving or producing
to a specified person were a reference to giving or producing to the first‑mentioned
person.
35
Application for warrant to seize books
(1) Where a member or staff member has
reasonable grounds to suspect that there are, or may be within the next 3 days,
on particular premises in Australia, books whose production could be required
under this Division, he or she may:
(a) lay before a magistrate an
information on oath or affirmation setting out those grounds; and
(b) apply for the issue of a warrant
to search the premises for those books.
(2) On an application under this section, the
magistrate may require further information to be given, either orally or by
affidavit, in connection with the application.
36
Grant of warrant
(1) This section applies where, on an
application under section 35, the magistrate is satisfied that there are
reasonable grounds to suspect that there are, or may be within the next 3 days,
on particular premises, particular books whose production could be required
under this Division.
(2) The magistrate may issue a warrant
authorising a member of the Australian Federal Police, whether or not named in
the warrant, together with any person so named, with such assistance, and by
such force, as is necessary and reasonable:
(a) to enter on or into the premises;
and
(b) to search the premises; and
(c) to break open and search anything,
whether a fixture or not, in or on the premises; and
(d) to take possession of, or secure
against interference, books that appear to be any or all of those books.
(3) If the magistrate issues such a warrant,
he or she must set out on the information laid before him or her under
subsection 35(2) for the purposes of the application:
(a) which of the grounds set out in
the information; and
(b) particulars of any other grounds;
he or she has relied on to justify the issue of the
warrant.
(4) A warrant under this section must:
(a) specify the premises and books
referred to in subsection (1); and
(b) state whether entry is authorised
to be made at any time of the day or night or only during specified hours; and
(c) state that the warrant ceases to
have effect on a specified day that is not more than 7 days after the day of
issue of the warrant.
36A
Execution of warrant
(1) Before any person enters premises under a
search warrant issued under section 36, a member of the Australian Federal
Police must:
(a) announce that the member is
authorised to enter the premises; and
(b) give any person at the premises an
opportunity to allow entry to the premises.
(2) However, the member of the Australian
Federal Police is not required to comply with subsection (1) if he or she
believes on reasonable grounds that immediate entry to the premises is required
to ensure that the effective execution of the warrant is not frustrated.
(3) If the occupier of the premises is
present at the premises:
(a) the member of the Australian
Federal Police must make available to the occupier a copy of the warrant; and
(b) the occupier is entitled to
observe the search being conducted.
(4) The occupier’s right to observe the
search being conducted ends if the occupier impedes the search.
(5) This section does not prevent 2 or more
areas of the premises being searched at the same time.
(6) If books are seized under the warrant,
the member of the Australian Federal Police or a person assisting the member
must provide a receipt for the books.
(7) If 2 or more books are seized,
they may be covered in the one receipt.
37
Powers where books produced or seized
(1) This
section applies where:
(a) books are produced to a person
under a requirement made under this Division; or
(b) under a warrant issued under
section 36, a person:
(i) takes possession of
books; or
(ii) secures books against
interference; or
(c) by virtue of a previous
application of subsection (8) of this section, books are delivered into a
person’s possession.
(2) If paragraph (1)(a) applies, the
person may take possession of any of the books.
(3) The person may inspect, and may make
copies of, or take extracts from, any of the books.
(4) The person may use, or permit the use of,
any of the books for the purposes of a proceeding.
(5) The person may retain possession of any
of the books for so long as is necessary:
(a) for the purposes of exercising a
power conferred by this section (other than this subsection and subsection (7));
or
(b) for any of the purposes referred
to in paragraphs 28(a), (b) and (d) or 30A(2)(a), (b) and (d), as the case
requires; or
(c) except in the case of books
required to be produced for a purpose specified in subparagraph 30A(2)(a)(ii)
or 30A(2)(b)(ii)—for a decision to be made about whether or not a proceeding to
which the books concerned would be relevant should be begun; or
(d) for such a proceeding to be begun
and carried on.
(6) No‑one is entitled, as against the
person, to claim a lien on any of the books, but such a lien is not otherwise
prejudiced.
(7) While the books are in the person’s
possession, the person:
(a) must permit another person to
inspect at all reasonable times such (if any) of the books as the other person
would be entitled to inspect if they were not in the first‑mentioned person’s
possession; and
(b) may permit another person to
inspect any of the books.
(8) Unless subparagraph (1)(b)(ii)
applies, the person may deliver any of the books into the possession of ASIC or
of a person authorised by it to receive them.
(9) If paragraph (1)(a) or (b) applies,
the person, or a person into whose possession the person delivers any of the
books under subsection (8), may require:
(a) if paragraph (1)(a) applies—a
person who so produced any of the books; or
(b) in any case—a person who was a
party to the compilation of any of the books;
to explain any matter about the compilation of any of the
books or to which any of the books relate.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(10) In this
section:
proceeding
includes:
(a) in relation to a contravention of
Division 2 of Part 2—a proceeding under a law of the Commonwealth, a
State or a Territory; and
(b) otherwise—a proceeding under a law
of the Commonwealth, or of a State or Territory in this jurisdiction.
38
Powers where books not produced
Where a person fails to produce
particular books in compliance with a requirement made by another person under
this Division, the other person may require the first‑mentioned person to
state:
(a) where the books may be found; and
(b) who last had possession, custody
or control of the books and where that person may be found.
Note: Failure to comply with a requirement made
under this section is an offence (see section 63).
39
Power to require person to identify property of body corporate
A person who has power under this
Division to require another person to produce books relating to affairs of a
body corporate may, whether or not that power is exercised, require the other
person:
(a) to identify property of the body;
and
(b) to explain how the body has kept
account of that property.
Note: Failure to comply with a requirement made
under this section is an offence (see section 63).
39A
ASIC may give copy of book relating to registered scheme to another person
(1) ASIC may, subject to such conditions (if
any) as it imposes, give to a person a copy of any book in its possession that
relates to a registered scheme.
(2) If a copy of a book is given to a person
under subsection (1) subject to conditions, the person, and any other
person who has possession, custody or control of the copy or a copy of it, must
comply with the conditions.
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
39B
ASIC to notify foreign regulator’s access to information or books
(1) This section applies if:
(a) an Australian auditor gives
information or produces books because of a requirement made under subsection
30A(1) for purposes referred to in subparagraph 30A(2)(a)(ii) or 30A(2)(b)(ii);
or
(b) books specified in such a
requirement are obtained from an Australian auditor under a warrant issued
under section 36; or
(c) a person gives information or
produces books that relate to the question whether an auditor has complied with
overseas audit requirements within the meaning of subsection 30A(2) because of
a requirement made under subsection 33(2); or
(d) such books are obtained from a
person under a warrant issued under section 36.
(2) If ASIC gives the information or books,
or copies of the books, to a regulatory body with which it has entered into an
agreement or arrangement under subsection 11(10), ASIC must, within 14 days of
doing so, notify the Australian auditor or person in writing of the details of
the information or books, or copies, given.
Division 4—Requirements to disclose information
40
When certain powers may be exercised
A power conferred by section 41 or
42 may only be exercised:
(a) for the purposes of the performance
or exercise of any of ASIC’s functions and powers under the corporations
legislation (other than the excluded provisions); or
(b) for the purposes of ensuring
compliance with the corporations legislation (other than the excluded
provisions); or
(c) in relation to:
(i) an alleged or
suspected contravention of the corporations legislation (other than the
excluded provisions); or
(ii) an alleged or
suspected contravention of a law of the Commonwealth, or of a State or
Territory in this jurisdiction, being a contravention that concerns the
management or affairs of a body corporate, or involves fraud or dishonesty and
relates to a body corporate or financial products; or
(iii) an alleged or
suspected contravention, by a trustee company, of a law of the Commonwealth, or
of a State or Territory, being a contravention that involves fraud or
dishonesty and that relates to trust property; or
(d) for the purposes of an
investigation under Division 1.
41
Acquisitions and disposals of financial products
(1) ASIC may require a person who carries on
a financial services business to disclose to it, in relation to an acquisition
or disposal of financial products:
(aa) whether the acquisition or
disposal was effected on another person’s behalf and, if so:
(i) the name of the other
person; and
(ii) the nature of the
instructions given to the person who carries on a financial services business
in relation to the dealing; or
(a) the name of the person from or
through whom the financial products were acquired; or
(b) the name of the person to or
through whom the financial products were disposed;
as the case may be, and the nature of the instructions
given to the person who carries on a financial services business in relation to
the acquisition or disposal.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(2) ASIC may require a person to disclose to
it, in relation to an acquisition or disposal of financial products by the
person, whether or not the person acquired or disposed of the financial
products as trustee for, or for or on behalf of, another person, and, if so:
(a) the name of the other person; and
(b) the nature of any instructions
given to the first‑mentioned person in relation to the acquisition or disposal.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3) ASIC may require a person who operates a
financial market to disclose to ASIC, in relation to an acquisition or disposal
of financial products on that financial market, the names of the persons who
acted in the acquisition or disposal.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(4) ASIC may require an operator of a
clearing and settlement facility to disclose to ASIC, in relation to a dealing
in financial products, the names of any participants in the clearing and
settlement facility who were concerned in any act or omission in relation to
the dealing.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(5) Information required to be disclosed
under this section need only be disclosed to the extent to which it is known to
the person required to make the disclosure.
Note: In criminal proceedings, a defendant bears an
evidential burden in relation to the matters in subsection (5).
(6) An offence
under subsection 63(2) relating to subsection (1), (2), (3) or (4) of this
section is an offence of strict liability.
Note: For strict liability, see section 6.1
of the Criminal Code.
42
Acquisitions and disposals of trust property by trustee companies
(1) ASIC may require a trustee company to
disclose to it, in relation to an acquisition or disposal of trust property by
the trustee company, all or any of the following:
(a) the name of:
(i) the person from or
through whom the trust property was acquired; or
(ii) the person to or
through whom the trust property was disposed;
(b) whether the acquisition or
disposal was effected on the instructions of another person, and the nature of
any such instructions;
(c) the names of the beneficiaries of
the trust.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(2) Information required to be disclosed under
this section need only be disclosed to the extent to which it is known to the
person required to make the disclosure.
Note: In criminal proceedings, a defendant bears an
evidential burden in relation to the matters in subsection (2).
(3) An offence under subsection 63(2)
relating to subsection (1) of this section is an offence of strict
liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
43
Exercise of certain powers of ASIC in relation to financial products
(1) This section applies where ASIC considers
that:
(a) it may be necessary to exercise,
in relation to a financial product issued by a body corporate, a power under
section 794D of the Corporations Act; or
(b) a contravention of section 991F,
or Division 2 of Part 7.10, of the Corporations Act may have been
committed in relation to financial products issued by a body corporate; or
(c) a contravention of Chapter 6C
of the Corporations Act may have been committed in relation to shares in a body
corporate; or
(d) a contravention of a law of the
Commonwealth, or of a State or Territory in this jurisdiction, may have been
committed, being a contravention that involves fraud or dishonesty and relates
to financial products issued by a body corporate; or
(e) unacceptable circumstances within
the meaning of Part 6.9 of the Corporations Act have, or may have,
occurred:
(i) in relation to an
acquisition of shares in a body corporate; or
(ii) as a result of conduct
engaged in by a person in relation to shares in, or the affairs of, a body
corporate; or
(f) a person has, or may have,
contravened section 657F of the Corporations Act.
(2) ASIC may require a director, secretary or
senior manager of the body to disclose to ASIC information of which he or she
is aware and that:
(a) may have affected a dealing that
has taken place; or
(b) may affect a dealing that may take
place;
in financial products issued by the body.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3) If ASIC believes on reasonable grounds
that a person can give, information about particular matters, being any or all
of the following:
(a) a dealing in financial products
issued by the body;
(b) advice, or an analysis or report,
that a person who carries on or has carried on (either alone or together with
any other person or persons) a financial services business, or a representative
of such a person, has given, issued or published about such financial products;
(c) the financial position of a
business carried on by a person who:
(i) is or has been (either
alone or together with any other person or persons) a person who carries on or
has carried on a financial services business, or a representative of such a
person; and
(ii) has dealt in, has
given advice about, or has issued or published an analysis or report about,
such financial products;
(d) the financial position of a
business carried on by a nominee controlled by a person of a kind referred to
in paragraph (c) or jointly controlled by 2 or more persons at least one
of whom is such a person;
(e) an audit of, or a report of an
auditor about, accounts or records of a person who carries on or has carried on
(either alone or together with any other person or persons) a financial
services business, or a representative of such a person, being accounts or
records relating to dealings in such financial products;
ASIC may require the person to disclose to it the
information that the person has about those particular matters.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3A) An offence under subsection 63(2) relating
to subsection (2) or (3) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) ASIC must not exercise a power conferred
by subsection (2) or (3) except:
(a) if paragraph (1)(a)
applies—for the purpose of determining whether or not to exercise a power as
mentioned in that paragraph; or
(b) if paragraph (1)(b), (c) or
(d) applies—for the purpose of investigating the possible contravention; or
(c) if paragraph (1)(e) or (f)
applies—for the purpose of determining whether or not to make an application
under section 657C or 657G of the Corporations Act.
44
Exercise of certain powers of ASIC in relation to trust property acquired or
disposed of by trustee company
(1) This section applies if ASIC considers
that a contravention of a law of the Commonwealth, or of a State or Territory,
may have been committed by a trustee company, being a contravention that
involves fraud or dishonesty and that relates to trust property.
(2) ASIC may require a director, secretary or
senior manager of the trustee company to disclose to ASIC information of which
he or she is aware and that may have affected an acquisition or disposal of
trust property by the trustee company.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3) If ASIC believes on reasonable grounds
that a person can give information about particular matters, being any or all
of the following:
(a) an acquisition or disposal of
trust property by the trustee company;
(b) the financial position of the
trustee company;
(c) an audit of, or a report of an
auditor about, accounts or records of the trustee company;
ASIC may require the person to disclose to it the
information that the person has about those particular matters.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(4) An offence under subsection 63(2)
relating to subsection (2) or (3) of this section is an offence of strict
liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(5) ASIC must not exercise a power conferred
by subsection (2) or (3) except for the purpose of investigating the
possible contravention referred to in subsection (1).
47
Disclosures to take place in private
(1) A disclosure to ASIC pursuant to a
requirement made under this Division must take place in private and ASIC may
give directions about who may be present during it, or during a part of it.
(2) A person must not be present during a
disclosure unless he or she:
(a) is a member; or
(b) is a staff member approved by
ASIC; or
(c) is entitled to be present by
virtue of:
(i) a direction under subsection (1);
or
(ii) subsection 48(1).
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
(3) Subsection (2) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
48
Lawyer of person making disclosure may attend
(1) The lawyer of a person making a
disclosure to ASIC pursuant to a requirement made under this Division may be
present during the disclosure and may, at such times during it as the
representative of ASIC presiding at the meeting during which the disclosure is
made determines, address the representatives of ASIC about the disclosure.
(2) If, in the presiding representative’s
opinion, a person is trying to obstruct the disclosure by exercising rights
under subsection (1), the presiding representative may require the person
to stop addressing the representatives of ASIC.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3) An offence under subsection 63(4)
relating to subsection (2) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Division 5—Proceedings after an investigation
49
ASIC may cause prosecution to be begun
(1) This section applies where:
(a) as a result of an investigation;
or
(b) from a record of an examination;
conducted under this Part, it appears to ASIC that a
person:
(c) may have committed an offence
against the corporations legislation; and
(d) ought to be prosecuted for the
offence.
(2) ASIC may cause a prosecution of the
person for the offence to be begun and carried on.
(3) If:
(a) ASIC, on reasonable grounds,
suspects or believes that a person can give information relevant to a
prosecution for the offence; or
(b) the offence relates to matters
being, or connected with, affairs of a body corporate, or to matters including
such matters;
ASIC may, whether before or after a prosecution for the
offence is begun, by writing given to the person, or to an eligible person in
relation to the body, as the case may be, require the person or eligible person
to give all reasonable assistance in connection with such a prosecution.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3A) An offence under subsection 63(3) relating
to subsection (3) of this section is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) Subsection (3) does not apply in
relation to:
(a) the person referred to in subsection (1);
or
(b) a person who is or has been that
person’s lawyer.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal
Code.
(5) Nothing in this section affects the
operation of the Director of Public Prosecutions Act 1983.
50
ASIC may cause civil proceeding to be begun
Where, as a result of an investigation
or from a record of an examination (being an investigation or examination
conducted under this Part), it appears to ASIC to be in the public interest for
a person to begin and carry on a proceeding for:
(a) the recovery of damages for fraud,
negligence, default, breach of duty, or other misconduct, committed in
connection with a matter to which the investigation or examination related; or
(b) recovery of property of the
person;
ASIC:
(c) if the person is a company—may
cause; or
(d) otherwise—may, with the person’s
written consent, cause;
such a proceeding to be begun and carried on in the
person’s name.
Division 6—Hearings
51
Power to hold hearings
ASIC may hold hearings for the purposes
of the performance or exercise of any of its functions and powers under the
corporations legislation (other than the excluded provisions), other than a
function or power conferred on it by Division 1 of this Part or by section 657C
or 657G of the Corporations Act.
52
General discretion to hold hearing in public or private
(1) Subject to sections 53 and 54, ASIC
may direct that a hearing take place in public or take place in private.
(2) In exercising its discretion under subsection (1),
ASIC must have regard to:
(a) whether evidence that may be
given, or a matter that may arise, during the hearing is of a confidential
nature or relates to the commission, or to the alleged or suspected commission,
of an offence; and
(b) any unfair prejudice to a person’s
reputation that would be likely to be caused if the hearing took place in
public; and
(c) whether it is in the public
interest that the hearing take place in public; and
(d) any other relevant matter.
53
Request by person appearing at hearing that it take place in public
(1) Subject to section 54, where:
(a) the corporations legislation
(other than the excluded provisions) requires ASIC to give a person an
opportunity to appear at a hearing; and
(b) the person requests that the
hearing or part of the hearing take place in public;
the hearing or part must take place in public.
(2) Despite subsection (1), where ASIC
is satisfied, having regard to the matters referred to in subsection 52(2),
that it is desirable that a hearing or part of a hearing take place in private,
it may direct that the hearing or part take place in private.
54
Certain hearings to take place in private
Where the corporations legislation
(other than the excluded provisions and this section) requires a hearing to
take place in private, the hearing must take place in private.
55
ASIC may restrict publication of certain material
(1) Where, at a hearing that is taking place
in public or in private, ASIC is satisfied that it is desirable to do so, ASIC
may give directions preventing or restricting the publication of evidence given
before, or of matters contained in documents lodged with, ASIC.
(2) In determining whether or not to give a
direction under subsection (1), ASIC must have regard to:
(a) whether evidence that has been or
may be given, or a matter that has arisen or may arise, during the hearing is
of a confidential nature or relates to the commission, or to the alleged or
suspected commission, of an offence against an Australian law; and
(b) any unfair prejudice to a person’s
reputation that would be likely to be caused unless ASIC exercises its powers
under this section; and
(c) whether it is in the public
interest that ASIC exercises its powers under this section; and
(d) any other relevant matter.
56 Who
may be present when hearing takes place in private
(1) ASIC may give directions about who may be
present during a hearing that is to take place in private.
(2) A direction under subsection (1)
does not prevent:
(a) a person whom the corporations
legislation (other than the excluded provisions) requires to be given the
opportunity to appear at a hearing; or
(b) a
person representing under section 59:
(i) a person of a kind
referred to in paragraph (a) of this subsection; or
(ii) a person who, by
virtue of such a direction, is entitled to be present at a hearing;
from being present during the hearing.
(3) Where ASIC directs that a hearing take
place in private, a person must not be present at the hearing unless he or she:
(a) is a member; or
(b) is a staff member approved by
ASIC; or
(c) is entitled to be present by
virtue of:
(i) a direction under subsection (1);
or
(ii) subsection (2).
Penalty: 10 penalty units or imprisonment for 3 months.
(4) Subsection (3) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
57
Involvement of person entitled to appear at hearing
(1) This section applies where the
corporations legislation (other than the excluded provisions) requires ASIC to
give a person an opportunity to appear at a hearing and to make submissions and
give evidence to it.
(2) ASIC must appoint a place and time for
the hearing and cause written notice of that place and time to be given to the
person.
(3) If the person does not wish to appear at
the hearing, the person may, before the day of the hearing, lodge with ASIC any
written submissions that the person wishes ASIC to take into account in
relation to the matter concerned.
58 Power
to summon witnesses and take evidence
(1) A member may, by written summons in the
prescribed form given to a person:
(a) require the person to appear
before ASIC at a hearing to give evidence, to produce specified documents, or
to do both; and
(b) require the person to attend from
day to day unless excused, or released from further attendance, by a member.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(2) At a hearing, ASIC may take evidence on
oath or affirmation, and for that purpose a member may:
(a) require a witness at the hearing
to either take an oath or make an affirmation; and
(b) administer an oath or affirmation
to a witness at the hearing.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(3) The oath or affirmation to be taken or
made by a person for the purposes of this section is an oath or affirmation
that the evidence the person will give will be true.
(4) The member presiding at a hearing:
(a) may require a witness at the
hearing to answer a question put to the witness; and
(b) may require a person appearing at
the hearing pursuant to a summons issued under this section to produce a
document specified in the summons.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 63).
(4A) An offence under subsection 63(3) relating
to subsection (1), (2) or (4) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(5) ASIC may permit a witness at a hearing to
give evidence by tendering, and if ASIC so requires, verifying by oath, a
written statement.
59
Proceedings at hearings
(1) A hearing must be conducted with as
little formality and technicality, and with as much expedition, as the
requirements of the corporations legislation (other than the excluded
provisions) and a proper consideration of the matters before ASIC permit.
(2) At a
hearing, ASIC:
(a) is
not bound by the rules of evidence; and
(b) may, on such conditions as it
thinks fit, permit a person to intervene; and
(c) must observe the rules of natural
justice.
(3) Subject to subsection (4), Division 4
of Part 4 (other than section 104) applies, so far as practicable, in
relation to a hearing as if the hearing were a meeting of ASIC.
(4) At a hearing before a Division of ASIC, 2
members of the Division form a quorum.
(5) At a hearing, a natural person may appear
in person or be represented by an employee of the person approved by ASIC.
(6) A body corporate may be represented at a
hearing by an officer or employee of the body corporate approved by ASIC.
(7) An unincorporated association, or a
person in the person’s capacity as a member of an unincorporated association,
may be represented at a hearing by a member, officer or employee of the
association approved by ASIC.
(8) Any person may be represented at a
hearing by a barrister or solicitor of the Supreme Court of a State or
Territory or of the High Court.
60
ASIC to take account of evidence and submissions
ASIC must take into account:
(a) evidence given, or a submission
made, to it at a hearing; or
(b) a submission lodged with it under
section 57;
in making a decision on a matter to which the evidence or
submission relates.
61
Reference to Court of question of law arising at hearing
(1) ASIC may, of its own motion or at a
person’s request, refer to the Court for decision a question of law arising at
a hearing.
(3) Where a
question has been referred under subsection (1), ASIC must not, in
relation to a matter to which the hearing relates:
(a) give while the reference is
pending a decision to which the question is relevant; or
(b) proceed in a manner, or make a
decision, that is inconsistent with the Court’s opinion on the question.
(4) Where a question is referred under subsection (1):
(a) ASIC must send to the Court all
documents that were before ASIC in connection with the hearing; and
(b) at the end of the proceeding in
the Court in relation to the reference, the Court must cause the documents to
be returned to ASIC.
62
Protection of members etc.
(1) A member has, in the performance or
exercise of any of his or her functions and powers as a member in relation to a
hearing, the same protection and immunity as a Justice of the High Court.
(1A) A delegate of a member has, in the
performance or exercise of any delegated function or power in relation to a
hearing, the same protection and immunity as a Justice of the High Court.
(2) A barrister, solicitor or other person
appearing on a person’s behalf at a hearing has the same protection and
immunity as a barrister has in appearing for a party in a proceeding in the
High Court.
(3) Subject to this Act, a person who is
required by a summons under section 58 to appear at a hearing, or a
witness at a hearing, has the same protection as a witness in a proceeding in
the High Court.
Division 7—Offences
63 Non‑compliance
with requirements made under this Part
(1) A person must not intentionally or recklessly
fail to comply with a requirement made under:
(a) section 19; or
(b) subsection 21(3); or
(c) section 30, 30A, 31, 32A, 33
or 34; or
(d) subsection 37(9); or
(e) section 38; or
(f) section 39.
Penalty: 100 penalty units or imprisonment for 2 years, or
both.
(2) A person must not fail to comply with a
requirement made under section 41, 42, 43 or 44.
Penalty: 50 penalty units or imprisonment for 12 months, or
both.
(3) A person must not fail to comply with a
requirement made under subsection 21(1) or 29(2), paragraph 24(2)(a) or
subsection 49(3) or 58(1), (2) or (4).
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
(4) A person must comply with a requirement
made under subsection 23(2) or 48(2).
Penalty: 5 penalty units.
(5) Subsections (1), (1A), (2) and (3)
do not apply to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3) of the Criminal
Code.
(6) Paragraph (1)(d) does not apply to
the extent that the person has explained the matter to the best of his or her
knowledge or belief.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3) of the Criminal
Code.
(7) Paragraph (1)(e) does not apply to
the extent that the person has stated the matter to the best of his or her
knowledge or belief.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3) of the Criminal
Code.
(8) Paragraph (1)(f) does not apply to
the extent that the person has, to the extent that the person is capable of
doing so, performed the acts referred to in paragraphs 39(a) and (b).
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3) of the Criminal
Code.
64
False information
(1) A person must not:
(a) in purported compliance with a
requirement made under this Part; or
(b) in the course of an examination of
the person;
give information, or make a statement, that is false or
misleading in a material particular.
Penalty: 100 penalty units or imprisonment for 2 years, or
both.
(2) A person must not, at a hearing, give
evidence that is false or misleading in a material particular.
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
(3) It is a defence to a prosecution for a
contravention of subsection (1) or (2) if it is proved that the defendant,
when giving the information or evidence or making the statement, believed on
reasonable grounds that it was true and not misleading.
Note: A defendant bears a legal burden in relation
to the matter in subsection (3), see section 13.4 of the Criminal
Code.
65
Obstructing person acting under this Part
(1) A person must not:
(a) engage in conduct that results in
the obstruction or hindering of a person in the exercise of a power under this
Part; or
(b) engage
in conduct that results in the obstruction or hindering of a person who is
executing a warrant issued under section 36.
Penalty: 100 penalty units or
imprisonment for 2 years, or both.
(1A) Subsection (1) does not apply to the
extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matters in this subsection, see subsection 13.3(3) of the Criminal
Code.
(2) The occupier, or person in charge, of
premises that a person enters under a warrant issued under section 36 must
not intentionally or recklessly fail to provide to that person all reasonable
facilities and assistance for the effective exercise of his or her powers under
the warrant.
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
66
Contempt of ASIC
(1) A person must not:
(a) engage in conduct that results in
the obstruction or hindering of ASIC or a member in the performance or exercise
of any of ASIC’s functions and powers; or
(b) engage in conduct that results in
the disruption of a hearing.
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
(2) A person must not contravene a direction
given under subsection 55(1).
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
(2A) Subsection (2) does not apply to the
extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3) of the Criminal
Code.
(2B) Subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) An offence constituted by a contravention
of subsection (1) or (2) is punishable on summary conviction.
67
Concealing books relevant to investigation
(1) Where ASIC is investigating, or is about
to investigate, a matter, a person must not:
(a) in any case—engage in conduct that
results in the concealment, destruction, mutilation or alteration of a book
relating to that matter; or
(b) if a book relating to that matter
is in a particular State or Territory—engage in conduct that results in the
taking or sending of the book out of that State or Territory or out of Australia.
Penalty: 200 penalty units or imprisonment for 5 years, or
both.
(2) It is a defence to a prosecution for a
contravention of subsection (1) if it is proved that the defendant
intended neither to defeat the purposes of the corporations legislation, nor to
delay or obstruct an investigation, or a proposed investigation, by ASIC.
Note: A defendant bears a legal burden in relation
to a matter mentioned in subsection (2), see section 13.4 of the Criminal
Code.
68
Self‑incrimination
(1) For the purposes of this Part, of
Division 3 of Part 10, and of Division 2 of Part 11, it is
not a reasonable excuse for a person to refuse or fail:
(a) to give information; or
(b) to sign a record; or
(c) to produce a book;
in accordance with a requirement made of the person, that
the information, signing the record or production of the book, as the case may
be, might tend to incriminate the person or make the person liable to a
penalty.
(2) Subsection (3) applies where:
(a) before:
(i) making an oral statement
giving information; or
(ii) signing a record;
pursuant to a requirement made
under this Part, Division 3 of Part 10 or Division 2 of Part 11,
a person (other than a body corporate) claims that the statement, or signing
the record, as the case may be, might tend to incriminate the person or make
the person liable to a penalty; and
(b) the statement, or signing the
record, as the case may be, might in fact tend to incriminate the person or
make the person so liable.
(3) The statement, or the fact that the
person has signed the record, as the case may be, is not admissible in evidence
against the person in:
(a) a criminal proceeding; or
(b) a proceeding for the imposition of
a penalty;
other than a proceeding in respect of:
(c) in the case of the making of a
statement—the falsity of the statement; or
(d) in the case of the signing of a
record—the falsity of any statement contained in the record.
69
Legal professional privilege
(1) This section applies where:
(a) under this Part, Division 3
of Part 10, or Division 2 of Part 11, a person requires a
lawyer:
(i) to give information;
or
(ii) to produce a book; and
(b) giving the information would
involve disclosing, or the book contains, as the case may be, a privileged
communication made by, on behalf of or to the lawyer in his or her capacity as
a lawyer.
(2) The lawyer
is entitled to refuse to comply with the requirement unless:
(a) if the person to whom, or by or on
behalf of whom, the communication was made is a body corporate that is being wound
up—the liquidator of the body; or
(b) otherwise—the person to whom, or
by or on behalf of whom, the communication was made;
consents to the lawyer complying with the requirement.
(3) If the
lawyer so refuses, he or she must, as soon as practicable, give to the person
who made the requirement a written notice setting out:
(a) if the lawyer knows the name and
address of the person to whom, or by or on behalf of whom, the communication
was made—that name and address; and
(b) if subparagraph (1)(a)(i) applies
and the communication was made in writing—sufficient particulars to identify
the document containing the communication; and
(c) if subparagraph (1)(a)(ii)
applies—sufficient particulars to identify the book, or the part of the book,
containing the communication.
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
70
Powers of Court where non‑compliance with Part
(1) This section applies where ASIC is
satisfied that a person has, without reasonable excuse, failed to comply with a
requirement made under this Part (other than Division 8).
(2) ASIC may by writing certify the failure
to the Court.
(3) If ASIC does so, the Court may inquire
into the case and may order the person to comply with the requirement as
specified in the order.
Division 8—ASIC’s powers where non‑compliance with Part
71
Orders by ASIC
This Division applies where, in ASIC’s
opinion, information about:
(a) affairs of a body corporate; or
(b) financial products; or
(c) trust property acquired or
disposed of by a trustee company;
needs to be found out for the purposes of the exercise of
any of ASIC’s powers under this Part but cannot be found out because a person
has failed to comply with a requirement made under this Part.
72
Orders in relation to securities of a body corporate
(1) If paragraph 71(a) applies, ASIC may make
one or more of the following:
(a) an order restraining a specified
person from disposing of any interest in specified securities of the body
corporate referred to in that paragraph;
(b) an order restraining a specified
person from acquiring any interest in specified securities of the body;
(c) an order restraining the exercise
of voting or other rights attached to specified securities of the body;
(d) an order directing the holder of
securities in respect of which an order under this section is in force to give
written notice of that order to any person whom the holder knows to be entitled
to exercise a right to vote attached to the securities;
(e) an order directing the body not to
pay, except in the course of winding up, a sum due from the body in respect of
specified securities of the body;
(f) an order directing the body not
to register the transfer or transmission of specified securities of the body;
(g) an order directing the body not to
issue to a person who holds shares in the body shares that the body proposed to
issue to the person:
(i) because the person
holds shares in the body; or
(ii) pursuant to an offer
or invitation made or issued to the person because the person holds shares in
the body.
(2) An offence under subsection 75(5)
relating to subsection (1) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
73
Orders in relation to financial products and trust property generally
(1) If paragraph 71(b) applies, ASIC may make
one or more of the following:
(a) an order restraining a specified
person from disposing of any interest in specified financial products;
(b) an order restraining a specified
person from acquiring any interest in specified financial products;
(c) an order restraining the exercise
of voting or other rights attached to specified financial products;
(d) an order directing the holder of
financial products in respect of which an order under this section is in force
to give written notice of that order to any person whom the holder knows to be
entitled to exercise a right to vote attached to the financial products;
(e) an order directing a body
corporate not to pay, except in the course of winding up, a sum due from the
body in respect of specified financial products;
(f) an order directing a body
corporate not to register the transfer or transmission of specified financial
products;
(g) an order directing a body
corporate not to issue to a person who holds shares in the body shares that the
body proposed to issue to the person:
(i) because the person
holds such shares; or
(ii) pursuant to an offer
or invitation made or issued to the person because the person holds such
shares;
(h) an order requiring a specified
person to dispose of specified derivatives, or to dispose of specified
derivatives in a specified manner.
(1A) If paragraph
71(c) applies, ASIC may make one or more of the following:
(a) an order restraining a specified
person from disposing of any interest in specified trust property;
(b) an order restraining a specified
person from acquiring any interest in specified trust property;
(c) an order directing a body
corporate not to pay, except in the course of winding up, a sum due from the
body corporate in respect of specified trust property;
(d) an order directing a body
corporate not to register the transfer or transmission of specified trust
property.
(2) An order
under subsection (1) or (1A) does not prejudice or affect a right of an
operator of a financial market or clearing and settlement facility:
(a) to cause or enter into a
transaction that causes a derivative to be closed out; or
(b) to cause to be registered in a
person’s name, or to register in a person’s name, a derivative that was
previously registered in another person’s name.
(3) An offence under subsection 75(5)
relating to subsection (1) or (1A) of this section is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
75
Orders under this Division
(1) ASIC may make an order varying or
revoking an order in force under this Division.
(2) An order under this Division must be made
by notice published in the Gazette.
(3) Where an order is made under this
Division (other than subsection (1)), ASIC must cause to be given to the
person to whom the order is directed:
(a) a copy of the order; and
(b) a copy of each order varying or
revoking it.
(4) Where an order under this Division
relates to financial products, ASIC must cause:
(a) a copy of the order; and
(b) a copy of each order varying or
revoking it;
to be given to:
(c) in any case—the person who issued
or made available, or who will issue or make available, the financial products;
or
(d) if the financial products are
rights or options—the person against whom the right or option is, or would be
enforceable.
(5) A person
must comply with an order in force under this Division.
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
Division 9—Evidentiary use of certain material
76
Statements made at an examination: proceedings against examinee
(1) A statement that a person makes at an
examination of the person is admissible in evidence against the person in a
proceeding unless:
(a) because of subsection 68(3), the
statement is not admissible in evidence against the person in the proceeding;
or
(b) the statement is not relevant to
the proceeding and the person objects to the admission of evidence of the
statement; or
(c) the statement is qualified or explained
by some other statement made at the examination, evidence of the other
statement is not tendered in the proceeding and the person objects to the
admission of evidence of the first‑mentioned statement; or
(d) the statement discloses matter in
respect of which the person could claim legal professional privilege in the
proceeding if this subsection did not apply in relation to the statement, and
the person objects to the admission of evidence of the statement.
(2) Subsection (1) applies in relation to
a proceeding against a person even if it is heard together with a proceeding
against another person.
(3) Where a written record of an examination
of a person is signed by the person under subsection 24(2) or authenticated in
any other prescribed manner, the record is, in a proceeding, prima facie evidence
of the statements it records, but nothing in this Part limits or affects the
admissibility in the proceeding of other evidence of statements made at the
examination.
77
Statements made at an examination: other proceedings
Where direct evidence by a person (the absent
witness) of a matter would be admissible in a proceeding, a statement
that the absent witness made at an examination of the absent witness and that
tends to establish that matter is admissible in the proceeding as evidence of
that matter:
(a) if it appears to the court or
tribunal that:
(i) the absent witness is
dead or is unfit, because of physical or mental incapacity, to attend as a
witness; or
(ii) the absent witness is
outside the State or Territory in which the proceeding is being heard and it is
not reasonably practicable to secure his or her attendance; or
(iii) all reasonable steps
have been taken to find the absent witness but he or she cannot be found; or
(b) if it does not so appear to the
court or tribunal—unless another party to the proceeding requires the party
tendering evidence of the statement to call the absent witness as a witness in
the proceeding and the tendering party does not so call the absent witness.
78
Weight of evidence admitted under section 77
(1) This section applies where evidence of a
statement made by a person at an examination of the person is admitted under
section 77 in a proceeding.
(2) In deciding how much weight (if any) to
give to the statement as evidence of a matter, regard is to be had to:
(a) how long after the matters to
which it related the statement was made; and
(b) any reason the person may have had
for concealing or misrepresenting a material matter; and
(c) any other circumstances from which
it is reasonable to draw an inference about how accurate the statement is.
(3) If the person is not called as a witness
in the proceeding:
(a) evidence that would, if the person
had been so called, have been admissible in the proceeding for the purpose of
destroying or supporting his or her credibility is so admissible; and
(b) evidence is admissible to show
that the statement is inconsistent with another statement that the person has
made at any time.
(4) However, evidence of a matter is not
admissible under this section if, had the person been called as a witness in
the proceeding and denied the matter in cross‑examination, evidence of the
matter would not have been admissible if adduced by the cross‑examining party.
79
Objection to admission of statements made at examination
(1) A party (the adducing party)
to a proceeding may, not less than 14 days before the first day of the hearing
of the proceeding, give to another party to the proceeding written notice that
the adducing party:
(a) will apply to have admitted in
evidence in the proceeding specified statements made at an examination; and
(b) for that purpose, will apply to
have evidence of those statements admitted in the proceeding.
(2) A notice under subsection (1) must
set out, or be accompanied by writing that sets out, the specified statements.
(3) Within 14 days after a notice is given
under subsection (1), the other party may give to the adducing party a
written notice:
(a) stating that the other party
objects to specified statements being admitted in evidence in the proceeding;
and
(b) specifies, in relation to each of
those statements, the grounds of objection.
(4) The period prescribed by subsection (3)
may be extended by the court or tribunal or by agreement between the parties
concerned.
(5) On receiving a notice given under subsection (3),
the adducing party must give to the court or tribunal a copy of:
(a) the notice under subsection (1)
and any writing that subsection (2) required to accompany that notice; and
(b) the notice under subsection (3).
(6) Where subsection (5) is complied
with, the court or tribunal may either:
(a) determine the objections as a
preliminary point before the hearing of the proceeding begins; or
(b) defer determination of the
objections until the hearing.
(7) Where a notice has been given in
accordance with subsections (1) and (2), the other party is not entitled
to object at the hearing of the proceeding to a statement specified in the
notice being admitted in evidence in the proceeding, unless:
(a) the other party has, in accordance
with subsection (3), objected to the statement being so admitted; or
(b) the court or tribunal gives the
other party leave to object to the statement being so admitted.
80
Copies of, or extracts from, certain books
(1) A copy of, or an extract from, a book
relating to:
(a) affairs of a body corporate; or
(aa) an audit‑related matter referred
to in subparagraph 30A(2)(a)(i); or
(b) a matter referred to in any of
paragraphs 31(1)(g) to (m), inclusive; or
(c) a matter referred to in paragraph
32A(c) or (d);
is admissible in evidence in a proceeding as if the copy
were the original book, or the extract were the relevant part of the original
book, as the case may be, whether or not the copy or extract was made under
section 37.
(2) A copy of, or an extract from, a book is
not admissible in evidence under subsection (1) unless it is proved that
the copy or extract is a true copy of the book, or of the relevant part of the
book, as the case may be.
(3) For the purposes of subsection (2),
a person who has compared:
(a) a copy of a book with the book; or
(b) an extract from a book with the
relevant part of the book;
may give evidence, either orally or by an affidavit or
statutory declaration, that the copy or extract is a true copy of the book or
relevant part, as the case may be.
81
Report under Division 1
Subject to section 82, where a copy
of a report under Division 1 purports to be certified by ASIC as a true
copy of such a report, the copy is admissible in a proceeding (other than a
criminal proceeding) as prima facie evidence of:
(a) ASIC’s report of its opinion for
the purposes of paragraph 461(1)(h) or subparagraph 583(c)(iii) of the
Corporations Act; and
(b) any facts or matters that the
report states ASIC to have found to exist.
82
Exceptions to admissibility of report
(1) This section applies where a party to a
proceeding tenders a copy of a report as evidence against another party.
(2) The copy is not admissible under section 81
in the proceeding as evidence against the other party unless the court or
tribunal is satisfied that:
(a) a copy of the report has been
given to the other party; and
(b) the other party, and the other
party’s lawyer, have had a reasonable opportunity to examine that copy and to
take its contents into account in preparing the other party’s case.
(3) Before or after the copy referred to in subsection (1)
is admitted in evidence, the other party may apply to cross‑examine, in
relation to the report, a specified person who, or 2 or more specified persons
each of whom:
(a) was concerned in preparing the
report or making a finding about a fact or matter that the report states ASIC
to have found to exist; or
(b) whether or not pursuant to a
requirement made under this Part, gave information, or produced a book, on the
basis of which, or on the basis of matters including which, such a finding was
made.
(4) The court or tribunal must grant an
application made under subsection (3) unless it considers that, in all the
circumstances, it is not appropriate to do so.
(5) If:
(a) the court or tribunal grants an
application or applications made under subsection (3); and
(b) a person to whom the application
or any of the applications relate, or 2 or more such persons, is or are unavailable,
or does not or do not attend, to be cross‑examined in relation to the report;
and
(c) the
court or tribunal is of the opinion that to admit the copy under section 81
in the proceeding as evidence against the other party without the other party having
the opportunity so to cross‑examine the person or persons would unfairly
prejudice the other party;
the court or tribunal must refuse so to admit the copy, or
must treat the copy as not having been so admitted, as the case requires.
83
Material otherwise admissible
Nothing in this Division renders
evidence inadmissible in a proceeding in circumstances where it would have been
admissible in that proceeding if this Division had not been enacted.
Division 10—Miscellaneous
84
Requirement made of a body corporate
Where a provision of this Part empowers
a person to make a requirement of a body corporate, the provision also empowers
the person to make that requirement of a person who is or has been an officer
or employee of the body.
85
Evidence of authority
A person (the inspector),
other than ASIC, who is about to make, or has made, a requirement of another
person under this Part (other than Division 6) must, if the other person
requests evidence of the inspector’s authority to make the requirement, produce
to the other person:
(a) a current identity card that was
issued to the inspector by ASIC and incorporates a photograph of the inspector;
and
(b) if the requirement will be, or
was, made under an authorisation by ASIC—a document that was issued by ASIC and
sets out the effect of so much of the authorisation as is relevant to making
the requirement; and
(c) otherwise—such evidence (if any)
of the inspector’s authority to make the requirement as ASIC determines.
86
Giving documents to natural persons
Section 109X of the Corporations
Act has effect for the purposes of this Part as if a reference in subsection (2)
of that section to leaving a document at an address were a reference to leaving
it at that address with a person whom the person leaving the document believes
on reasonable grounds:
(a) to live or work at that address;
and
(b) to have attained the age of 16
years.
87
Place and time for production of books
A
provision of this Part that empowers a person to require the production of
books at a place and time specified by the person is taken:
(a) to require the person to specify a
place and time that are reasonable in all the circumstances; and
(b) if it is reasonable in all the
circumstances for the person to require the books to be produced forthwith—to
empower the person to require the books to be produced forthwith.
88
Application of Crimes Act and Evidence Act
(1) For the purposes of Part III of the
Crimes Act 1914, an examination or a hearing is a judicial proceeding.
(2) Part 2.2, sections 69, 70, 71
and 147 and Division 2 of Part 4.6 of the Evidence Act 1995 apply
to an examination in the same way that they apply to a proceeding to which that
Act applies under section 4 of that Act.
89
Allowances and expenses
(1) A person who, pursuant to a requirement
made under section 19, appears for examination is entitled to the
prescribed allowances and expenses (if any).
(2) A person who, pursuant to a summons
issued under section 58, appears at a hearing is entitled to be paid:
(a) if the summons was issued at
another person’s request—by that other person; or
(b) otherwise—by ASIC;
the prescribed allowances and expenses (if any).
(3) ASIC may pay such amount as it thinks
reasonable on account of the costs and expenses (if any) that a person incurs
in complying with a requirement made under this Part.
90
Expenses of investigation under Division 1
Subject to section 91, ASIC must
pay the expenses of an investigation.
91
Recovery of expenses of investigation
(1) Where:
(a) a person is convicted of an
offence against a law of the Commonwealth, or of a State or Territory in this
jurisdiction, in a prosecution; or
(b) a judgment is awarded, or a
declaration or other order is made, against a person in a proceeding in a court
of this jurisdiction; or
(ba) a person is convicted of an offence
against Division 2 of Part 2 in a prosecution; or
(bb) a judgment is awarded, or a
declaration or other order is made, against a person under Division 2 of
Part 2 in a proceeding in a court;
begun as a result of an investigation under Division 1,
ASIC may make one of the following orders:
(c) an order that the person pay the
whole, or a specified part, of the expenses of the investigation;
(d) an order that the person reimburse
ASIC to the extent of a specified amount of such of the expenses of the
investigation as ASIC has paid;
(e) an order that the person pay, or
reimburse ASIC in respect of, the whole, or a specified part, of the cost to
ASIC of making the investigation, including the remuneration of a member or
staff member concerned in the investigation.
(2) An order under this section must be in
writing and must specify when and how the payment or reimbursement is to be
made.
(3) A person must comply with an order under
this section that is applicable to the person.
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
(3A) Subsection (3) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(4) ASIC may recover in a court of competent
jurisdiction as a debt due to ASIC so much of the amount payable under an order
made under this section as is not paid in accordance with the order.
(5) A report under Division 1 may
include recommendations about the making of orders under this section.
92
Compliance with Part
A person is neither liable to a
proceeding, nor subject to a liability, merely because the person has complied,
or proposes to comply, with a requirement made, or purporting to have been
made, under this Part.
93
Effect of Part
(1) Except as expressly provided, nothing in
this Part limits the generality of anything else in this Part.
(2) The functions and powers that this Part
confers are in addition to, and do not derogate from, any other function or
power conferred by a law of the Commonwealth, a State or a Territory.
93AA
Enforcement of undertakings
(1) ASIC may accept a written undertaking
given by a person in connection with a matter in relation to which ASIC has a
function or power under this Act.
(2) The person may withdraw or vary the
undertaking at any time, but only with ASIC’s consent.
(3) If ASIC considers that the person who
gave the undertaking has breached any of its terms, ASIC may apply to the Court
for an order under subsection (4).
(4) If the Court is satisfied that the person
has breached a term of the undertaking, the Court may make all or any of the
following orders:
(a) an order directing the person to
comply with that term of the undertaking;
(b) an order directing the person to
pay to the Commonwealth an amount up to the amount of any financial benefit
that the person has obtained directly or indirectly and that is reasonably
attributable to the breach;
(c) any order that the Court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the Court
considers appropriate.
Part 3A—Enforceable undertakings in relation to registered schemes
93A
Undertakings by responsible entity
(1) ASIC may accept a written undertaking
given by the responsible entity of a registered scheme in connection with a
matter:
(a) concerning the registered scheme;
and
(b) in relation to which ASIC has a
power or function under the corporations legislation (other than the excluded
provisions).
(2) The responsible entity may withdraw or
vary the undertaking at any time, but only with ASIC’s consent.
(3) If ASIC considers that the responsible
entity has breached any of the terms of the undertaking, ASIC may apply to the
Court for an order under subsection (4).
(4) If the Court is satisfied that the
responsible entity has breached a term of the undertaking, the Court may make
all or any of the following orders:
(a) an order directing the responsible
entity to comply with that term of the undertaking;
(b) an order directing the responsible
entity to transfer to scheme property an amount up to the amount of any
financial benefit that the responsible entity has obtained directly or
indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers
appropriate directing the responsible entity to compensate any person who has
suffered loss or damage as a result of the breach;
(d) any other order that the Court
considers appropriate.
(5) ASIC must keep a record of the full text
of the undertaking.
(6) ASIC must make available to a person who
asks for it a copy of the text of the undertaking, but ASIC must delete from
the copy information:
(a) that the responsible entity has
asked it not to release; and
(b) that
ASIC is satisfied:
(i) is commercial in
confidence; or
(ii) should not be
disclosed because it would be against the public interest to do so; or
(iii) consists of personal
details of an individual.
(7) If ASIC makes available a copy that has
information deleted from it, the copy must include a note stating that
information has been deleted.
Part 4—ASIC’s business
Division 1—General
94
Arrangement of ASIC’s business
Subject to sections 10A and 12, ASIC may
give directions about the arrangement of ASIC’s business.
95
ASIC to establish offices
(1) For the purpose of performing its
functions and exercising its powers under the corporations legislation, ASIC:
(a) must establish a regional office
in each State and Territory (other than an external Territory) in this
jurisdiction; and
(b) may establish a regional office in
a State that is not in this jurisdiction; and
(c) may establish such other offices
as it thinks fit.
(2) In deciding on the number and location of
its offices, ASIC must seek to ensure that:
(a) for the purposes of the
corporations legislation (other than the excluded provisions)—it serves
adequately the needs of business communities in the States and Territories in
this jurisdiction; and
(b) for the purposes of Division 2
of Part 2—it serves adequately the needs of business communities
throughout Australia.
96
Regional Commissioners
For each regional office established
under subsection 95(1) there is to be a different Regional Commissioner,
employed by ASIC under subsection 120(3), who must manage the office.
Division 2—Divisions of ASIC
97
ASIC may establish Division
(1) ASIC may direct in writing that a
Division of ASIC consisting of at least 2 specified members is to, either
generally or as otherwise provided by the direction, perform or exercise
specified functions or powers of ASIC.
(2) A direction under this section that is in
force and does not specify the Chairperson as a member of the Division must
specify such a member as the Division’s chairperson.
98
Effect of direction establishing Division
(1) Where a direction under section 97
is in force, this section has effect for the purposes of the performance or
exercise by the Division, in accordance with the direction, of functions or
powers of ASIC.
(2) ASIC is taken to consist of the Division.
(3) If the Chairperson is not a member of the
Division, the member whom the direction specifies as the Division’s chairperson
is taken to be the Chairperson.
(4) A meeting of the Division is taken to be
a meeting of ASIC, but 2 members of the Division form a quorum at a meeting of
the Division.
99
ASIC may reconstitute Division
Where a direction under section 97
is in force, ASIC may at any time revoke the direction or amend it in relation
to the Division’s membership or in any other respect.
100
Effect of reconstituting Division
(1) This section has effect where, as at the
time when a direction is amended under section 99 so as to change a
Division’s membership, the Division as constituted before the change has, in
relation to a particular matter, begun but not yet completed the performance of
functions, or the exercise of powers, in accordance with the direction as in
force before the amendment.
(2) The Division as constituted after the
change may, in relation to that matter, perform functions, and exercise powers,
in accordance with the direction as in force after the amendment.
101
Multiple Divisions
A Division of ASIC may perform
functions, or exercise powers, of ASIC even though another such Division is
performing such functions, or exercising such powers, at the same time.
Division 3—Delegation by ASIC
102
Delegation
(1) ASIC may, by writing under its common
seal, delegate to a person all or any of its functions and powers.
(2) ASIC must not, without the Minister’s
approval, delegate a function or power to a person other than:
(a) a member; or
(b) a staff member; or
(c) a person who, by virtue of the
regulations, is a prescribed person in relation to the delegation; or
(d) a person appointed by the Chair of
APRA under section 45 of the Australian Prudential Regulation Authority
Act 1998; or
(e) a member of the staff of the
Australian Competition and Consumer Commission referred to in subsection 27(1)
of the Competition and Consumer Act 2010.
(2A) ASIC must not delegate a function or power
to an APRA staff member within the meaning of the Australian Prudential
Regulation Authority Act 1998, unless the Chief Executive Officer of APRA
has agreed to the delegation in writing.
(2B) ASIC must not delegate a function or power
to:
(a) a person referred to in
paragraph (2)(e); or
(b) a person engaged under
section 27A of the Competition and Consumer Act 2010;
unless the Chairperson of the Australian Competition and
Consumer Commission has agreed to the delegation in writing.
(2C) ASIC must not delegate a function or power
under section 12GLC, or under Subdivision GB or GC of Division 2 of
Part 2, to a person other than:
(a) a member of ASIC; or
(b) a member of staff who is an SES
employee or an acting SES employee.
(3) In subsections (1)
and (2):
person
includes a body.
(4) In exercising its power under subsection (1),
ASIC must seek to ensure that:
(a) the persons who make decisions
affecting a particular business community are located as close to that
community as practicable; and
(b) for the purposes of the
corporations legislation (other than the excluded provisions)—members of
business communities in the States and Territories in this jurisdiction have
prompt and convenient access to decision‑making and to ASIC’s facilities; and
(c) for the purposes of Division 2
of Part 2—members of business communities throughout Australia have prompt and convenient access to decision‑making and to ASIC’s facilities.
(5) In the performance of a function, or the
exercise of a power, delegated under this section, the delegate is subject to
ASIC’s directions.
(6) Where a function or power conferred on
ASIC by or under a law (including this Act) and delegated under this section is
performed or exercised by the delegate, it is, for the purposes of that law and
this Act, taken to have been performed or exercised by ASIC.
Division 4—Meetings of ASIC
103
Convening of meetings
(1) The Chairperson may convene a meeting to
be held at a place and time he or she determines.
(2) The Chairperson must convene such
meetings as he or she thinks necessary for the efficient performance of ASIC’s
functions.
(3) If so requested in writing by 2 of the
members, the Chairperson must convene a meeting.
104
Approved methods of communication
(1) If all the members who are not absent
from office so agree, a meeting may be held by means of a method of
communication, or by means of a combination of methods of communication,
approved by ASIC for the purposes of that meeting.
(2) For the purposes of this Part, a member
who participates in a meeting held as permitted by subsection (1) is
present at the meeting even if he or she is not physically present at the same
place as another member participating in the meeting.
(3) In this section:
meeting includes a part of a meeting.
105
Quorum
At a meeting:
(a) if ASIC consists of 3 or 4
members—2 members; or
(b) in any other case—3 members;
form a quorum.
106
Who is to preside at meetings
(1) The Chairperson must preside at all
meetings at which he or she is present.
(2) If the Chairperson is not present at a
meeting but the Deputy Chairperson is present, the Deputy Chairperson must
preside.
(3) If neither the Chairperson nor the Deputy
Chairperson is present at a meeting, the members present must elect one of
their number to preside.
107
Procedure at meetings
(1) Questions arising at a meeting must be
determined by a majority of the votes of the members present at the meeting.
(2) The member presiding at a meeting has a
deliberative vote but not a casting vote.
Part 5—ASIC’s members
Division 1—Terms and conditions
108
Term of office as member
(1) Subject to this Act, a person appointed
as a member holds office for such term of at most 5 years as is specified in the
instrument of appointment, but is eligible for re‑appointment.
109
Term of office as Chairperson or Deputy Chairperson
(1) Subject to this Act, a member appointed
as Chairperson or Deputy Chairperson holds office as such until:
(a) in any case—the end of his or her
current term as a member; or
(b) in any case—he or she otherwise
stops being a member; or
(c) in the case of a member appointed
as Deputy Chairperson—he or she is appointed as Chairperson;
whichever happens first.
(2) A person is not ineligible to be
appointed under section 10 merely because he or she has been so appointed
before.
110
Resignation
A person may resign as a member, as
Chairperson, or as Deputy Chairperson, by writing signed and delivered to the
Governor‑General.
111
Termination of appointment
(1) The Governor‑General may terminate a
member’s appointment because of misbehaviour, or the physical or mental
incapacity, of the member or if the member:
(a) becomes bankrupt, applies to take
the benefit of a law for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or assigns remuneration or property for their
benefit; or
(b) is a full‑time member and engages
without the Minister’s consent in paid employment outside the duties of the
member’s office; or
(c) is a full‑time member and is
absent from duty, except on leave of absence, for 14 consecutive days, or for
28 days in any period of 12 months; or
(d) is a part‑time member and is
absent, except on leave granted in accordance with subsection 113(2), from 3
consecutive meetings of ASIC; or
(e) without reasonable excuse,
contravenes section 123, subsection 124(2), (4) or (6) or section 125.
(2) The Governor‑General may, with the
consent of a full‑time member who is:
(a) an eligible employee; or
(b) a member of the superannuation
scheme established by deed under the Superannuation Act 1990; or
(c) an ordinary employer‑sponsored
member of PSSAP, within the meaning of the Superannuation Act 2005;
retire the member from office on the ground of incapacity.
(3) In spite of anything contained in this
section, a member who:
(a) is an eligible employee; and
(b) has not reached his or her maximum
retiring age (within the meaning of the Superannuation Act 1976);
is not capable of being retired from office on the ground
of invalidity (within the meaning of Part IVA of that Act) unless the
Board (within the meaning of that Act) has given a certificate under
section 54C of that Act.
(4) In spite of anything contained in this
section, a member who:
(a) is a member of the superannuation
scheme established by deed under the Superannuation Act 1990; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground
of invalidity (within the meaning of that Act) unless the Board (within the
meaning of that Act) has given a certificate under section 13 of that Act.
(5) In spite
of anything contained in this section, a member who:
(a) is an ordinary employer‑sponsored
member of PSSAP, within the meaning of the Superannuation Act 2005; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground
of invalidity (within the meaning of that Act) unless the Board (within the
meaning of that Act) has given an approval and certificate under
section 43 of that Act.
112
Remuneration and allowances etc.
(1) A member must be paid such remuneration
as is determined by the Remuneration Tribunal but, if no determination of that
remuneration by the Tribunal is in operation, a member must be paid such
remuneration as the Minister determines in writing.
(2) A member must be paid such allowances,
and, subject to subsection (3), provided with such other benefits, as the
Minister determines in writing.
(3) The benefits in respect of which the
Minister may make a determination under subsection (2) are such benefits
(including benefits by way of financial or other assistance in connection with
housing, transport, insurance, long service leave and superannuation) as, in
the Minister’s opinion, are necessary or desirable to assist a member in, or
place the member in a position that may facilitate, the performance of his or
her functions.
(4) ASIC may reimburse a member for any loss
or expenditure incurred by the member because of, or in the course of, the
performance of his or her functions.
(5) This section has effect subject to the Remuneration
Tribunal Act 1973.
113
Leave of absence
(1) A full‑time member has such recreation
leave entitlements as are determined by the Remuneration Tribunal.
(2) The
Minister may:
(a) grant a full‑time member leave of
absence, other than recreation leave, on such terms and conditions as to
remuneration or otherwise as the Minister determines; and
(b) grant a part‑time member leave of
absence from a meeting of ASIC.
114
Superannuation arrangements
(1) The Minister may make a written
determination about the provision of superannuation benefits for or in relation
to a specified full‑time member who, when the determination is made, is not an
eligible employee or a member of the superannuation scheme established by deed
under the Superannuation Act 1990.
(2) The Minister may, by writing, vary or
revoke a determination made under subsection (1), even if it has been
varied at least once before.
(3) The Minister must not make a
determination under subsection (1), or vary or revoke a determination so
made, except in accordance with arrangements approved by the Minister under the
Superannuation Benefits (Supervisory Mechanisms) Act 1990.
(4) Superannuation benefits may be provided
in accordance with a determination under subsection (1) as that
determination is in force when the benefits are provided.
115
Other terms and conditions
A member holds office on such terms and
conditions (if any) in respect of matters not provided for by this Act as the Minister
determines in writing.
Division 2—Acting appointments
116
Acting members
(1) The Minister may:
(a) appoint a person to act as a full‑time
member during any period when there are less than 8 persons who are members or
are acting as members in accordance with this paragraph or paragraph (b);
or
(b) appoint a person to act as a part‑time
member during any period when there are less than 8 persons who are members or
are acting as members in accordance with this paragraph or paragraph (a)
and there are at least 3 persons who are full‑time members or are acting as
members in accordance with paragraph (a); or
(c) appoint a person to act as a full‑time
member or as a part‑time member during any period when a full‑time member
(other than the Chairperson or the Deputy Chairperson) or a part‑time member,
as the case may be, is absent from office, is acting as Deputy Chairperson in
accordance with section 118 or, in the case of a part‑time member, is, for
any reason, unable to perform the functions of his or her office.
(2) Except so far as the contrary intention
appears, a reference in this Act to a member of ASIC includes a reference to a
person who is acting as a member under subsection (1).
117
Acting Chairperson
The Minister may appoint a member to act
as Chairperson:
(a) during a vacancy in the office of
Chairperson, whether or not an appointment has previously been made to the
office; or
(b) during any period, or during all
periods, when the Chairperson is absent from office.
118
Acting Deputy Chairperson
The
Minister may appoint a member to act as Deputy Chairperson:
(a) during a vacancy in the office of
Deputy Chairperson, whether or not an appointment has previously been made to
the office; or
(b) during any period, or during all
periods, when the Deputy Chairperson is absent from office or is acting as
Chairperson.
119
Limitation on appointments to act during vacancy
A person appointed under section 116,
117 or 118 to act during a vacancy must not continue for more than 12 months to
act during the vacancy.
Division 3—Delegation by members
119A
Delegation by members
(1) A member may, in writing, delegate to a
person all or any of his or her functions and powers.
(2) A member must not, without the Minister’s
approval, delegate a function or power to a person other than:
(a) a staff member; or
(b) a person who, by virtue of the
regulations, is a prescribed person in relation to the delegation.
(3) In the performance of a function, or the
exercise of a power, delegated under this section, the delegate is subject to
the member’s directions.
Part 6—ASIC’s staff
120
Staff
(1) Subject to this Part, ASIC’s staff must
be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) ASIC and the APS employees
assisting ASIC together constitute a Statutory Agency; and
(b) the Chairperson of ASIC is the
Head of that Statutory Agency.
(3) In addition to the staff referred to in subsection (1),
the Chairperson may, on the Commonwealth’s behalf, employ under written
agreements such persons as the Chairperson thinks necessary for the performance
or exercise of any of its functions and powers.
(4) The terms and conditions of employment of
persons employed under subsection (3) are such as the Chairperson
determines from time to time with the Minister’s written approval.
121
Consultants etc.
(1) The Chairperson may, on the
Commonwealth’s behalf, engage, under written agreements, as consultants to, or
to perform services for, ASIC in connection with the performance or exercise of
any of its functions or powers, persons having suitable qualifications and
experience.
(2) The terms and conditions of engagement of
persons engaged under subsection (1) are such as the Chairperson
determines from time to time.
122
Staff seconded to ASIC
In addition to the other staff members,
officers and employees of Agencies (within the meaning of the Public Service
Act 1999), and of authorities of the Commonwealth, whose services are made
available to ASIC in connection with the performance or exercise of any of its
functions or powers are to assist ASIC.
Part 7—Preventing conflicts of interest and misuse of information
Division 1—Disclosure of interests
123
Members to disclose certain interests to Minister
(1) A member must, in accordance with this
section, disclose to the Minister:
(a) any direct or indirect pecuniary
interest that the member has or acquires in:
(i) a body corporate
carrying on business in Australia; or
(ii) a business in Australia; and
(b) any direct or indirect pecuniary
interest that the member has or acquires in interests (including financial
products) regulated by ASIC; and
(c) any agreement, understanding or
expectation that the member will:
(i) resume a previous
business relationship (whether or not that relationship existed immediately
before the member’s appointment); or
(ii) enter into a new
business relationship;
when the member ceases to be a
member; and
(d) any severance arrangement or
ongoing financial arrangement that takes account of an agreement, understanding
or expectation that must be disclosed under paragraph (c).
(2) For the purpose of paragraph (1)(b),
interests are regulated by ASIC if ASIC has a function or power in relation to
any aspect of the acquisition, holding, disposal or provision of the interests,
or of interests of that kind.
(3) In disclosing an indirect pecuniary
interest in financial products, the member must identify the particular
products.
(4) Paragraphs (1)(c) and (d) apply to
agreements or understandings entered into, or expectations arising, before or
after the member’s appointment.
(5) Paragraph (1)(c) does not require a
member to disclose an expectation to enter into a new business relationship
unless the member can identify the other party, or one or more other parties,
to the relationship. Disclosure is required whether or not the field of
business or legal nature of the relationship has been determined.
(6) A disclosure under this section must be
made in writing.
124
Members to disclose certain interests to Chairperson
(1) This section has effect where a member:
(a) is to take part, or is taking
part, in determining a matter before ASIC; and
(b) has or acquires a direct or
indirect pecuniary interest, or a direct or indirect interest of any other
kind, that could conflict with the proper performance of the member’s functions
in relation to determining the matter.
(2) If the member is not the Chairperson, the
member must disclose the interest to the Chairperson.
(3) If the member is not the Chairperson and
the Chairperson becomes aware that the member has the interest, the Chairperson
must:
(a) if the Chairperson considers that
the member should not take part, or not continue to take part, as the case
requires, in determining the matter—direct the member accordingly; or
(b) in any other case—cause the
member’s interest to be disclosed to the persons concerned in the matter.
(4) The member must comply with a direction
under paragraph (3)(a).
(5) If the member is the Chairperson, he or
she must cause his or her interest to be disclosed to the persons concerned in
the matter.
(6) Subject to subsection (4), the
member must not take part, or continue to take part, as the case requires, in
determining the matter unless everyone concerned in it consents to the member
so taking part.
125
Notification of interests to ASIC
(1) This
section has effect where a person, in the course of:
(a) performing functions or services
as a staff member (otherwise than as a person appointed or engaged under the Public
Service Act 1999); or
(b) performing a function, or
exercising a power, as an ASIC delegate; or
(c) performing functions or services
by way of assisting an ASIC delegate;
is required to consider a matter in which the person has a
direct or indirect pecuniary or other interest that could involve a conflict
with the proper performance or exercise by the person of those functions,
services or powers.
(2) The person must forthwith give to ASIC a
written notice:
(a) stating that he or she is required
to consider the matter and has an interest in it; and
(b) setting out particulars of the
interest.
(3) The person must not intentionally or
recklessly fail to do whatever is necessary to avoid the conflict referred to
in subsection (1).
Penalty: 50 penalty units or imprisonment for 12 months, or
both.
126
Defence
It is a defence to a prosecution of a
person for a contravention of section 125 if it is established that when
the person was required to consider the matter he or she was not aware of a
fact or thing whose existence obliged him or her to comply with that section in
relation to the matter.
Division 2—Confidentiality
127
Confidentiality
(1) ASIC must take all reasonable measures to
protect from unauthorised use or disclosure information:
(a) given to it in confidence in or in
connection with the performance of its functions or the exercise of its powers
under the corporations legislation (other than the excluded provisions); or
(b) that is protected information.
(1A) Disclosing summaries of information or
statistics derived from information is authorised use and disclosure of the
information provided that information relating to any particular person cannot
be found out from those summaries or statistics.
(2) For the purposes of subsection (1),
the disclosure of information as required or permitted by a law of the
Commonwealth or a prescribed law of a State or internal Territory is taken to
be authorised use and disclosure of the information.
(2A) Disclosing information to one of the
following is authorised use and disclosure of the information:
(a) the Minister;
(b) the Secretary of the Department
for the purpose of advising the Minister, or an officer authorised for that
purpose;
(c) APRA;
(d) the Reserve Bank of Australia.
(2B) Disclosing information to a Royal
Commission (within the meaning of the Royal Commissions Act 1902) is
authorised use and disclosure of the information.
(2C) The Chairperson may impose conditions to be
complied with in relation to information disclosed under subsection (2B).
(3) For the purposes of subsection (1),
the disclosure of information by a person for the purposes of:
(a) performing the person’s functions
as:
(i) a member, staff member
or ASIC delegate; or
(ii) a person who is acting
as a member or staff member or who is authorised to perform or exercise a
function or power of, or on behalf of, ASIC; or
(b) the performance of functions or
services by the person by way of assisting an ASIC delegate;
is taken to be authorised use and disclosure of the
information.
(4) Where the Chairperson is satisfied that
particular information:
(a) will enable or assist an agency,
being CAMAC, the Panel, the Disciplinary Board, the FRC, the Review Board or
any other agency within the meaning of the Freedom of Information Act 1982,
to perform or exercise any of the agency’s functions or powers; or
(aa) will enable or assist:
(ii) the Australian
Financial Institutions Commission; or
(iii) the Superannuation
Complaints Tribunal;
to perform any of its functions
or powers; or
(ab) will enable or assist an officer of
the Commonwealth Attorney‑General’s Department who is in the office known as
the Office of Law Enforcement Co‑ordination to perform any of his or her
functions or powers; or
(b) will enable or assist the
government, or an agency, of a State or Territory to perform a function or
exercise a power; or
(c) will enable or assist a
government, or an agency, of a foreign country to perform a function, or
exercise a power, conferred by a law in force in that foreign country; or
(ca) will enable or assist a foreign
body, although not an agency of a foreign country, to perform a regulatory
function, or to exercise a related power, conferred on the body by or under a
law in force in that foreign country; or
(d) will enable or assist a prescribed
professional disciplinary body to perform one of its functions;
the disclosure of the information to the agency,
government, foreign body or disciplinary body by a person whom the Chairperson
authorises for the purpose is taken to be authorised use and disclosure of the
information.
(4A) The Chairperson may impose conditions to be
complied with in relation to information disclosed under subsection (4).
(4B) The disclosure of information to a body
corporate specified in regulations under subsection (4C) (including a body
corporate that is a foreign company) is authorised use and disclosure of the
information if:
(a) the Chairperson is satisfied that
the information will enable or assist the body corporate to monitor compliance
with, enforce, or perform functions or exercise powers under:
(i) the Corporations Act;
or
(iaa) the business law of a
State that is not in this jurisdiction; or
(ia) the business law of a
foreign country; or
(ii) the operating rules of
the body corporate; and
(b) the disclosure is by a person
authorised by the Chairperson for the purpose.
(4C) The regulations may specify a body
corporate for the purposes of subsection (4B) if, and only if, the body
corporate:
(a) conducts, or is involved in the
supervision of, a financial market; or
(b) is a body corporate that holds an
Australian CS facility licence.
(4D) The Chairperson may impose conditions to be
complied with by a body corporate and its officers, employees and agents in
relation to information disclosed to the body corporate under subsection (4B).
(4E) A person must not intentionally or
recklessly fail to comply with a condition imposed under subsection (4D).
Penalty: 100 penalty units or imprisonment for 2 years, or
both.
(4EA) If ASIC discloses information to a
disciplinary body under paragraph (4)(d), the body or a member of the
body:
(a) must not disclose the information
to any other person; and
(b) must not use the information for
any purpose other than for deciding whether or not to take disciplinary or
other action or for taking that action.
Penalty: Imprisonment for 2 years.
(4F) If information is disclosed to a body
corporate under subsection (4B), the body corporate, or an officer,
employee or agent of the body corporate, must not intentionally or recklessly:
(a) disclose the information to a
person who is not an officer, employee or agent of the body corporate; or
(b) use the information.
Penalty: 100 penalty units or imprisonment for 2 years, or
both.
(4FA) Subsection (4F) does not apply to the
extent that:
(a) the person has the written consent
of the Chairperson; or
(b) the information is used for the
purpose of monitoring compliance with, enforcing, or performing functions or
exercising powers under:
(i) the Corporations Act;
or
(ii) the business law of a
State that is not in this jurisdiction; or
(iii) the business law of a
foreign country; or
(iv) the operating rules (if
any), of the body corporate.
Note: A defendant bears an evidential burden in
relation to the matters in this subsection, see subsection 13.3(3) of the Criminal
Code.
(5) The Chairperson may delegate all or any
of his or her functions and powers under subsection (2C), (4), (4A), (4B),
(4D) or (4FA) to a member or staff member.
(5A) Regulations made for the purpose of this
section may specify uses of information and disclosures of information that are
authorised uses and authorised disclosures for the purposes of this section.
(6) Nothing in any of subsections (1A),
(2), (2A), (2B), (2C), (3), (4), (4B) and (5) limits:
(a) anything else in any of those
subsections; or
(b) what may otherwise constitute, for
the purposes of subsection (1), authorised use or disclosure of
information.
(9) In this
section:
Income Tax Assessment Act means the Income
Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.
protected information means information
disclosed or obtained, or a document given or produced, (whether before or
after the commencement of this section), for the purposes of a function in
section 12A and relating to the affairs of:
(a) a body or person regulated by
ASIC; or
(b) a body corporate (including a body
corporate that has ceased to exist) that has at any time been, or is, related
(within the meaning of the Corporations Act) to a body regulated by ASIC; or
(c) a person who has been, is, or
proposes to be, a customer of a body or person regulated by ASIC;
other than information that has already been lawfully made
available to the public from other sources.
RSA Act means the Retirement Savings
Accounts Act 1997.
SIS Act means the Superannuation Industry
(Supervision) Act 1993.
Part 8—Finance and reporting requirements
Division 1—Companies and Unclaimed Moneys Special Account
133
Companies and Unclaimed Moneys Special Account
(1) The Companies and Unclaimed Moneys
Special Account is established by this section.
(2) The Account is a Special Account for the
purposes of the Financial Management and Accountability Act 1997.
134
Credits to the Account
There must be credited to the Account
amounts equal to the following:
(a) all money appropriated by the
Parliament for the purposes of the Account;
(b) amounts referred to in paragraphs
1339(2)(a) and (b) of the Corporations Act 2001;
(c) interest received by ASIC from the
investment of amounts debited from the Account;
(d) money received by ASIC in relation
to property paid for with amounts debited from the Account.
Note: An Appropriation Act provides for amounts to
be credited to a Special Account if any of the purposes of the Account is a
purpose that is covered by an item in the Appropriation Act.
135
Purpose of the Account
(1) This section sets out the purposes of the
Account.
(2) Amounts standing to the credit of the
Account may be debited for the following purposes:
(a) the purpose of subsection 1341(1)
of the Corporations Act 2001;
(b) in payment to a person under
paragraph 1341(2)(c) of the Corporations Act 2001;
(c) to meet the expenses of
administering the Account;
(d) in respect of amounts credited
under paragraph 134(c) of this Act—in payment in relation to proposals
determined by the Minister to reduce business costs and improve regulation in
one or more of the following areas:
(i) corporate governance
of managed investment schemes and bodies corporate;
(ii) securities;
(iii) financial products;
(iv) winding up and external
administration of managed investment schemes and bodies corporate.
Note: See section 21 of the Financial
Management and Accountability Act 1997.
Division 2—Reporting requirements
136 Annual
reports
Annual report to be given to Minister
(1) The Chairperson must, as soon as
practicable after 30 June in each financial year, prepare and give to the
Minister a report on ASIC’s operations during that financial year.
Note: Section 34C of the Acts Interpretation
Act 1901 contains provisions relating to annual reports.
Contents of annual report
(2) A report under subsection (1) must
include the following:
(a) a description of the specific
goals ASIC has pursued, and the priorities it has followed, during the year, in
performing its functions, exercising its powers and pursuing the objects
referred to in subsection 1(2) of this Act;
(b) a description of the progress ASIC
has made during that year towards achieving those goals;
(c) a description of any matters that,
during that year, have adversely affected ASIC’s effectiveness or have hindered
ASIC in pursuing any of those goals and objectives;
(d) a description of the performance
indicators used by ASIC, and ASIC’s performance against those indicators;
(e) information about the exercise
during the year of ASIC’s powers under Part 15 of the Retirement
Savings Accounts Act 1997 and under Part 29 of the Superannuation
Industry (Supervision) Act 1993;
(f) information about ASIC’s
monitoring and promotion of market integrity and consumer protection in
relation to:
(i) the Australian
financial system; and
(ii) the provision of
financial services;
(g) in relation to ASIC’s functions
under subsection 11(14), in relation to each agreement or arrangement entered
into by ASIC under that subsection, information about the activities that ASIC
has undertaken during the reporting period in accordance with that agreement or
arrangement;
(h) the financial statements required
by section 49 of the Financial Management and Accountability Act 1997;
(i) an audit report on those
statements under section 57 of the Financial Management and
Accountability Act 1997.
Annual report to be tabled in Parliament
(3) The Minister must cause a copy of each
annual report to be tabled in each House within 15 sitting days of that House
after the day on which the Minister receives the report.
Division 3—Liability to taxation
137
Liability to taxation
(1) ASIC is not subject to taxation under the
laws of the Commonwealth or of a State or Territory.
(2) The regulations may provide that
subsection (1) does not apply in relation to a specified law.
Note: Despite subsection (1), ASIC may be
subject to taxation under certain laws. See, for example, section 177‑5 of
the A New Tax System (Goods and Services Tax) Act 1999.
Part 9—The Corporations and Markets Advisory Committee
Division 1—General
146
CAMAC is a body corporate
(1) CAMAC:
(a) is a body corporate, with
perpetual succession; and
(b) is to have a common seal; and
(c) may acquire, hold and dispose of
real and personal property; and
(d) may sue and be sued in its
corporate name.
Note 1: CAMAC was (under its previous name of the
Companies and Securities Advisory Committee) established by section 145 of
the Australian Securities and Investments Commission Act 1989 and is
continued in existence by section 261 of this Act.
Note 2: The Convenor of CAMAC may enter into contracts
on behalf of the Commonwealth. See section 44 of the Financial
Management and Accountability Act 1997.
(2) Any real or personal property held by
CAMAC is held for and on behalf of the Commonwealth.
(3) Any money received by CAMAC is received
for and on behalf of the Commonwealth.
(4) To avoid doubt, a right to sue is taken
not to be personal property for the purposes of subsection (2).
146A
CAMAC’s liabilities are Commonwealth liabilities
(1) Any financial liabilities of CAMAC are
taken to be liabilities of the Commonwealth.
(2) For the purposes of this section:
financial liability means a liability to pay
a person an amount where the amount, or the method for working out the amount,
has been determined.
147
Membership
(1) CAMAC consists of the following members,
namely, the Chairperson of ASIC and such other members as hold office in
accordance with this Part.
(2) The members (other than the Chairperson
of ASIC) are to be appointed by the Minister on a part‑time basis.
(3) The Minister must, by writing, appoint a
member (other than the Chairperson of ASIC) as the Convenor of CAMAC.
(4) The Minister must appoint a person as a
member only if the Minister is satisfied that the person is qualified for
appointment by virtue of his or her knowledge of, or experience in, one or more
of the following fields, namely:
(a) business;
(b) administration of companies;
(c) financial markets;
(d) financial products and financial
services;
(e) law;
(f) economics;
(g) accounting.
(5) In appointing the members:
(a) the Minister must have regard to
the desirability of the views of business communities in this jurisdiction
being adequately represented among the members; and
(b) the Minister must ensure so far as
practicable that at any time there is at least one member of CAMAC from each
State in this jurisdiction and the Northern Territory.
(6) For the purposes of subsection (5),
a member is from a particular State or Territory if he or she is a resident of
that State or Territory.
147A
Convenor not subject to direction by CAMAC on certain matters
The Convenor of CAMAC is not subject to
direction by CAMAC in relation to the Convenor’s performance of functions, or
exercise of powers, under:
(a) the Financial Management and
Accountability Act 1997; or
(b) the Public Service Act 1999;
in relation to CAMAC.
148
Functions
CAMAC’s functions are, on its own
initiative or when requested by the Minister, to advise the Minister, and to
make to the Minister such recommendations as it thinks fit, about any matter
connected with:
(a) a proposal to make corporations
legislation, or to make amendments of the corporations legislation (other than
the excluded provisions); or
(b) the operation or administration of
the corporations legislation (other than the excluded provisions); or
(c) law reform in relation to the
corporations legislation (other than the excluded provisions); or
(d) companies or a segment of the
financial products and financial services industry; or
(e) a proposal for improving the
efficiency of the financial markets.
149
Term of office as member
Subject to this Act, a person appointed
as a member holds office for such term of at least one year and at most 3 years
as is specified in the instrument of appointment, but is eligible for re‑appointment.
150
Resignation
A person appointed as a member may
resign as a member by writing signed by the person and delivered to the
Minister.
151
Termination of appointment
The Minister may terminate the
appointment of a member:
(a) because of the physical or mental
incapacity of the member; or
(b) if the member becomes bankrupt,
applies to take the benefit of a law for the relief of bankrupt or insolvent
debtors, compounds with his or her creditors or assigns remuneration or
property for their benefit.
152
Remuneration and allowances etc.
(1) A member must be paid such remuneration
as is determined by the Remuneration Tribunal but, if no determination of that
remuneration by the Tribunal is in operation, a member must be paid such
remuneration as the Minister determines in writing.
(2) A member must be paid such allowances as
the Minister determines in writing.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
(4) In this section:
member does not include the Chairperson of
ASIC.
153
Meetings
(1) Where the Convenor is absent from a
meeting, the members who are present at the meeting may appoint one of their
number to act as Convenor for the purposes of that meeting.
(1A) The Chairperson of ASIC may nominate in
writing a person to attend a particular meeting, or all meetings, of CAMAC at
which the Chairperson is not present.
(1B) The Chairperson may only nominate a person
who is:
(a) a member of ASIC; or
(b) an SES employee or acting SES
employee of ASIC.
(2) The procedure at a meeting must be
determined by the members present.
154
CAMAC to inform itself in any manner
For the purposes of the performance by
CAMAC of any of its functions, CAMAC may inform itself in such manner as it
sees fit.
155
Publication of advice or recommendations
(1) The Minister may, after consulting CAMAC,
publish any advice or recommendations given to him or her by CAMAC.
(2) Nothing in subsection (1) affects
the power of CAMAC to publish any advice or recommendations that it has given
to the Minister.
Division 2—Staff
156
Staff
(1) Subject to this Part, CAMAC’s staff must
be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the Convenor and the APS employees
assisting the Convenor together constitute a Statutory Agency; and
(b) the Convenor is the Head of that
Statutory Agency.
(3) In addition to the staff referred to in subsection (1),
CAMAC may, on the Commonwealth’s behalf, employ under written agreements such
persons as CAMAC thinks necessary for the performance or exercise of any of its
functions and powers.
(4) The terms and conditions of employment of
persons employed under subsection (3) are such as CAMAC determines from
time to time with the Minister’s written approval.
157
Consultants etc.
(1) CAMAC may, on the Commonwealth’s behalf,
engage, under written agreements, as consultants to, or to perform services
for, CAMAC, in connection with the performance or exercise of any of its
functions or powers, persons having suitable qualifications and experience.
(2) The terms and conditions of engagement of
persons engaged under subsection (1) are such as CAMAC determines from
time to time.
158
Staff seconded to CAMAC
In addition to the other staff of CAMAC:
(a) officers and employees of Agencies
(within the meaning of the Public Service Act 1999), and of authorities
of the Commonwealth, whose services are made available to CAMAC in connection
with the performance or exercise of any of its functions or powers; and
(b) persons whose services are so made
available under arrangements made under section 249;
are to assist CAMAC.
Division 3—Liability to taxation
159
Liability to taxation
(1) CAMAC is not subject to taxation under
the laws of the Commonwealth or of a State or Territory.
(2) The regulations may provide that
subsection (1) does not apply in relation to a specified law.
Note: Despite subsection (1), CAMAC may be
subject to taxation under certain laws. See, for example, section 177‑5 of
the A New Tax System (Goods and Services Tax) Act 1999.
Division 4—Reporting requirements
162
Annual report
Annual report to be given to Minister
(1) The Convenor must, as soon as practicable
after 30 June in each financial year, prepare and give to the Minister a
report on CAMAC’s operations during that financial year.
Note: Section 34C of the Acts Interpretation
Act 1901 contains provisions relating to annual reports.
Contents of annual report
(2) A report under subsection (1) must
include the following:
(a) the financial statements required
by section 49 of the Financial Management and Accountability Act 1997;
and
(b) an audit report on those
statements under section 57 of the Financial Management and
Accountability Act 1997.
Annual report to be tabled in Parliament
(3) The Minister must cause a copy of each
annual report to be tabled in each House within 15 sitting days of that House
after the day on which the Minister receives the report.
Part 10—The Takeovers Panel
Division 1—General
172
Membership
(1) The Panel consists of such members, not
fewer than 5, as hold office in accordance with this Part.
Note: The Panel was established by section 171
of the Australian Securities and Investments Commission Act 1989 and is
continued in existence by section 261 of this Act. It was renamed by the Financial
Services Reform Act 2001.
(2) The Governor‑General is to appoint the members
on the nomination of the Minister.
(3) Each of the members may be appointed as a
full‑time member or as a part‑time member.
(4) The Minister must nominate a person as a
member only if the Minister is satisfied that the person is qualified for appointment
by virtue of his or her knowledge of, or experience in, one or more of the
following fields, namely:
(a) business;
(b) administration of companies;
(c) financial markets;
(d) financial products and financial
services;
(e) law;
(f) economics;
(g) accounting.
(4A) Each person who is the Minister for a State
in this jurisdiction or the Northern Territory may from time to time give to
the Minister the names of persons who, in the opinion of the first‑mentioned
Minister:
(a) are qualified for appointment as
members of the Panel by virtue of their knowledge of, or experience in, one or
more of the following fields, namely:
(i) business;
(ii) administration of
companies;
(iii) financial markets;
(iv) financial products and
financial services;
(v) law;
(vi) economics;
(vii) accounting; and
(b) ought to be considered for
appointment as members of the Panel.
(4B) In nominating persons as members of the
Panel, the Minister must ensure so far as practicable that, at any time, at
least one member of the Panel is a person whose name has been given to the
Minister under subsection (4A).
(5) The performance of the functions or the
exercise of the powers of the Panel is not affected merely because its
membership is not as prescribed by subsections (1) and (3), unless a
continuous period of 3 months has elapsed since its membership ceased to be as
so prescribed.
173
President
The Governor‑General is to appoint as
President of the Panel a person who is, or is to be, a member.
174
Functions and powers of Panel
The Panel has the functions and powers
conferred on it by or under the corporations legislation (other than the
excluded provisions).
175
Term of office as member
(1) Subject to this Act, a person appointed
as a member holds office for such term of at most 5 years as is specified in
the instrument of appointment, but is eligible for re‑appointment.
176
Term of office as President
(1) Subject to this Act, a person appointed
as President holds office as such until:
(a) the end of his or her current term
as a member; or
(b) he or she otherwise stops being a
member;
whichever happens first.
(2) A person is not ineligible to be
appointed under section 173 merely because he or she has been so appointed
before.
177
Resignation
A person may resign as a member or
President by writing signed and delivered to the Governor‑General.
178
Termination of appointment
(1) The Governor‑General may terminate a
member’s appointment because of misbehaviour, or the physical or mental
incapacity, of the member or if the member:
(a) becomes bankrupt, applies to take
the benefit of a law for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or assigns remuneration or property for their
benefit; or
(b) is a full‑time member and engages
without the Minister’s consent in paid employment outside the duties of the
member’s office; or
(c) is a full‑time member and is
absent from duty, except on leave granted in accordance with section 180,
for 14 consecutive days, or for 28 days in any period of 12 months; or
(e) without reasonable excuse,
contravenes section 185.
(2) The Governor‑General may, with the
consent of a full‑time member who is an eligible employee, retire the member
from office on the ground of incapacity.
179
Remuneration and allowances
(1) A member must be paid such remuneration
as is determined by the Remuneration Tribunal but, if no determination of that
remuneration by the Tribunal is in operation, a member must be paid such
remuneration as the Minister determines in writing.
(2) A member must be paid such allowances as
the Minister determines in writing.
(3) This section has effect subject to the
Remuneration Tribunal Act 1973.
180
Leave of absence
(1) A full‑time member has such recreation
leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time member
leave of absence, other than recreation leave, on such terms and conditions as
to remuneration or otherwise as the Minister determines.
181
Other terms and conditions
A member holds office on such terms and
conditions (if any) in respect of matters not provided for by this Act as the
Minister determines in writing.
182
Acting President
(1) The Minister may appoint a member to act
as President:
(a) during a vacancy in the office of
President, whether or not an appointment has previously been made to the
office; or
(b) during any period, or during all
periods, when the President is absent from office.
(2) A person appointed under subsection (1)
to act during a vacancy must not continue for more than 12 months to act during
the vacancy.
183
Annual report
(1) The Panel must, as soon as practicable
after 30 June, and in any event before 31 October, in each year:
(a) prepare a report describing the
operations of the Panel during the year that ended on 30 June in that
year; and
(b) give to the Minister a copy of the
report.
(2) Where a copy of a report is given to the
Minister under subsection (1), he or she must cause a copy of the report
to be laid before each House of the Parliament within 15 sitting days of that
House after he or she receives the first‑mentioned copy.
Division 2—Conduct of Panel’s business
184
Constitution of Panel in relation to particular matters
(1) The Panel must, for the purposes of the
performance or exercise of its functions or powers in relation to a particular
matter, be constituted by 3 members in respect of whom a direction is in force
under this section in relation to that matter.
(2) The President may give directions about
the members (the sitting members) who are to constitute the Panel
for the purposes of performing or exercising its functions or powers in
relation to particular matters.
(3) A direction under subsection (2)
must:
(a) unless the sitting members include
the President—designate one of them as President; and
(b) in any case—designate one of the
sitting members as Deputy President;
of the Panel as constituted in relation to the matter
concerned.
(4) Where the President gives a direction as
to the sitting members, he or she may:
(a) at any time after the giving of
the direction and before the commencement of proceedings in relation to the
matter; or
(b) if one of those persons ceases to
be a member, or ceases to be available for the purposes of proceedings in relation
to a matter, during the proceedings or after the completion of the proceedings
but before the matter to which the proceedings relate is determined—at any time
after the person so ceases to be a member or to be available;
revoke the direction and give a further direction under subsection (2)
as to the additional members.
(4A) The regulations may make provision in
relation to the constitution of the Panel for the purposes of conducting a
review under section 657EA or 657EB of the Corporations Act.
(5) In this
section:
functions or powers means functions or powers
of the Panel under the corporations legislation (other than the excluded
provisions).
185
Disclosure of interests by members
(1) Where a member is, or is to be, a member
of the Panel as constituted for the purposes of the performance or exercise of
its functions or powers in relation to a particular matter and the member has
or acquires any interest, pecuniary or otherwise, that could conflict with the
proper performance of the member’s functions in relation to that matter:
(a) the member must disclose the
interest to the President and to the parties involved in the matter; and
(b) except with the President’s
consent, the member must not take part in the performance or exercise of the
Panel’s functions or powers in relation to the matter.
(1A) The President must not, under paragraph (1)(b),
consent to a member taking part in the performance or exercise of the Panel’s
functions or powers in relation to a matter unless the President believes, on
reasonable grounds, that the member’s interest is immaterial or indirect and
will not prevent the member from acting impartially in relation to the matter.
(2) Where the President becomes aware that a
member who is, or is to be, a member of the Panel as constituted for the
purposes of the performance or exercise of its functions or powers in relation
to a particular matter has in relation to that matter such an interest as is
mentioned in subsection (1), then:
(a) the President must revoke the
direction given under subsection 184(2) in relation to the matter unless the
President believes, on reasonable grounds, that the member’s interest is
immaterial or indirect and will not prevent the member from acting impartially
in relation to the matter; or
(b) if the President is not required
to revoke that direction under paragraph (a), the President must cause the
member’s interest to be disclosed to the parties involved in the matter.
(3) In this
section:
functions or powers means functions or powers
of the Panel under the corporations legislation (other than the excluded
provisions).
186
Application of Division 2 of Part 7
Division 2 of Part 7 applies
in relation to the Panel as if a reference in section 127 to ASIC included
a reference to the Panel.
Division 3—Panel proceedings
187
Interpretation
For the purposes of the performance or
exercise, in relation to a particular matter, of any of the Panel’s functions
and powers, this Division has effect as if:
(a) a reference to the Panel were a
reference to the Panel as constituted in relation to that matter; and
(b) a reference to a member were a
reference to a member of the Panel as so constituted; and
(c) if the President is not a member
of the Panel as so constituted—a reference to the President were a reference to
the member designated, in a direction in force under subsection 184(2), as the
President of the Panel as so constituted; and
(d) a reference to the Deputy
President were a reference to the member designated, in a direction in force
under subsection 184(2), as Deputy President of the Panel as so constituted.
188
Power to conduct proceedings
(1) The Panel may conduct proceedings for the
purposes of the performance or exercise of any of its functions and powers.
(2) The President may convene proceedings to
be held at a place and time he or she determines.
190
Panel may restrict publication of certain material
(1) Where, during Panel proceedings, the
Panel is satisfied that it is desirable to do so, the Panel may give directions
preventing or restricting the publication of submissions or evidence made or
given to, or of matters contained in documents lodged with, the Panel.
(2) In determining whether or not to give a
direction under subsection (1), the Panel must have regard to:
(a) whether submissions or evidence
made or given, or that may be made or given, or a matter that has arisen or may
arise, during the proceedings is of a confidential nature or relates to the
commission, or to the alleged or suspected commission, of an offence against an
Australian law; and
(b) any unfair prejudice to a person’s
reputation that would be likely to be caused unless the Panel exercises its
powers under this section; and
(c) whether it is in the public
interest that the Panel exercises its powers under this section; and
(d) any other relevant matter.
(3) In this section:
Panel proceedings includes a part of Panel
proceedings.
192
Power to summon witnesses and take evidence
(1) A member may, by written summons in the
prescribed form given to a person:
(a) require the person to appear
before the Panel at Panel proceedings to give evidence, to produce specified
documents, or to do both; and
(b) require the person to attend from
day to day unless excused, or released from further attendance, by a member.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 198).
(2) In Panel proceedings, the Panel may take
evidence on oath or affirmation, and for that purpose a member may:
(a) require a witness in the proceedings
to either take an oath or make an affirmation; and
(b) administer an oath or affirmation
to a witness in the proceedings.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 198).
(3) The oath or affirmation to be taken or
made by a person for the purposes of this section is an oath or affirmation
that the evidence the person will give will be true.
(4) The member presiding at Panel
proceedings:
(a) may require a witness in the
proceedings to answer a question put to the witness; and
(b) may require a person appearing in
the proceedings pursuant to a summons issued under this section to produce a
document specified in the summons.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 198).
(5) An offence under section 198
relating to subsection (1), (2) or (4) of this section is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(6) If:
(a) a person appears in Panel
proceedings pursuant to a summons issued under this section; and
(b) the summons was issued at a
person’s request;
the person appearing is entitled to be paid the prescribed
allowances and expenses (if any) by the person at whose request the summons was
issued.
(7) The Panel may pay such amount as it
thinks reasonable on account of the costs and expenses (if any) that a person
incurs in complying with a requirement made under this section.
193
Quorum
In Panel proceedings, 2 members form a
quorum.
194
Legal representation in proceedings before the Panel
A party to Panel proceedings may be
legally represented in the proceedings only with the leave of the Panel.
195
Procedure
(1) Subject to subsections (2) to (4), the Panel may determine the procedural rules to be followed in Panel
proceedings.
(2) Panel proceedings are to be conducted in
accordance with (in order of priority):
(a) the requirements of this Division;
and
(b) the requirements of the
regulations.
(3) Without
limiting paragraph (2)(b), the regulations may deal with:
(a) making submissions or giving
evidence in Panel proceedings; and
(b) the right (if any) to appear, or
be represented, in Panel proceedings; and
(c) the matters that the Panel is to
take into account when making a decision in the course of Panel proceedings.
(4) The rules of procedural fairness, to the
extent that they are not inconsistent with the provisions of this Act or the
regulations made under it, apply to Panel proceedings.
197
Protection of members etc.
(1) A member has, in the performance or
exercise of any of his or her functions and powers as a member in relation to
Panel proceedings, the same protection and immunity as a Justice of the High
Court.
(3) Subject to this Act, a person who is
required by a summons under section 192 to appear in Panel proceedings, or
a witness in Panel proceedings, has the same protection as a witness in a
proceeding in the High Court.
198
Non‑compliance with requirements made under section 192
(1) A person must not fail to comply with a
requirement made under subsection 192(1), (2) or (4).
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
(2) Subsection (1) does not apply to the
extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3) of the Criminal
Code.
199
False evidence
(1) A person must not:
(a) in a written submission given to
the Panel for the purposes of Panel proceedings; or
(b) while appearing before the Panel
in Panel proceedings;
give information or evidence that is false or misleading
in a material particular.
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
(2) It is a defence to a prosecution for a
contravention of subsection (1) if it is proved that the defendant, when
giving the information or evidence, believed on reasonable grounds that it was
true and not misleading.
Note: A defendant bears a legal burden in relation
to the matters in subsection (2), see section 13.4 of the Criminal
Code.
200
Contempt of Panel
(1) A person must not:
(a) engage in conduct that results in
the obstruction or hindering of the Panel or a member in the performance or
exercise of any of the Panel’s functions and powers; or
(b) engage in conduct that results in
the disruption of Panel proceedings.
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
(2) A person must not contravene a direction
given under subsection 190(1).
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
(2A) Subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2B) Subsection (2) does not apply to the
extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection, see subsection 13.3(3) of the Criminal
Code.
(3) An offence constituted by a contravention
of subsection (1) or (2) is punishable on summary conviction.
201
Powers of Court where non‑compliance with section 192
(1) This section applies where the Panel, as
constituted for the purposes of particular Panel proceedings, is satisfied that
a person has, without reasonable excuse, failed to comply with a requirement
made under section 192 in, or in relation to, those proceedings.
(2) The Panel as so constituted may by
writing certify the failure to the Court.
(3) If the Panel does so, the Court may
inquire into the case and may order the person to comply with the requirement
as specified in the order.
201A
Undertakings to the Panel
(1) In Panel proceedings, the Panel may
accept a written undertaking from a person affected, or likely to be affected,
by the proceedings about a matter relevant to the proceedings.
(2) The person may withdraw or vary the
undertaking at any time, but only with the consent of the Panel.
(3) If the Panel considers that the person
has breached any of the terms of the undertaking, the Panel may apply to the
Court for an order under subsection (4).
(4) If the Court is satisfied that the person
has breached a term of the undertaking, the Court may make all or any of the
following orders:
(a) an order directing the person to
comply with that term of the undertaking;
(b) any order that the Court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(c) any other order that the Court
considers appropriate.
Part 11—Companies Auditors and Liquidators Disciplinary Board
Division 1—Constitution of Disciplinary Board
203
Membership of Disciplinary Board
(1) The Disciplinary Board consists of:
(a) a Chairperson; and
(b) a Deputy Chairperson; and
(c) 6 members that the Minister
selects who are eligible under subsection (1B) for appointment as a member;
and
(e) 6 members that the Minister
selects who are eligible under subsection (2A) for appointment as a
member.
(1A) The accounting members are
the members appointed under paragraph (1)(c), and the business
members are the members appointed under paragraph (1)(e).
(1B) A person is eligible under this subsection
for appointment as an accounting member if the person:
(a) is resident in Australia; and
(b) is a member of:
(i) a professional
accounting body; or
(ii) any other body
prescribed by the regulations for the purposes of this subparagraph.
(2) A person is not eligible for appointment
as Chairperson or Deputy Chairperson unless he or she is enrolled as a
barrister, as a solicitor, as a barrister and solicitor or as a legal
practitioner of the High Court, of any federal court or of the Supreme Court of
a State or Territory and has been so enrolled for a period of at least 5 years.
(2A) A person is eligible under this subsection
for appointment as a business member if:
(a) the person is resident in Australia; and
(b) the Minister is satisfied that the
person is suitable for the appointment as a representative of the business
community because of the person’s qualifications in, knowledge of or experience
in one or more of the following fields:
(i) business or commerce;
(ii) the administration of
companies;
(iii) financial markets;
(iv) financial products and
financial services;
(v) economics;
(vi) law.
(3) The Chairperson, the Deputy Chairperson
and each of the other members are to be appointed by the Minister on a part‑time
basis.
204
Functions and powers of Disciplinary Board
The Disciplinary Board has the functions
and powers conferred on it by or under the corporations legislation (other than
the excluded provisions).
205
Term of office
Subject to this Act, the Chairperson,
the Deputy Chairperson and each other member holds office for such term of at
most 3 years as is specified in the instrument of his or her appointment, but
is eligible for re‑appointment.
206
Resignation from office
A person may resign his or her office as
Chairperson, Deputy Chairperson or member by writing signed and delivered to
the Minister.
207
Termination of appointment
(1) The Minister may terminate the
appointment of the Chairperson, the Deputy Chairperson or any other member
because of misbehaviour or physical incapacity.
(2) If the Chairperson, the Deputy
Chairperson or any other member:
(a) is absent, without leave of the
Disciplinary Board, from 3 consecutive meetings of the Board; or
(b) becomes bankrupt, applies to take
the benefit of a law for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or assigns remuneration or property for their
benefit; or
(c) is convicted in Australia of an offence punishable by imprisonment for 12 months or longer; or
(d) becomes of unsound mind; or
(e) fails, without reasonable excuse,
to comply with section 211;
the Minister must terminate his or her appointment.
208
Acting Chairperson
(1) The Deputy Chairperson is to act as Chairperson:
(a) during a vacancy in the office of
Chairperson (whether or not an appointment has previously been made to the
office); and
(b) during all periods when the
Chairperson is absent from duty or from Australia or is, for any other reason,
unable to perform the functions of the office.
This subsection does not, however, operate to substitute
the Deputy Chairperson for the Chairperson as a member of a particular Panel of
the Disciplinary Board.
(2) The Minister may appoint a person who is
eligible for appointment as Chairperson to act as Chairperson:
(a) during a vacancy in the office of
Chairperson (whether or not an appointment has previously been made to the
office); or
(b) during any period, or during all
periods, when the Chairperson is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
(3) A person appointed under subsection (2)
may only act as the Chairperson during a period if:
(a) there is a vacancy in the office
of Deputy Chairperson during that period; or
(b) the Deputy Chairperson is, for any
reason, unable to perform the duties of the office of Chairperson during that
period.
(4) Anything done by, or in relation to, a
person purporting to act under subsection (1) or under an appointment
under subsection (2) is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
208A
Acting Deputy Chairperson
(1) The Minister may appoint a person who is
eligible for appointment as Deputy Chairperson to act as Deputy Chairperson:
(a) during a vacancy in the office of
Deputy Chairperson (whether or not an appointment has previously been made to
the office); or
(b) during any period, or during all
periods, when the Deputy Chairperson is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office; or
(c) during any period during which the
Deputy Chairperson is acting as Chairperson under subsection 208(1).
(2) Anything done by, or in relation to, a
person purporting to act under an appointment under subsection (1) is not
invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
210
Meetings of the Disciplinary Board
(1A) This section has effect subject to section 210B
(meetings of Panel of the Disciplinary Board).
(1) The Chairperson must convene such
meetings of the Disciplinary Board as he or she considers necessary for the
performance of its functions.
(2) The Chairperson must preside at all
meetings of the Disciplinary Board.
(3) At a meeting of the Disciplinary Board,
the Chairperson and any 5 other members (of which the Deputy Chairperson may be
one) constitute a quorum.
(4) A question arising at a meeting of the
Disciplinary Board must be determined by a majority of votes of the persons
present and voting.
(5) At a meeting, the Chairperson has a
deliberative vote and, in the event of an equality of votes, also has a casting
vote.
(6) Subject to this section, the procedures
for convening meetings of the Disciplinary Board and for the conduct of
business by the Disciplinary Board must be as the Disciplinary Board
determines.
210A
Panel to be constituted to deal with application
(1) The Disciplinary Board’s functions and
powers in relation to the following matters:
(a) an application to the Disciplinary
Board by ASIC or APRA for a person to be dealt with under section 1292 of
the Corporations Act;
(b) an application by a person to the
Disciplinary Board under section 1295 of the Corporations Act for the
termination of the suspension of the person’s registration as an auditor or
liquidator;
(c) determining whether the
Disciplinary Board should, of its own motion, terminate the suspension of a
person’s registration as an auditor or liquidator under section 1295 of
the Corporations Act;
are to be performed and exercised by a Panel of the
Disciplinary Board constituted under subsection (2).
(2) The Chairperson is to determine, in
writing, the members of the Disciplinary Board who are to constitute the Panel
of the Disciplinary Board that is to hear the matter.
(3) Without limiting subsection (2), the
Chairperson may determine that a Panel of the Disciplinary Board constituted in
a particular manner is to hear matters of a particular kind, or that satisfy
particular criteria, specified in the determination.
(4) The Panel is to be constituted as either:
(a) a 5 person Panel consisting of:
(i) the Chairperson or
Deputy Chairperson; and
(ii) 2 accounting members;
and
(iii) 2 business members; or
(b) a 3 person Panel consisting of:
(i) the Chairperson or
Deputy Chairperson; and
(ii) 1 accounting member;
and
(iii) 1 business member.
In relation to the Panel, the Chairperson or the Deputy
Chairperson is the Panel Chairperson.
(5) If the Chairperson is satisfied that it
is practicable and appropriate to do so, the Chairperson is to constitute the
Panel so that it is a 5 person Panel.
(6) This subsection applies if:
(a) a hearing in relation to a
particular matter has been commenced or completed by a Panel of the
Disciplinary Board; and
(b) before the matter to which the
proceeding relates has been determined, one of the members constituting the
Panel has:
(i) ceased to be a member;
or
(ii) ceased to be available
as a member of the Panel.
(7) If subsection (6) applies:
(a) the hearing and determination, or
the determination, of the proceedings may be completed by the Panel constituted
by the remaining member or members of the Panel if the parties to the
proceedings agree; and
(b) otherwise the matter must be
reheard by a new Panel constituted by the Chairperson under subsection (2).
(8) If a matter is reheard under paragraph (7)(b),
the new Panel may, for the purposes of performing or exercising the
Disciplinary Board’s functions or powers in relation to that matter, have
regard to any record of the proceedings before the Panel as previously
constituted for the purposes of hearing that matter.
210B
Meetings of Panel of the Disciplinary Board
(1) The Panel
Chairperson of a Panel of the Disciplinary Board must:
(a) convene such meetings of the Panel
as the Panel Chairperson considers necessary for the performance of the Panel’s
functions; and
(b) preside at all meetings of the
Panel.
(2) At a meeting of a 5 person Panel of the
Board, a quorum is constituted by:
(a) the Panel Chairperson; and
(b) an accounting member; and
(c) a business member.
This subsection has effect subject to subsection 210A(7).
(3) At a meeting of a 3 person Panel of the
Board, a quorum is constituted by:
(a) the Panel Chairperson; and
(b) the accounting member.
This subsection has effect subject to subsection 210A(7).
(4) A question arising at a meeting of a
Panel of the Disciplinary Board must be determined by a majority of the votes
of the members of the Panel present and voting.
(5) At a meeting of a Panel of the
Disciplinary Board, the Panel Chairperson has a deliberative vote and, in the
event of an equality of votes, also has a casting vote.
(6) Subject to this Part, the procedures for
convening meetings of a Panel of the Disciplinary Board and for the conduct of
business by a Panel of the Disciplinary Board must be as the Disciplinary Board
determines.
211
Disclosure of interests
(2) A member who has a direct or indirect
pecuniary interest in a matter being considered or about to be considered by
the Disciplinary Board or a Panel of the Disciplinary Board must, as soon as
possible after the relevant facts have come to his or her knowledge, disclose
the nature of his or her interest at a meeting of the Disciplinary Board or the
Panel.
(3) A disclosure under subsection (2)
must be recorded in the minutes of the meeting of the Disciplinary Board or the
Panel and the member must not, unless the Minister or the Disciplinary Board or
the Panel otherwise determines:
(a) be present during any deliberation
of the Disciplinary Board or the Panel with respect to that matter; or
(b) take part in any decision of the
Disciplinary Board or the Panel with respect to that matter.
(4) For the purpose of the making of a
determination by the Disciplinary Board or the Panel under subsection (3)
in relation to a member who has made a disclosure under subsection (2), a
member who has a direct or indirect pecuniary interest in the matter to which
the disclosure relates must not:
(a) be present during any deliberation
of the Disciplinary Board or the Panel for the purpose of making the
determination; or
(b) take part in the making by the
Disciplinary Board or the Panel of the determination.
212
Remuneration and allowances
(2) A member must be paid such remuneration
as is determined by the Remuneration Tribunal but, if no determination of that
remuneration by the Tribunal is in operation, a member must be paid such remuneration
as the Minister determines in writing.
(3) A member must be paid such allowances as
the Minister determines in writing.
(4) This section has effect subject to the
Remuneration Tribunal Act 1973.
213
Confidentiality
(1) The Disciplinary Board must take all
reasonable measures to protect from unauthorised use or disclosure information
given to it in confidence in or in connection with the performance of its
functions or the exercise of its powers under the corporations legislation
(other than the excluded provisions).
(1A) For the purposes of this section,
information given to a Panel of the Disciplinary Board is taken to be given to
the Disciplinary Board.
(2) For the
purposes of subsection (1), the disclosure of information:
(a) as required or permitted by a law
of the Commonwealth or a prescribed law of a State or Territory; or
(aa) to the FRC for the purposes of its
performance of its functions under the corporations legislation; or
(ab) in order to enable or assist:
(i) a professional accounting
body; or
(ii) another body
prescribed by the regulations for the purposes of this paragraph;
to perform its disciplinary
function in relation to its members; or
(b) in order to enable or assist an
authority or person in:
(i) a State or Territory;
or
(ii) a country outside Australia and the external Territories;
to perform or exercise a
function or power that corresponds, or is analogous, to any of the Disciplinary
Board’s, or ASIC’s functions and powers;
is taken to be authorised disclosure of the information.
214
Annual report
(1) The Disciplinary Board must, as soon as
practicable after 30 June, and in any event before 31 October, in
each year:
(a) prepare a report describing the
operations of the Disciplinary Board during the year that ended on 30 June
in that year; and
(b) give to the Minister a copy of the
report.
(2) Where a copy of a report is given to the
Minister under subsection (1), he or she must cause a copy of the report
to be laid before each House of the Parliament within 15 sitting days of that
House after he or she receives the first‑mentioned copy.
Division 2—Hearings by Disciplinary Board
215
Definition
In this Division:
hearing means a hearing held by a Panel of
the Disciplinary Board under this Division.
216 Hearings
(1) A Panel of the Disciplinary Board
constituted to hear a matter may, at a meeting of the Panel, hold a hearing for
the purpose of performing or exercising the Disciplinary Board’s functions or
powers in relation to that matter.
(2) Subject to subsection (3), hearings
must take place in private.
(3) If a person (other than ASIC or APRA) who
is entitled to be given an opportunity to appear at a hearing requests that the
hearing take place in public, the hearing must, subject to any directions of
the Panel under subsection (5), take place in public.
(4) The Panel may give directions as to the
persons who may be present at a hearing that is to take place in private.
(5) Where, at a hearing that is taking place
in public at the request of a person, the Panel is satisfied that it is
desirable to do so by reason of the confidential nature of any evidence or
matter or in order to protect the interests of any other person, the Panel may:
(a) direct that a part of the hearing
take place in private and give directions as to the persons who may be present;
or
(b) give directions preventing or
restricting the publication of evidence given before the Panel or of matters
contained in documents lodged with or produced to the Panel.
(6) Nothing in a direction given by the Panel
under subsection (4) or paragraph (5)(a) prevents the presence at a
hearing of:
(a) a person representing ASIC or APRA
pursuant to subsection 218(3); or
(b) a person who is entitled to be
given an opportunity to appear at the hearing; or
(c) a person representing, pursuant to
subsection 218(3), a person referred to in paragraph (b); or
(d) a person representing, pursuant to
subsection 218(3), a person who, by reason of a direction given by the Panel
under subsection (4), or paragraph (5)(a), of this section is
entitled to be present at the hearing.
(7) Where the Panel directs that a hearing or
part of a hearing take place in private, a person (other than the Panel
Chairperson, a member of the Panel or a member of the staff of the Disciplinary
Board approved by the Panel) must not be present at the hearing unless he or
she is entitled to be present by virtue of the direction or by virtue of subsection (6).
Penalty: 10 penalty units or imprisonment for 3 months.
(7A) Subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(8) Where the Panel is required to give a
person an opportunity to appear at a hearing, the Panel must appoint a day,
time and place for the hearing and cause notice in writing of the day, time and
place to be given to the person.
(9) A person who is entitled to be given an
opportunity to appear at a hearing and who does not wish to appear at the
hearing may, before the day of the hearing, lodge with the Disciplinary Board
in writing any submissions that he, she or it wishes the Panel to take into
account in relation to the matter.
(10) The Panel must take into account:
(a) a submission made to or evidence
adduced before the Panel; and
(b) a submission lodged with the
Disciplinary Board in relation to the matter to which the hearing relates;
when making any decision on the matter to which the
submission or evidence relates.
217
Power to summon witnesses and take evidence
(1) The Panel Chairperson or a member of the
Panel may summon a person to appear at a hearing to give evidence and to
produce such documents (if any) as are referred to in the summons, being
documents relating to the matters that are the subject of the hearing.
(2) The Panel may, at a hearing, take
evidence on oath or affirmation and for that purpose the Panel Chairperson may:
(a) require a person appearing at the
hearing to give evidence to either take an oath or make an affirmation; and
(b) administer an oath or affirmation
to a person so appearing at the hearing.
(3) The oath or affirmation to be taken or
made by a person for the purposes of subsection (2) is an oath or
affirmation that the evidence he or she will give will be true.
218
Proceedings at hearings
(1) At a hearing:
(a) the proceedings must be conducted
with as little formality and technicality, and with as much expedition, as the
requirements of the corporations legislation (other than the excluded
provisions) and a proper consideration of the matters before the Panel permit;
and
(b) the Panel is not bound by the
rules of evidence; and
(c) the Panel may, on such conditions
as it thinks fit, permit a person to intervene in the proceedings.
(2) The Panel must observe the rules of
natural justice at and in connection with a hearing.
(3) At a hearing:
(a) ASIC or APRA may be represented
by:
(i) a staff member, or a
member or acting member, of ASIC or APRA; or
(ii) a person authorised by
ASIC or APRA for the purpose; and
(b) a natural person may appear in
person or may be represented by an employee of the person approved by the
Panel; and
(c) a body corporate (other than ASIC
or APRA) may be represented by an employee, or by a director or other officer,
of the body corporate approved by the Panel; and
(d) an unincorporated association of
persons or a member of an unincorporated association of persons may be
represented by a member, officer or employee of the association approved by the
Panel; and
(e) any person may be represented by a
barrister or solicitor of the Supreme Court of a State or Territory or of the
High Court.
(4) A person who attends at a hearing
pursuant to a summons issued under subsection 217(1) is entitled to be paid:
(a) in a case where the summons was
issued at another person’s request—by that other person; or
(b) in any other case—by the
Disciplinary Board;
such allowances and expenses as are provided for by the
regulations.
(5) The Panel may permit a person appearing
as a witness at a hearing to give evidence by tendering, and, if the Panel thinks
fit, verifying by oath, a written statement.
219
Failure of witnesses to attend and answer questions
(1) A person served, as prescribed, with a
summons to appear as a witness at a hearing must not:
(a) fail to attend as required by the
summons; or
(b) fail to attend from day to day
unless excused, or released from further attendance, by the Panel Chairperson.
(2) A person appearing as a witness at a
hearing must not:
(a) when required pursuant to
subsection 217(2) to either take an oath or make an affirmation—refuse or fail
to comply with the requirement; or
(b) refuse or fail to answer a
question that he or she is required to answer by the Panel Chairperson; or
(c) refuse or fail to produce a
document that he or she was required to produce by a summons under subsection
217(1) served on him or her as prescribed.
(2A) Subsections (1) and (2) do not apply
to the extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matters in this subsection, see subsection 13.3(3) of the Criminal
Code.
(3) A person must not, at a hearing, give
evidence that is false or misleading.
(4) A person must not contravene subsection (1),
(2) or (3).
Penalty: 10 penalty units or imprisonment for 3 months.
(5) A person who contravenes subsection (3)
is not guilty of an offence against subsection (4) if it is proved that he
or she, when giving the evidence, believed on reasonable grounds that it was
true and not misleading.
(6) Where the Panel is satisfied that:
(a) a person served, as prescribed,
with a summons to appear as a witness at a hearing has, without reasonable
excuse, failed to attend as required by paragraph (1)(a) or (b); or
(b) a person appearing as a witness at
a hearing has, without reasonable excuse:
(i) when required pursuant
to subsection 217(2) either to take an oath or make an affirmation; or
(ii) when required by the
Panel Chairperson to answer a question; or
(iii) when required to
produce a document by a summons under subsection 217(1) served on him or her as
prescribed;
refused or failed to comply with
the requirement;
the Panel Chairperson may, by instrument in writing,
certify the failure to attend or the refusal or failure to comply with the
requirement, as the case may be, to the Court.
(7) Where a certificate is given under subsection (6),
the Court may inquire into the case and, if it is satisfied that the person to
whom the certificate relates has, without reasonable excuse, failed to attend
or refused or failed to comply with a requirement as mentioned in the
certificate:
(a) may order the person to attend or
to comply with the requirement at a hearing to be held at a time and place
specified in the order; or
(b) may punish the person in the same
manner as if he or she had been guilty of contempt of the Court and, if it
thinks fit, also make an order under paragraph (a).
220
Contempt of Disciplinary Board
(1) A person must not:
(a) engage in conduct that results in
the obstruction or hindering of a Panel of the Disciplinary Board, or a member
of the Panel, in the performance or exercise of any of the Disciplinary Board’s
functions or powers; or
(b) engage in conduct that results in
the disruption of a hearing.
Penalty: 10 penalty units or imprisonment for 3 months.
(2) A person must not contravene a direction
given under paragraph 216(5)(b).
Penalty: 10 penalty units or imprisonment for 3 months.
(2A) Subsection (2) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2B) Subsection (2) does not apply to the
extent that the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matters in this subsection, see subsection 13.3(3) of the Criminal
Code.
(3) An offence constituted by a contravention
of subsection (1) or (2) is punishable on summary conviction.
221
Protection of members etc.
(1) The Panel Chairperson or a member of the
Panel has, in the performance of his or her functions or the exercise of his or
her powers as the Panel Chairperson or a member of the Panel in relation to a
hearing, the same protection and immunity as a Justice of the High Court.
(1A) The Chairperson of the Board has, in the
performance of his or her functions or the exercise of his or her powers in
relation to a conference under section 1294A of the Corporations Act, the
same protection and immunity as a Justice of the High Court.
(2) A barrister, solicitor or other person
appearing on behalf of a person at a hearing has the same protection and
immunity as a barrister has in appearing for a party in proceedings in the High
Court.
(2A) A barrister, solicitor or other person
appearing on behalf of a person at a conference under section 1294A of the
Corporations Act has the same protection and immunity as a barrister has in
appearing for a party in proceedings in the High Court.
(3) Subject to this Act, a person summoned to
attend or appearing as a witness at a hearing has the same protection as a
witness in proceedings in the High Court.
222
Hearings taken to be judicial proceedings
A hearing is, for the purposes of Part III
of the Crimes Act 1914, taken to be a judicial proceeding.
223
Costs
(1) Where:
(a) the Panel holds a hearing in
relation to a person in accordance with subsection 1294(1) of the Corporations
Act; and
(b) the Panel cancels or suspends the
registration of the person as an auditor, as a liquidator or as a liquidator of
a specified body corporate, or deals with the person:
(i) by admonishing or
reprimanding the person; or
(ii) by requiring the
person to give an undertaking to engage in, or to refrain from engaging in,
specified conduct;
the Panel may require the person to pay an amount
specified by the Panel, being all or part of:
(c) the costs of and incidental to the
hearing; or
(d) the costs of ASIC or APRA in
relation to the hearing; or
(e) the costs mentioned in paragraph (c)
and the costs mentioned in paragraph (d).
(2) Where:
(a) the Panel holds a hearing in
relation to a person in accordance with subsection 1294(1) of the Corporations
Act; and
(b) the Panel refuses to make an order
cancelling or suspending the registration of the person as an auditor, as a
liquidator or as a liquidator of a specified body corporate, as the case
requires, and does not deal with the person in any of the ways mentioned in subparagraphs (1)(b)(i)
and (ii);
the Panel may require ASIC or APRA to pay an amount
specified by the Panel, being all or part of:
(c) the costs of and incidental to the
hearing; or
(d) the costs of the person in
relation to the hearing; or
(e) the costs mentioned in paragraph (c)
and the costs mentioned in paragraph (d).
(3) Where:
(a) under subsection (1), the
Panel requires a person to pay all or part of the costs of and incidental to a
hearing held by the Panel in relation to the person (whether or not the Panel
also requires the person to pay all or part of ASIC’s costs in relation to the
hearing); or
(b) under subsection (2), the
Panel requires ASIC or APRA to pay all or part of the costs of and incidental
to a hearing held by the Panel in relation to a person (whether or not the
Panel also requires ASIC or APRA to pay all or part of the costs of the person
in relation to the hearing);
the amount of the costs of and incidental to the hearing
so required to be paid by the first‑mentioned person or by ASIC or APRA, as the
case may be, may be recovered in a court of competent jurisdiction as a debt
due to the Commonwealth.
(4) Where, under subsection (1), the
Panel requires a person to pay all or part of ASIC’s costs or APRA’s costs in
relation to a hearing held by the Panel in relation to the person (whether or
not the Panel also requires the person to pay all or part of the costs of and
incidental to the hearing), the amount of ASIC’s costs or APRA’s costs so
required to be paid by the person may be recovered in a court of competent
jurisdiction as a debt due to the Commonwealth.
(5) Where, under subsection (2), the
Panel requires ASIC or APRA to pay all or part of the costs of a person in
relation to a hearing held by the Panel in relation to the person (whether or
not the Panel also requires ASIC or APRA to pay all or part of the costs of and
incidental to the hearing), the amount of the costs of the person so required
to be paid by ASIC or APRA may be recovered in a court of competent
jurisdiction as a debt due to the person.
Part 12—The Australian financial reporting system
224 Main objects of this Part
The main objects of this Part are:
(a) to facilitate the development of
accounting standards that require the provision of financial information that:
(i) allows users to make
and evaluate decisions about allocating scarce resources; and
(ii) assists directors to
discharge their obligations in relation to financial reporting; and
(iii) is relevant to
assessing performance, financial position, financing and investment; and
(iv) is relevant and
reliable; and
(v) facilitates
comparability; and
(vi) is readily
understandable; and
(aa) to facilitate the development of
auditing and assurance standards and related guidance materials that:
(i) provide Australian
auditors with relevant and comprehensive guidance in forming an opinion about,
and reporting on, whether financial reports comply with the requirements of the
Corporations Act; and
(ii) require the preparation
of auditors’ reports that are reliable and readily understandable by the users
of the financial reports to which they relate; and
(b) to facilitate the Australian
economy by:
(i) reducing the cost of
capital; and
(ii) enabling Australian
entities to compete effectively overseas; and
(iii) having accounting and
auditing standards that are clearly stated and easy to understand; and
(c) to maintain investor confidence in
the Australian economy (including its capital markets).
Division 1—The financial reporting system
Subdivision A—The Financial Reporting Council
225
Functions and powers of the Financial Reporting Council
Functions generally
(1) The FRC functions are:
(a) to provide broad oversight of the
processes for setting accounting standards in Australia; and
(b) to provide broad oversight of the
processes for setting auditing standards in Australia; and
(c) to monitor the effectiveness of
auditor independence requirements in Australia; and
(d) to give the Minister reports and
advice about the matters referred to in paragraphs (a), (b) and (c); and
(e) the functions specified in subsections (2)
(specific accounting standards functions), (2A) (specific auditing standards
functions) and (2B) (specific auditor independence functions); and
(f) to establish appropriate
consultative mechanisms; and
(g) to advance and promote the main
objects of this Part; and
(h) any other functions that the
Minister confers on the FRC by written notice to the FRC Chair.
Note: The FRC was established by subsection 225(1)
of the Australian Securities and Investments Commission Act 1989 and is
continued in existence by section 261 of this Act.
Specific accounting standards functions
(2) The FRC functions include:
(a) appointing the members of the AASB
(other than the Chair); and
(b) giving the AASB advice or feedback
on the AASB’s:
(i) priorities; and
(ii) business plans; and
(iii) procedures; and
(ba) giving the Office of the AASB
advice or feedback on the Office’s:
(i) budgets; and
(ii) staffing arrangements
(including level, structure and composition of staffing); and
(c) determining the AASB’s broad
strategic direction; and
(e) monitoring the development of
international accounting standards and the accounting standards that apply in
major international financial centres; and
(f) furthering the development of a
single set of accounting standards for world‑wide use with appropriate regard
to international developments; and
(g) promoting the continued adoption
of international best practice accounting standards in the Australian
accounting standard setting processes if doing so would be in the best
interests of both the private and public sectors in the Australian economy; and
(h) monitoring:
(i) the operation of
accounting standards to assess their continued relevance and their
effectiveness in achieving their objectives in respect of both the private and
public sectors of the Australian economy; and
(ii) the effectiveness of
the consultative arrangements used by the AASB.
Specific auditing standards functions
(2A) The FRC functions include:
(a) appointing the members of the
AUASB (other than the Chair); and
(b) giving the AUASB advice or
feedback on the AUASB’s:
(i) priorities; and
(ii) business plans; and
(iii) procedures; and
(ba) giving
the Office of the AUASB advice or feedback on the Office’s:
(i) budgets; and
(ii) staffing arrangements
(including level, structure and composition of staffing); and
(c) determining the AUASB’s broad
strategic direction; and
(e) monitoring the development of
international auditing standards and the auditing standards that apply in major
international financial centres; and
(f) furthering the development of a
single set of auditing standards for world‑wide use with appropriate regard to
international developments; and
(g) promoting the continued adoption
of international best practice auditing standards in the Australian auditing
standard setting processes if doing so would be in the best interests of both
the private and public sectors in the Australian economy; and
(h) monitoring:
(i) the operation of
auditing standards to assess their continued relevance and their effectiveness
in achieving their objectives in respect of both the private and public sectors
of the Australian economy; and
(ii) the effectiveness of
the consultative arrangements used by the AUASB.
Specific auditor independence functions
(2B) The FRC functions include:
(a) monitoring and assessing the
nature and overall adequacy of:
(i) the systems and
processes used by Australian auditors to ensure compliance with auditor
independence requirements; and
(ii) the systems and
processes used by professional accounting bodies for planning and performing
quality assurance reviews of audit work undertaken by Australian auditors to
the extent to which those reviews relate to auditor independence requirements;
and
(iii) the action that
Australian auditors who have been subject to such quality assurance reviews
have taken in response to the reports prepared as a result of those reviews;
and
(iv) the action taken by
professional accounting bodies to ensure that Australian auditors who have been
subject to such quality assurance reviews respond appropriately to the reports
prepared as a result of those reviews; and
(v) the investigation and
disciplinary procedures of professional accounting bodies as those procedures
apply to Australian auditors; and
(b) monitoring the overall compliance
by companies, registered schemes and disclosing entities with the audit‑related
disclosure requirements of the Corporations Act and the accounting standards;
and
(c) giving the Minister reports and
advice about the matters referred to in paragraphs (a) and (b); and
(d) giving professional accounting
bodies reports and advice about the matters referred to in subparagraphs (a)(ii),
(iii), (iv) and (v); and
(e) monitoring international
developments in auditor independence, assessing the adequacy of the Australian
auditor independence requirements provided for in:
(i) the Corporations Act;
and
(ii) codes of professional
conduct;
in the light of those
developments and giving the Minister, and professional accounting bodies,
reports and advice on any additional measures needed to enhance the
independence of Australian auditors; and
(f) promoting, and monitoring the
adequacy of, the teaching of professional and business ethics by, or on behalf
of, professional accounting bodies to the extent to which the teaching of those
subjects relates to auditor independence.
Powers
(3) As well as any other powers conferred by
this Act, the FRC has power to do all things necessary or convenient to be done
for or in connection with the performance of its functions.
(4) Without limiting subsection (3), the
FRC may establish committees and advisory groups.
Restriction on powers
(5) The FRC does not have power to direct the
AASB in relation to the development, or making, of a particular standard.
(6) The FRC does not have power to veto a
standard made, formulated or recommended by the AASB.
(7) The FRC does not have power to direct the
AUASB in relation to the development, or making, of a particular auditing
standard.
(8) The FRC does not have power to veto a
standard made, formulated or recommended by the AUASB.
225A
Financial Reporting Council’s information gathering powers
(1) The Chair of the FRC, acting on behalf of
the FRC, may give a professional accounting body a written notice requiring the
body to give the FRC:
(a) a copy of:
(i) a code of professional
conduct of the body; or
(ii) a proposed code of
professional conduct of the body; or
(iii) a proposed amendment
of a code of professional conduct of the body; or
(b) information about the body’s
planning or performance of quality assurance reviews; or
(c) details of the body’s
investigation or disciplinary procedures.
(2) The notice may require the body to give
the FRC information under paragraph (1)(b) or (c) only to the extent to
which the information relates to audit work done by Australian auditors.
(3) A professional accounting body has
qualified privilege in respect of a disclosure made by the body in response to
a notice given to the body under subsection (1).
(4) A person has qualified privilege in
respect of a disclosure made by the person, on behalf of a professional
accounting body, in response to a notice given to the professional body under subsection (1).
(5) The Chair of the FRC, acting on behalf of
the FRC, may give an Australian auditor a written notice requiring the auditor
to give the FRC information about, or documents or copies of documents that
relate to, one or more of the following:
(a) one or more audits conducted by
the auditor or in which the auditor participated;
(b) the measures the auditor adopted,
or the procedures the auditor put in place, to ensure that the auditor was, and
continues to be, independent of entities it audits;
(c) any other matter prescribed by the
regulations for the purposes of this paragraph.
Without limiting this, the documents may be audit working
papers.
Note: A person responding to a notice under this
subsection has qualified privilege in respect of the response (see section 1289
of the Corporations Act).
(6) Without limiting subsection (5), the
notice:
(a) may require the Australian auditor
to give the FRC information or a document even if doing so would involve a
breach of an obligation of confidentiality that the auditor owes an audited
body; and
(b) may require that a copy of a
document to be given to the FRC must be certified by a particular person or a
person holding a particular office or position.
(7) The notice under subsection (1) or
(5) must specify:
(a) the information or documents the
professional accounting body or Australian auditor must give; and
(b) the period within which the body
or auditor must give the information or documents.
The period specified under paragraph (b) must be not
less than 28 days after the day on which the notice is given.
(8) The Chair of the FRC, acting on behalf of
the FRC, may, by written notice to the professional accounting body or
Australian auditor, extend the period within which the body or auditor must
give the information or documents.
(9) A person commits an offence if:
(a) the Chair of the FRC gives the
person notice under subsection (1) or (5); and
(b) the person does not comply with
the notice.
Penalty: 10 penalty units.
(10) An offence against subsection (9) is
an offence of strict liability.
Note: For strict liability see section 6.1
of the Criminal Code.
(11) A person commits an offence if:
(a) the Chair of the FRC gives a firm
a notice under subsection (5); and
(b) the person is a member of the firm
when the notice is given; and
(c) the notice is not complied with.
Penalty: 10 penalty units.
(12) An offence against subsection (11) is
an offence of strict liability.
Note: For strict liability see section 6.1
of the Criminal Code.
(13) A member of a firm does not commit an
offence at a particular time because of a contravention of subsection (11)
if the member either:
(a) does not know at that time that
the Chair of the FRC has given the firm the notice under subsection (5);
or
(b) knows that the Chair of the FRC
has given the firm the notice under subsection (5) at that time but takes
all reasonable steps to ensure that the notice is complied with as soon as
possible after the member becomes aware of those circumstances.
Note: A defendant bears an evidential burden in
relation to the matters in this subsection, see subsection 13.3(3) of the Criminal
Code.
Subdivision B—The Australian Accounting Standards Board and the Office of
the Australian Accounting Standards Board
226
The Office of the Australian Accounting Standards Board
(1) The Office of the Australian Accounting
Standards Board is established.
(2) The Office of the AASB consists of:
(a) the Chair of the AASB; and
(b) the other members of the AASB; and
(c) the staff of the Office of the
AASB.
Note: The Office of the AASB does not have a legal
identity separate from the Commonwealth.
226A
Office of the AASB’s functions and powers
(1) The Office of the AASB has the following
functions:
(a) to make such arrangements as are
necessary to give effect to the decisions of the AASB;
(b) to provide technical services to
the AASB;
(c) to provide administrative services
to the AASB;
(d) to provide information to the
AASB;
(e) to advise the AASB about the
performance of any of the AASB’s functions;
(f) to make resources and facilities
(including meeting facilities, communication facilities and secretariat
services) available to the AASB;
(g) such other functions as are
conferred on the Office by this Act;
(h) to do anything incidental to, or
conducive to, the performance of any of the above functions.
(2) The Office of the AASB has power to:
(a) establish committees, advisory
panels and consultative groups; and
(b) receive money contributed towards
its or the AASB’s operating costs; and
(c) do anything else that is necessary
for, or reasonably incidental to, the performance of its functions.
227
AASB’s functions and powers
Functions
(1) The functions of the AASB are:
(a) to develop a conceptual framework,
not having the force of an accounting standard, for the purpose of evaluating
proposed accounting standards and international standards; and
(b) to make accounting standards under
section 334 of the Corporations Act for the purposes of the corporations
legislation (other than the excluded provisions); and
(c) to formulate accounting standards
for other purposes; and
(d) to participate in and contribute
to the development of a single set of accounting standards for world‑wide use; and
(e) to advance and promote the main
objects of this Part.
Note 1: The AASB was established by subsection 226(1)
of the Australian Securities and Investments Commission Act 1989 and is
continued in existence by section 261 of this Act.
Note 2: The standards made under paragraph (b) are
given legal effect by the Corporations Act. The standards formulated under
paragraph (c) do not have legal effect under the Corporations Act itself
but may be applied or adopted by some other authority.
Note 3: See section 224 and sections 228 to
233 for the framework within which the AASB is to formulate and make accounting
standards.
(2) In carrying out its functions under paragraphs (1)(a)
and (d), the AASB must have regard to the interests of Australian corporations
which raise or propose to raise capital in major international financial
centres.
Power to establish committees etc.
(3) The AASB has power to establish
committees, advisory panels and consultative groups.
Manner of making and formulating standards
(4) Without limiting paragraph (1)(b) or
(c), the AASB may make or formulate an accounting standard by issuing the text
of an international accounting standard. The text of the international
accounting standard may be modified to the extent necessary to take account of
the Australian legal or institutional environment and, in particular, to ensure
that any disclosure and transparency provisions in the standard are appropriate
to the Australian legal or institutional environment.
Manner of participating in the development of
international standards
(5) Without limiting paragraph (1)(d),
the AASB may distribute the text of a draft international accounting standard
(whether or not modified to take account of the Australian legal or
institutional environment) for the purposes of consultation.
Subdivision C—The Auditing and Assurance Standards Board and the Office of
the Auditing and Assurance Standards Board
227AA
The Office of the Auditing and Assurance Standards Board
(1) The Office of the Auditing and Assurance
Standards Board is established.
(2) The Office of the AUASB consists of:
(a) the Chair of the AUASB; and
(b) the other members of the AUASB;
and
(c) the staff of the Office of the
AUASB.
Note: The Office of the AUASB does not have a legal
identity separate from the Commonwealth.
227AB
Office of the AUASB’s functions and powers
(1) The Office of the AUASB has the following
functions:
(a) to make such arrangements as are
necessary to give effect to the decisions of the AUASB;
(b) to provide technical services to
the AUASB;
(c) to provide administrative services
to the AUASB;
(d) to provide information to the
AUASB;
(e) to advise the AUASB about the
performance of any of the AUASB’s functions;
(f) to make resources and facilities
(including meeting facilities, communication facilities and secretariat
services) available to the AUASB;
(g) such other functions as are
conferred on the Office by this Act;
(h) to do anything incidental to, or
conducive to, the performance of any of the above functions.
(2) The Office of the AUASB has power to:
(a) establish committees, advisory
panels and consultative groups; and
(b) receive money contributed towards
its or the AUASB’s operating costs; and
(c) do anything else that is necessary
for, or reasonably incidental to, the performance of its functions.
227A
The Auditing and Assurance Standards Board
The Auditing and Assurance Standards
Board is established.
227B
AUASB’s functions and powers
Functions
(1) The functions of the AUASB are:
(a) to make auditing standards under
section 336 of the Corporations Act for the purposes of the corporations
legislation; and
(b) to formulate auditing and
assurance standards for other purposes; and
(c) to formulate guidance on auditing
and assurance matters; and
(d) to participate in and contribute
to the development of a single set of auditing standards for world‑wide use;
and
(e) to advance and promote the main
objects of this Part.
Note 1: The standards made under paragraph (a) are
given legal effect by the Corporations Act. The standards formulated under paragraph (b)
do not have legal effect under the Corporations Act itself but may be applied
or adopted by some other authority.
Note 2: See section 224 and sections 234A to
234D for the framework within which the AUASB is to formulate and make auditing
standards.
Power to establish committees etc.
(2) The AUASB has power to establish
committees, advisory panels and consultative groups.
Manner of making and formulating standards
(3) Without limiting paragraph (1)(a) or
(b), the AUASB may make or formulate an auditing standard by issuing the text
of an international auditing standard.
(4) The text of the international auditing
standard may be modified to the extent necessary to take account of the
Australian legal or institutional environment.
Manner of participating in the development of
international standards
(5) Without limiting paragraph (1)(d),
the AUASB may distribute the text of a draft international auditing standard
(whether or not modified to take account of the Australian legal or
institutional environment) for the purposes of consultation.
Division 2—Accounting standards
228
Purposive interpretation of standards
Objects of this Part
(1) In interpreting an accounting standard
made or formulated by the AASB, a construction that would promote the objects
of this Part is to be preferred to a construction that would not promote those
objects.
Note: Section 224 states the main objects of
this Part.
Purposes or objects of particular standard
(2) In interpreting an accounting standard
made or formulated by the AASB, a construction that would promote a purpose or
object of the standard (to the extent to which it is not inconsistent with the
objects of this Part) is to be preferred to a construction that would not
promote that purpose or object. This is so even if the purpose or object is not
expressly stated in the standard.
229
Generic and specific standards
(1) Accounting standards made or formulated
by the AASB may:
(a) be of general or limited
application (including a limitation to specified bodies or undertakings); and
(b) differ according to differences in
time, place or circumstance.
(2) In making and formulating accounting
standards, the AASB:
(a) must have regard to the
suitability of a proposed standard for different types of entities; and
(b) may apply different accounting
requirements to different types of entities; and
(c) must ensure that there are
appropriate accounting standards for each type of entity that must comply with
accounting standards.
230
Comparative amounts
The accounting standards for the
preparation of financial reports for a period may require the inclusion in
those reports of comparative amounts for earlier periods.
231
Cost/benefit analysis
(1) The AASB must carry out a cost/benefit
analysis of the impact of a proposed accounting standard before making or
formulating the standard. This does not apply where the standard is being made
or formulated by issuing the text of an international standard (whether or not
modified to take account of the Australian legal or institutional environment).
Note: Subsection 227(4) allows the AASB to make or
formulate a standard by issuing the text of an international standard. Under subsection (2)
of this section, the AASB will have done a cost/benefit analysis of the
international standard used in that way.
(2) The AASB must carry out a cost/benefit
analysis of the impact of a proposed international accounting standard before:
(a) providing comments on a draft of
the standard; or
(b) proposing the standard for
adoption as an international standard.
(3) The AASB has to comply with subsections (1)
and (2) only to the extent to which it is reasonably practicable to do so in
the circumstances.
(4) The Minister may direct the AASB to give
the Minister details of a cost/benefit analysis carried out under this section.
The AASB must comply with the direction.
232
FRC views
In performing its functions, the AASB
must follow the broad strategic direction determined by the FRC under paragraph
225(2)(c).
233
International accounting standards
The Minister may give the AASB a
direction about the role of international accounting standards in the
Australian accounting standard setting system. Before giving a direction under
this section, the Minister must receive and consider a report from the FRC
about the desirability of giving the direction. The AASB must comply with the
direction.
234
Validity of accounting standards
A failure to comply with this Division
in relation to the making of an accounting standard does not affect the
validity of the standard.
Division 2A—Auditing standards
234A
Purposive interpretation of standards
Objects of this Part
(1) In interpreting an auditing standard made
or formulated by the AUASB, a construction that would promote the objects of
this Part is to be preferred to a construction that would not promote those
objects.
Note: Section 224 states the main objects of
this Part.
Purposes or objects of particular standard
(2) In interpreting an auditing standard made
or formulated by the AUASB, a construction that would promote a purpose or
object of the standard (to the extent to which it is not inconsistent with the
objects of this Part) is to be preferred to a construction that would not
promote that purpose or object. This is so even if the purpose or object is not
expressly stated in the standard.
234B
Generic and specific standards
Auditing standards made or formulated by
the AUASB may:
(a) be of general or limited
application (including a limitation to different types of audit and specified
industries, bodies or undertakings); and
(b) differ according to differences in
time, place or circumstance.
234C
FRC views
In performing its functions, the AUASB
must follow the broad strategic direction determined by the FRC under paragraph
225(2A)(c).
234D
International auditing standards
(1) The Minister may give the AUASB a
direction about the role of international auditing standards in the Australian
auditing standard setting system.
(2) Before giving a direction under this
section, the Minister must receive and consider a report from the FRC about the
desirability of giving the direction.
(3) The AUASB must comply with the direction.
234E
Validity of auditing standards
A failure to comply with this Division
in relation to the making of an auditing standard does not affect the validity
of the standard.
Division 3—Administrative provisions
Subdivision A—The Financial Reporting Council
235A
Membership of FRC
(1) The members of the FRC are appointed by
the Minister in writing. The Minister may appoint a person by specifying an
organisation or body that is to choose the person who is appointed.
(2) The members hold office on the terms and
conditions that are determined by the Minister.
(3) The Minister must appoint one of the
members to be Chair of the FRC. The appointment must be in writing. The FRC may
appoint one of its members to be Deputy Chair of the FRC.
235B
Annual report
(1) As soon as practicable after 30 June
in each year, and in any event before 31 October, the FRC must give the
Minister a report on:
(a) the operations of the FRC and its
committees and advisory groups; and
(b) the achievement of the objects set
out in section 224;
during the year that ended on 30 June in that year.
(2) The report must include details of any
advice or feedback that the FRC gave under paragraph 225(2)(b) or (ba) or
(2A)(b) or (ba) during the year that ended on that 30 June.
(3) The Minister may grant an extension of
time in special circumstances.
(4) The Minister must table the report in
each House of the Parliament as soon as practicable.
235BA
Report on auditor independence functions
(1) As soon as practicable after 30 June
in each year, and in any event before 31 October, the FRC must give the
Minister a report on:
(a) the performance by the FRC, during
the year that ended on 30 June in that year, of its functions under
subsection 225(2B) (the auditor independence functions); and
(b) the findings and conclusions that
the FRC reached in performing those functions; and
(c) the actions (if any) that were
taken by the FRC in respect of those findings and conclusions.
The report may be given to the Minister separately or
included in the report given to the Minister under section 235B.
(2) The Minister may grant an extension of
time in special circumstances.
(3) The Minister must table the report in
each House of the Parliament as soon as practicable.
235C
Procedure
The FRC may determine its own procedural
rules (including rules as to notice of meetings, quorum and voting).
Subdivision AA—The Office of the AASB
235D
Duties of the Chair of the AASB
(1) The Chair of the AASB, under the
Minister, is responsible for managing the Office of the AASB.
(2) In particular, the Chair of the AASB is
responsible for approving:
(a) the AASB’s priorities, business
plans and procedures; and
(b) the Office of the AASB’s budgets
and staffing arrangements (including level, structure and composition of
staffing).
(3) If the Chair of the AASB takes action
that is inconsistent with any advice the FRC has given under paragraph
225(2)(b) or (ba), he or she must:
(a) make a written record of his or
her reasons for not following the advice; and
(b) give a copy of the advice and of
his or her reasons to the Minister; and
(c) include a copy of the advice and
of his or her reasons in the annual report under section 235J.
235E
Staff of the Office of the AASB
Employment of staff
(1) The Chair of the AASB may, on behalf of
the Commonwealth, employ such staff under written agreements as the Chair
thinks necessary to employ to assist the Office of the AASB in the performance
of its functions and the exercise of its powers.
(2) The terms and conditions of staff
employed under subsection (1) are as determined in writing by the Chair.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
Office of the AASB Code of Conduct
(3) The Chair of the AASB must determine, in
writing, the Office of the AASB Code of Conduct.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(4) The Office of the AASB Code of Conduct
applies to the Chair of the AASB and staff appointed under subsection (1).
(5) An instrument made under
subsection (3) is not a legislative instrument.
Engagement of staff under the Public Service Act 1999
(6) Without limiting subsections (1) and
(2), staff of the Office of the AASB may be engaged under the Public Service
Act 1999.
(7) For the purposes of the Public Service
Act 1999:
(a) the Chair of the AASB and the
staff of the Office of the AASB referred to in subsection (6) together
constitute a Statutory Agency; and
(b) the Chair of the AASB is the Head
of that Statutory Agency.
235F
Consultants and persons seconded to the Office of the AASB
(1) The Chair of the AASB may, on behalf of
the Commonwealth, engage consultants to perform services for the Office of the
AASB in connection with the performance of any of its functions.
(2) The terms and conditions of engagement
are as determined in writing by the Chair.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(3) The Office of the AASB may also be
assisted:
(a) by employees of Agencies (within
the meaning of the Public Service Act 1999); and
(b) by officers and employees of
authorities of the Commonwealth; and
(c) by employees of Commonwealth
companies (within the meaning of the Commonwealth Authorities and Companies
Act 1997);
whose services are made available to the Office of the
AASB in connection with the performance of any of its functions.
235G
Office of the AASB to have regard to FRC’s advice etc.
The Office of the AASB must have regard
to the advice and feedback about its budgets and staffing arrangements that the
FRC gives under paragraph 225(2)(ba).
235H
Chair not subject to direction by the AASB on certain matters
To avoid doubt, the Chair of the AASB is
not subject to direction by the AASB in relation to the Chair’s performance of
functions, or exercise of powers, under the Financial Management and
Accountability Act 1997 or the Public Service Act 1999 in relation
to the Office of the AASB.
235J
Annual report
The Chair of the AASB must, as soon as
practicable after the end of each financial year, prepare and give to the
Minister, for presentation to the Parliament, a report of the operations of the
AASB and the Office of the AASB during the financial year.
Subdivision B—The Australian Accounting Standards Board
236A
Procedures
(1) Meetings
of the AASB are to be chaired by:
(a) the Chair; or
(b) the Deputy Chair if the Chair is
absent; or
(c) a member chosen by the members
present if both the Chair and the Deputy Chair are absent.
(2) If a meeting of the AASB, or a part of
one of its meetings, concerns the contents of accounting standards or
international accounting standards, the meeting or that part of it must be held
in public.
(4) Otherwise, the AASB may determine its own
procedural rules (including rules as to notice of meetings, quorum and voting).
236AA
AASB to have regard to FRC’s advice etc.
The AASB must have regard to the advice
and feedback about its priorities, business plans and procedures that the FRC
gives under paragraph 225(2)(b).
236B
Appointment of members of the AASB
Appointment of Chair
(1) The Minister appoints the Chair of the
AASB.
Appointment of other members
(2) The FRC appoints the other members of the
AASB. The AASB may appoint one of its members to be Deputy Chair of the AASB.
Qualification for appointment
(3) A person must not be appointed as a
member of the AASB unless their knowledge of, or experience in, business,
accounting, law or government qualifies them for the appointment.
Appointment document
(4) An appointment under subsection (1)
or (2) is to be made in writing.
Period of appointment
(5) The appointment document must specify the
period of the appointment (not exceeding 5 years). A member holds office for
the period specified in the appointment document and is eligible for re‑appointment.
Terms and conditions of appointment
(6) The Chair holds office on the terms and
conditions that are determined by the Minister. The other members hold office
on the terms and conditions determined by the FRC.
236C
Resignation and termination of appointment
Resignation
(1) A member of the AASB may resign their
appointment by giving a written resignation to:
(a) if the member is the Chair of the
AASB—the Minister; or
(b) in any other case—the Chair of the
FRC.
Termination of Chair’s appointment
(2) The Chair is not to be removed from
office except as provided by subsection (3) or (4).
(3) The Minister may terminate the
appointment of the Chair of the AASB for:
(a) misbehaviour or physical or mental
incapacity; or
(b) breach of the terms and conditions
of their appointment.
(4) The Minister must terminate the
appointment of the Chair of the AASB if the Chair:
(a) becomes bankrupt; or
(b) applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors; or
(c) compounds with their creditors; or
(d) makes an assignment of their
remuneration or property for the benefit of their creditors; or
(e) contravenes section 237.
Termination of ordinary member’s appointment
(5) A member of the AASB (other than the
Chair) is not to be removed from office except as provided by subsection (6)
or (7).
(6) The FRC may terminate the appointment of
a member of the AASB (other than the Chair) for:
(a) misbehaviour or physical or mental
incapacity; or
(b) breach of the terms and conditions
of the member’s appointment.
(7) The FRC
must terminate the appointment of a member of the AASB (other than the Chair)
if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors; or
(c) compounds with their creditors; or
(d) makes an assignment of their
remuneration or property for the benefit of their creditors; or
(e) contravenes section 237.
236D
Acting appointments
(1) The Minister may appoint a person to act
as Chair of the AASB:
(a) during a vacancy in the office of Chair
(whether or not an appointment has previously been made to the office); or
(b) during any period, or during all
periods, when the Chair is absent from duty or from Australia, or is for any
reason unable to perform the duties of the office.
(2) The AASB may appoint one of its members
to act as Deputy Chair of the AASB:
(a) during a vacancy in the office of
Deputy Chair (whether or not an appointment has previously been made to the
office); or
(b) during any period, or during all
periods, when the Deputy Chair is absent from duty or from Australia, or is for any reason unable to perform the duties of the office.
(3) The FRC may appoint a person to act as a
member of the AASB (other than the Chair):
(a) during a vacancy in the office of
member (whether or not an appointment has previously been made to the office);
or
(b) during any period, or during all
periods, when the member is absent from duty or from Australia, or is for any
reason unable to perform the duties of the office.
(4) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect in connection
with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
236DA
Disclosure of interests
Disclosure to Minister or Chair of AASB
(1) If a member of the AASB has or acquires
any direct or indirect pecuniary interest that conflicts or could conflict with
the proper performance of the member’s functions, the member must:
(a) if the member is the Chair of the
AASB—give written notice of the interest to the Minister; or
(b) if the member is not the Chair of
the AASB—give written notice of the interest to the Chair of the AASB.
Disclosure to AASB
(2) A member of the AASB who has a direct or
indirect pecuniary interest in a matter being considered or about to be
considered by the AASB must disclose the nature of the interest to a meeting of
the AASB.
(3) The disclosure under subsection (2)
must be made as soon as possible after the relevant facts have come to the
member’s knowledge.
(4) The disclosure under subsection (2)
must be recorded in the minutes of the meeting of the AASB.
(5) The member:
(a) must not be present during any
deliberation by the AASB on the matter; and
(b) must not take part in any decision
of the AASB with respect to the matter;
unless the Minister (if the member is the Chair of the
AASB) or the Chair of the AASB (if the member is not the Chair of the AASB)
otherwise determines.
Subdivision
BAA—The Office of the AUASB
236DB
Duties of the Chair of the AUASB
(1) The Chair of the AUASB, under the
Minister, is responsible for managing the Office of the AUASB.
(2) In particular, the Chair of the AUASB is
responsible for approving:
(a) the AUASB’s priorities, business
plans and procedures; and
(b) the Office of the AUASB’s budgets
and staffing arrangements (including level, structure and composition of
staffing).
(3) If the Chair of the AUASB takes action
that is inconsistent with any advice the FRC has given under paragraph
225(2A)(b) or (ba), he or she must:
(a) make a written record of his or
her reasons for not following the advice; and
(b) give a copy of the advice and of
his or her reasons to the Minister; and
(c) include a copy of the advice and
of his or her reasons in the annual report under section 236DG.
236DC
Staff of the Office of the AUASB
Employment of staff
(1) The Chair of the AUASB may, on behalf of
the Commonwealth, employ such staff under written agreements as the Chair
thinks necessary to employ to assist the Office of the AUASB in the performance
of its functions and the exercise of its powers.
(2) The terms and conditions of staff
employed under subsection (1) are as determined in writing by the Chair.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
Office of the AUASB Code of Conduct
(3) The Chair of the AUASB must determine, in
writing, the Office of the AUASB Code of Conduct.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(4) The Office of the AUASB Code of Conduct
applies to the Chair of the AUASB and staff appointed under
subsection (1).
(5) An instrument made under
subsection (3) is not a legislative instrument.
Engagement of staff under the Public Service Act 1999
(6) Without limiting subsections (1) and
(2), staff of the Office of the AUASB may be engaged under the Public
Service Act 1999.
(7) For the purposes of the Public Service
Act 1999:
(a) the Chair of the AUASB and the
staff of the Office of the AUASB referred to in subsection (6) together
constitute a Statutory Agency; and
(b) the Chair of the AUASB is the Head
of that Statutory Agency.
236DD
Consultants and persons seconded to the Office of the AUASB
(1) The Chair of the AUASB may, on behalf of
the Commonwealth, engage consultants to perform services for the Office of the
AUASB in connection with the performance of any of its functions.
(2) The terms
and conditions of engagement are as determined in writing by the Chair.
Note: For variation and revocation, see subsection
33(3) of the Acts Interpretation Act 1901.
(3) The Office of the AUASB may also be
assisted:
(a) by officers and employees of
Agencies (within the meaning of the Public Service Act 1999); and
(b) by officers and employees of
authorities of the Commonwealth; and
(c) by employees of Commonwealth
companies (within the meaning of the Commonwealth Authorities and Companies Act
1997);
whose services are made available to the Office of the
AUASB in connection with the performance of any of its functions.
236DE
Office of the AUASB to have regard to FRC’s advice etc.
The Office of the AUASB must have regard
to the advice and feedback about its budgets and staffing arrangements that the
FRC gives under paragraph 225(2A)(ba).
236DF
Chair not subject to direction by the AUASB on certain matters
To avoid doubt, the Chair of the AUASB
is not subject to direction by the AUASB in relation to the Chair’s performance
of functions, or exercise of powers, under the Financial Management and
Accountability Act 1997 or the Public Service Act 1999 in relation
to the Office of the AUASB.
236DG
Annual report
The Chair of the AUASB must, as soon as
practicable after the end of each financial year, prepare and give to the
Minister, for presentation to the Parliament, a report of the operations of the
AUASB and the Office of the AUASB during the financial year.
Subdivision BA—The Auditing and Assurance Standards Board
236E
Procedures
(1) Meetings of the AUASB are to be chaired
by:
(a) the Chair; or
(b) the Deputy Chair if the Chair is
absent; or
(c) a member chosen by the members
present if both the Chair and the Deputy Chair are absent.
(2) If a meeting of the AUASB, or a part of
one of its meetings, concerns the contents of auditing standards or
international auditing standards, the meeting or that part of it must be held
in public.
(4) Otherwise, the AUASB may determine its
own procedural rules (including rules as to notice of meetings, quorum and
voting).
236EA
AUASB to have regard to FRC’s advice etc.
The AUASB must have regard to the advice
and feedback about its priorities, business plans and procedures that the FRC
gives under paragraph 225(2A)(b).
236F
Appointment of members of the AUASB
Appointment of Chair
(1) The Minister appoints the Chair of the
AUASB.
Appointment of other members
(2) The FRC appoints the other members of the
AUASB.
(3) The AUASB may appoint one of its members
to be Deputy Chair of the Board.
Qualification for appointment
(4) A person must not be appointed as a
member of the AUASB unless their knowledge of, or experience in, business,
accounting, auditing, law or government qualifies them for the appointment.
Appointment document
(5) An appointment under subsection (1)
or (2) is to be made in writing.
Period of appointment
(6) The appointment document must specify the
period of the appointment (not exceeding 5 years).
(7) A member holds office for the period
specified in the appointment document and is eligible for re‑appointment.
Terms and conditions of appointment
(8) The Chair holds office on the terms and
conditions that are determined by the Minister.
(9) The other members hold office on the terms
and conditions determined by the FRC.
236G
Resignation and termination of appointment
Resignation
(1) A member of the AUASB may resign their
appointment by giving a written resignation to:
(a) if the member is the Chair of the
AUASB—the Minister; or
(b) in any other case—the Chair of the
FRC.
Termination of Chair’s appointment
(2) The Chair is not to be removed from
office except as provided by subsection (3) or (4).
(3) The Minister may terminate the
appointment of the Chair of the AUASB for:
(a) misbehaviour or physical or mental
incapacity; or
(b) breach of the terms and conditions
of their appointment.
(4) The Minister must terminate the
appointment of the Chair of the AUASB if the Chair:
(a) becomes bankrupt; or
(b) applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors; or
(c) compounds with their creditors; or
(d) makes an assignment of their
remuneration or property for the benefit of their creditors; or
(e) contravenes section 237.
Termination of ordinary member’s appointment
(5) A member of the AUASB (other than the
Chair) is not to be removed from office except as provided by subsection (6)
or (7).
(6) The FRC may terminate the appointment of
a member of the AUASB (other than the Chair) for:
(a) misbehaviour or physical or mental
incapacity; or
(b) breach of the terms and conditions
of the member’s appointment.
(7) The FRC must terminate the appointment of
a member of the AUASB (other than the Chair) if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any
law for the relief of bankrupt or insolvent debtors; or
(c) compounds with their creditors; or
(d) makes an assignment of their
remuneration or property for the benefit of their creditors; or
(e) contravenes section 237.
236H
Acting appointments
(1) The Minister may appoint a person to act
as Chair of the AUASB:
(a) during a vacancy in the office of
Chair (whether or not an appointment has previously been made to the office);
or
(b) during any period, or during all periods,
when the Chair is absent from duty or from Australia, or is for any reason
unable to perform the duties of the office.
(2) The AUASB
may appoint one of its members to act as Deputy Chair of the AUASB:
(a) during a vacancy in the office of
Deputy Chair (whether or not an appointment has previously been made to the
office); or
(b) during any period, or during all
periods, when the Deputy Chair is absent from duty or from Australia, or is for any reason unable to perform the duties of the office.
(3) The FRC may appoint a person to act as a
member of the AUASB (other than the Chair):
(a) during a vacancy in the office of
the member (whether or not an appointment has previously been made to the
office); or
(b) during any period, or during all
periods, when the member is absent from duty or from Australia, or is for any
reason unable to perform the duties of the office.
(4) Anything done by, or in relation to, a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect in connection
with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
236J
Disclosure of interests
Disclosure to Minister or Chair of AUASB
(1) If a member of the AUASB has or acquires
any direct or indirect pecuniary interest that conflicts or could conflict with
the proper performance of the member’s functions, the member must:
(a) if the member is the Chair of the
AUASB—give written notice of the interest to the Minister; or
(b) if the member is not the Chair of
the AUASB—give written notice of the interest to the Chair of the AUASB.
Disclosure to AUASB
(2) A member of the AUASB who has a direct or
indirect pecuniary interest in a matter being considered or about to be
considered by the AUASB must disclose the nature of the interest to a meeting
of the AUASB.
(3) The disclosure under subsection (2)
must be made as soon as possible after the relevant facts have come to the
member’s knowledge.
(4) The disclosure under subsection (2)
must be recorded in the minutes of the meeting of the AUASB.
(5) The member:
(a) must not be present during any
deliberation by the AUASB on the matter; and
(b) must not take part in any decision
of the AUASB with respect to the matter;
unless the Minister (if the member is the Chair of the
AUASB) or the Chair of the AUASB (if the member is not the Chair of the AUASB)
otherwise determines.
Subdivision C—Confidentiality
237
Confidentiality
(1) The FRC, the AASB, the Office of the
AASB, the AUASB and the Office of the AUASB must take all reasonable measures
to protect from unauthorised use or disclosure information given to it in
confidence.
(2) For the purposes of subsection (1),
the disclosure of information is taken to be authorised if the disclosure:
(a) is required or permitted by a law
of the Commonwealth or a prescribed law of a State or Territory; or
(b) is made in order to enable an
authority or person in a country outside Australia and the external Territories
to perform or exercise a function or power that corresponds, or is analogous,
to any of the FRC’s, the AASB’s, the Office of the AASB’s, the AUASB’s or the
Office of the AUASB’s functions or powers; or
(c) is made to bodies that set
international accounting standards or international auditing standards; or
(d) is made to ASIC for the purposes
of its performance of its functions under the corporations legislation (other
than the excluded provisions); or
(e) is made to the Disciplinary Board
for the purposes of its performance of its functions under the corporations
legislation; or
(ea) is made to APRA for the purposes
of its performance of its functions; or
(f) is made to a professional
accounting body for the purposes of its performance of its functions.
Part 13—Financial Reporting Panel
Division 1—General
239AA
Financial Reporting Panel
A Financial Reporting Panel is
established.
239AB
Membership
(1) The Financial Reporting Panel consists of
such members, not fewer than 5, as hold office in accordance with this Part.
(2) The Minister is to appoint the members of
the Financial Reporting Panel.
(3) Each of the members may be appointed as a
full‑time member or as a part‑time member.
(4) The Minister must not appoint a person as
a member unless the Minister is satisfied that the person is qualified for
appointment because of his or her knowledge of, or experience in, one or more
of the following fields:
(a) accounting;
(b) auditing;
(c) business;
(d) the administration of companies;
(e) law.
(5) The performance of the functions or the
exercise of the powers of the Financial Reporting Panel is not affected merely
because its membership is not as prescribed by subsection (1), unless a
continuous period of 3 months has elapsed since its membership ceased to be as
so prescribed.
239AC
Chairperson
The Minister is to appoint as
Chairperson of the Financial Reporting Panel a person who is, or is to be, a
member.
239AD
Functions and powers of Financial Reporting Panel
The Financial Reporting Panel has the
functions and powers conferred on it by or under the Corporations legislation.
239AE
Term of office as member
(1) Subject to this Act, a person appointed
as a member holds office for the term specified in the instrument of
appointment, but is eligible for re‑appointment.
(2) The term specified must not exceed 5
years.
239AF
Term of office as Chairperson
(1) Subject to this Act, a person appointed
as Chairperson holds office as such until:
(a) the end of his or her current term
as a member; or
(b) he or she otherwise stops being a
member;
whichever happens first.
(2) A person is not ineligible to be
appointed under section 239AC merely because he or she has been so
appointed before.
239AG
Resignation
A person may resign as a member or
Chairperson by writing signed and delivered to the Minister.
239AH
Termination of appointment
The Minister may terminate a member’s
appointment because of misbehaviour, or the physical or mental incapacity, of
the member or if the member:
(a) becomes bankrupt, applies to take
the benefit of a law for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or assigns remuneration or property for their
benefit; or
(b) is a full‑time member and engages
without the Minister’s consent in paid employment outside the duties of the
member’s office; or
(c) is a full‑time member and is
absent from duty, except on leave granted in accordance with section 239AJ,
for 14 consecutive days, or for 28 days in any period of 12 months; or
(d) without reasonable excuse,
contravenes section 239BB.
239AI
Remuneration and allowances
(1) A member must be paid such remuneration
as is determined by the Remuneration Tribunal but, if no determination of that
remuneration by the Tribunal is in operation, a member must be paid such
remuneration as the Minister determines in writing.
(2) A member must be paid such allowances as
the Minister determines in writing.
(3) This section has effect subject to the
Remuneration Tribunal Act 1973.
239AJ
Leave of absence
(1) A full‑time member has such recreation
leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant a full‑time member
leave of absence, other than recreation leave, on such terms and conditions as
to remuneration or otherwise as the Minister determines.
239AK
Other terms and conditions
A member holds office on such terms and
conditions (if any) in respect of matters not provided for by this Act as the
Minister determines in writing.
239AL
Acting Chairperson
(1) The Minister may appoint a member to act
as Chairperson:
(a) during a vacancy in the office of
Chairperson (whether or not an appointment has previously been made to the
office); or
(b) during all periods when the
Chairperson is absent from duty or from Australia or is, for any other reason,
unable to perform the functions of the office.
(2) Anything done by, or in relation to, a
person purporting to act under an appointment under subsection (1) is not
invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
239AM
Annual report
(1) The Financial Reporting Panel must, as
soon as practicable after 30 June, and in any event before 31 October,
in each year:
(a) prepare a report describing the
operations of the Panel during the year that ended on 30 June in that
year; and
(b) give to the Minister a copy of the
report.
(2) If a copy of a report is given to the
Minister under subsection (1), he or she must cause a copy of the report
to be laid before each House of the Parliament within 15 sitting days of that House
after he or she receives the first‑mentioned copy.
Division 2—Conduct of Financial Reporting Panel’s business
239BA
Constitution of Financial Reporting Panel in relation to particular matters
(1) The Financial Reporting Panel must, for
the purposes of the performance or exercise of its functions or powers in
relation to a particular matter, be constituted by 3 members in respect of whom
a direction is in force under this section in relation to that matter.
(2) The Chairperson may give directions about
the members (the sitting members) who are to constitute the
Financial Reporting Panel for the purposes of performing or exercising its
functions or powers in relation to particular matters.
(3) A direction under subsection (2)
must:
(a) unless the sitting members include
the Chairperson—designate one of them as Chairperson; and
(b) in any case—designate one of the
sitting members as Deputy Chairperson;
of the Financial Reporting Panel as constituted in
relation to the matter concerned.
(4) If the Chairperson gives a direction as
to the sitting members, he or she may:
(a) revoke the direction and give a
new direction under subsection (2) as to the sitting members; or
(b) vary the direction to replace one
or more of the sitting members;
at any time after the giving of the direction and before
the commencement of proceedings in relation to the matter.
(5) If:
(a) the Chairperson gives a direction
as to the sitting members; and
(b) one of those persons:
(i) ceases to be a member;
or
(ii) ceases to be available
for the purposes of proceedings in relation to a matter;
during the proceedings or after
the completion of the proceedings but before the report on the matter to which
the proceedings relate is finalised;
the Chairperson may vary the direction to replace that
person at any time after the person so ceases to be a member or to be
available.
239BB
Disclosure of interests by members
(1) If:
(a) a member is, or is to be, a member
of the Financial Reporting Panel as constituted for the purposes of the
performance or exercise of its functions or powers in relation to a particular
matter; and
(b) the member has or acquires any
interest, pecuniary or otherwise, that could conflict with the proper
performance of the member’s functions in relation to that matter;
the member:
(c) must disclose the interest to the
Chairperson and to the parties involved in the matter; and
(d) except with the Chairperson’s
consent, must not take part in the performance or exercise of the Financial
Reporting Panel’s functions or powers in relation to the matter.
(2) The Chairperson must not, under paragraph (1)(d),
consent to a member taking part in the performance or exercise of the Financial
Reporting Panel’s functions or powers in relation to a matter unless the Chairperson
believes, on reasonable grounds, that the member’s interest:
(a) is immaterial or indirect; and
(b) will not prevent the member from
acting impartially in relation to the matter.
(3) If the Chairperson becomes aware that a
member who is, or is to be, a member of the Financial Reporting Panel (as
constituted for the purposes of the performance or exercise of its functions or
powers in relation to a particular matter) has, in relation to that matter, an
interest of the kind referred to in subsection (1):
(a) the Chairperson must revoke the
direction given under subsection 239BA(2) in relation to the matter unless the
Chairperson believes, on reasonable grounds, that the member’s interest:
(i) is immaterial or
indirect; and
(ii) will not prevent the
member from acting impartially in relation to the matter; or
(b) if the Chairperson is not required
to revoke that direction under paragraph (a), the Chairperson must cause
the member’s interest to be disclosed to the parties involved in the matter.
239BC
Application of Division 2 of Part 7
Division 2 of Part 7 applies
in relation to the Financial Reporting Panel as if a reference in section 127
to ASIC included a reference to the Financial Reporting Panel.
Division 3—Financial Reporting Panel proceedings
239CA
Interpretation
(1) For the purposes of the performance or
exercise, in relation to a particular matter, of any of the Financial Reporting
Panel’s functions and powers, this Division has effect as if:
(a) a reference to the Financial Reporting
Panel were a reference to the Financial Reporting Panel as constituted in
relation to that matter; and
(b) a reference to a member were a
reference to a member of the Financial Reporting Panel as so constituted; and
(c) if the Chairperson is not a member
of the Financial Reporting Panel as so constituted—a reference to the
Chairperson were a reference to the member designated, in a direction in force
under subsection 239BA(2), as the Chairperson of the Financial Reporting Panel
as so constituted; and
(d) a reference to the Deputy
Chairperson were a reference to the member designated, in a direction in force
under subsection 239BA(2), as Deputy Chairperson of the Financial Reporting
Panel as so constituted.
(2) A reference in this Division to Financial
Reporting Panel proceedings includes a reference to a part of the Financial
Reporting Panel proceedings.
239CB
Power to conduct proceedings
(1) The Financial Reporting Panel may conduct
proceedings for the purposes of the performance or exercise of any of its
functions and powers.
(2) The Chairperson may convene proceedings
to be held at a place and time he or she determines.
239CC
Financial Reporting Panel proceedings
Proceedings in private
(1) Subject to subsection (2), the
Financial Reporting Panel’s proceedings must take place in private.
Proceedings in public
(2) The proceedings must take place in public
if the lodging entity requests the Panel, in writing, that the proceedings take
place in public. This subsection has effect subject to any directions under subsection (3).
Part of proceedings in private or publication
restrictions
(3) The Financial Reporting Panel may give
directions under subsection (4) if:
(a) the proceedings are taking place
in public at the request of the lodging entity under subsection (2); and
(b) the Financial Reporting Panel is
satisfied that it is desirable to do so:
(i) because of the
confidential nature of any evidence or matter; or
(ii) in order to protect
the interests of any other person.
(4) The Financial Reporting Panel may:
(a) direct that a part of the
proceedings take place in private; and
(b) give directions as to the persons
who may be present at that part of the proceedings if it is to take place in
private.
A reference in this section to proceedings that take place
in private includes a reference to that part of the proceedings that takes
place in private because of a direction under paragraph (a).
Who may be present at proceedings taking place in
private
(5) The Financial Reporting Panel may give directions
as to the persons who may be present at proceedings that take place in private.
(6) A person must not be present at
proceedings that take place in private unless the person is:
(a) the Chairperson; or
(b) a member of the Financial
Reporting Panel; or
(c) a person representing the lodging
entity; or
(d) another person who is entitled to
be given an opportunity to appear at the proceedings; or
(e) a person representing ASIC; or
(f) a member of the staff of the
Financial Reporting Panel approved by the Panel; or
(g) entitled to be present because of
a direction under subsection (4).
Penalty: 10 penalty units.
(7) An offence against subsection (6) is
an offence of strict liability.
Note: For strict liability see section 6.1
of the Criminal Code.
ASIC and person entitled to appear
(8) Nothing in a direction given by the
Financial Reporting Panel under paragraph (3)(a) or subsection (6)
prevents the presence at the proceedings of:
(a) a person representing ASIC; or
(b) a person who is entitled to be
given an opportunity to appear at the proceedings.
Note: Although ASIC is entitled to have a
representative at the proceedings, it is not entitled to be legally represented
(see section 239CG).
(9) The Financial Reporting Panel may revoke
or vary a direction given under subsection (4).
239CD
Financial Reporting Panel may restrict publication of certain material
(1) If, during Financial Reporting Panel
proceedings, the Panel is satisfied that it is desirable to do so, the Panel
may give directions preventing or restricting the publication of:
(a) submissions or evidence made or
given to the Panel; or
(b) matters contained in documents
lodged with the Panel.
(2) In determining whether or not to give a
direction under subsection (1), the Financial Reporting Panel must have
regard to:
(a) whether:
(i) submissions or
evidence made or given, or that may be made or given; or
(ii) a matter that has
arisen or may arise;
during the proceedings is of a
confidential nature or relates to the commission, or to the alleged or
suspected commission, of an offence against an Australian law; and
(b) any unfair prejudice to a person’s
reputation that would be likely to be caused unless the Panel exercises its
powers under this section; and
(c) whether it is in the public
interest that the Panel exercises its powers under this section; and
(d) any other relevant matter.
(3) A person must not contravene a direction
given under subsection (1).
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
(4) An offence constituted by a contravention
of subsection (3) is punishable on summary conviction.
(5) The Financial Reporting Panel may revoke
or vary a direction given under subsection (1).
239CE
Power to summon witnesses and take evidence
(1) A member may, by written summons in the
prescribed form given to a person to whom subsection (2) applies:
(a) require the person to appear
before the Financial Reporting Panel at Financial Reporting Panel proceedings
to give evidence, to produce specified documents, or to do both; and
(b) require the person to attend from
day to day unless excused, or released from further attendance, by a member.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 239CJ).
(2) This subsection applies to:
(a) a staff member of ASIC; or
(b) an officer of the lodging entity;
or
(c) the auditor, or a professional
member of the audit team, for the audit of the relevant financial report; or
(d) any other person involved in
preparing, or auditing, the relevant financial report for or on behalf of the
lodging entity.
(3) In Financial Reporting Panel proceedings,
the Financial Reporting Panel may take evidence on oath or affirmation, and for
that purpose a member may:
(a) require a witness in the
proceedings to either take an oath or make an affirmation; and
(b) administer an oath or affirmation
to a witness in the proceedings.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 239CJ).
(4) The oath or affirmation to be taken or
made by a person for the purposes of this section is an oath or affirmation
that the evidence the person will give will be true.
(5) The member presiding at Financial
Reporting Panel proceedings:
(a) may require a witness in the
proceedings to answer a question put to the witness; and
(b) may require a person appearing in
the proceedings pursuant to a summons issued under this section to produce a
document specified in the summons.
Note: Failure to comply with a requirement made
under this subsection is an offence (see section 239CJ).
(6) The Financial Reporting Panel may pay
such amount as it thinks reasonable on account of the costs and expenses (if
any) that a person (other than a staff member of ASIC) incurs in complying with
a requirement made under this section.
239CF
Quorum
In Financial Reporting Panel
proceedings, 2 members form a quorum.
239CG
No legal representation in proceedings before the Financial Reporting Panel
(1) Unless the Financial Reporting Panel
otherwise determines, a party to Financial Reporting Panel proceedings is not
to be legally represented in the proceedings.
(2) For the purposes of this section, ASIC is
taken to be a party to the proceedings.
(3) The Financial Reporting Panel may revoke
or vary a determination made under subsection (1).
239CH
Procedure
(1) Subject to subsections (2) to (4), the Financial Reporting Panel may determine the procedural rules to be
followed in Financial Reporting Panel proceedings.
(2) Financial Reporting Panel proceedings are
to be conducted in accordance with (in order of priority):
(a) the requirements of this Division
and the Corporations Act; and
(b) the requirements of the
regulations.
(3) Without limiting paragraph (2)(b),
the regulations may deal with:
(a) the people who are entitled to be
given the opportunity to appear in Financial Reporting Panel proceedings; and
(b) making submissions or giving
evidence in Financial Reporting Panel proceedings; and
(c) the matters that the Financial
Reporting Panel is to take into account when making a decision in the course of
Financial Reporting Panel proceedings.
(4) The rules of procedural fairness, to the
extent that they are not inconsistent with the provisions of this Act or the
regulations made under it, apply to Financial Reporting Panel proceedings.
239CI
Protection of members etc.
(1) A member has, in the performance or
exercise of any of his or her functions and powers as a member in relation to
Financial Reporting Panel proceedings, the same protection and immunity as a
Justice of the High Court.
(2) Subject to this Act:
(a) a person who is required by a
summons under section 239CE to appear in Financial Reporting Panel
proceedings; or
(b) a witness in Financial Reporting
Panel proceedings;
has the same protection as a witness in a proceeding in
the High Court.
239CJ
Non‑compliance with requirements made under section 239CE
(1) A person must not fail to comply with a
requirement made under subsection 239CE(1), (3) or (5).
Penalty: 10 penalty units.
(2) An offence against subsection (1) is
an offence of strict liability.
Note: For strict liability see section 6.1
of the Criminal Code.
239CK
Contempt of Financial Reporting Panel
(1) A person must not:
(a) engage in conduct that results in
the obstruction or hindering of the Financial Reporting Panel or a member in
the performance or exercise of any of the Financial Reporting Panel’s functions
and powers; or
(b) engage in conduct that results in
the disruption of Financial Reporting Panel proceedings.
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
(2) An offence constituted by a contravention
of subsection (1) is punishable on summary conviction.
239CL
Powers of Court where non‑compliance with section 239CE
(1) This section applies if the Financial
Reporting Panel, as constituted for the purposes of particular Financial
Reporting Panel proceedings, is satisfied that a person has failed to comply
with a requirement made under section 239CE in, or in relation to, those
proceedings.
(2) A member of the Financial Reporting Panel
as so constituted may by writing certify the failure to the Court.
(3) If a member of the Financial Reporting
Panel does so, the Court may inquire into the case and may order the person to
comply with the requirement as specified in the order.
Part 14—The Parliamentary Joint Committee on Corporations and
Financial Services
241
Membership
(2) The Parliamentary Committee consists of
10 members, of whom:
(a) 5 are to be senators appointed by
the Senate; and
(b) 5 are to be members of the House
of Representatives appointed by that House.
Note: The Parliamentary Committee was established by
subsection 241(1) of the Australian Securities and Investments Commission
Act 1989 and is continued in existence by section 261 of this Act.
(3) The appointment of members by a House
must be in accordance with that House’s practice relating to the appointment of
members of that House to serve on joint select committees of both Houses.
(4) A person is not eligible for appointment
as a member if he or she is:
(a) a Minister; or
(b) the President of the Senate; or
(c) the Speaker of the House of
Representatives; or
(d) the Deputy‑President and Chairman
of Committees of the Senate; or
(e) the Chairman of Committees of the
House of Representatives.
(5) A member ceases to hold office:
(a) when the House of Representatives
expires or is dissolved; or
(b) if he or she becomes the holder of
an office referred to in a paragraph of subsection (4); or
(c) if he or she ceases to be a member
of the House by which he or she was appointed; or
(d) if he or she resigns his or her
office as provided by subsection (6) or (7), as the case requires.
(6) A member appointed by the Senate may
resign his or her office by writing signed and delivered to the President of
the Senate.
(7) A member appointed by the House of
Representatives may resign his or her office by writing signed and delivered to
the Speaker of that House.
(8) A House may appoint one of its members to
fill a vacancy among the members of the Parliamentary Committee appointed by
that House.
242
Powers and proceedings
Subject to this Act, all matters
relating to the Parliamentary Committee’s powers and proceedings must be
determined by resolution of both Houses.
243
Duties
The Parliamentary Committee’s duties
are:
(a) to inquire into, and report to
both Houses on:
(i) activities of ASIC or
the Panel, or matters connected with such activities, to which, in the
Parliamentary Committee’s opinion, the Parliament’s attention should be
directed; or
(ii) the operation of the
corporations legislation (other than the excluded provisions), or of any other
law of the Commonwealth, of a State or Territory or of a foreign country that
appears to the Parliamentary Committee to affect significantly the operation of
the corporations legislation (other than the excluded provisions); and
(b) to examine each annual report that
is prepared by a body established by this Act and of which a copy has been laid
before a House, and to report to both Houses on matters that appear in, or
arise out of, that annual report and to which, in the Parliamentary Committee’s
opinion, the Parliament’s attention should be directed; and
(c) to inquire into any question in
connection with its duties that is referred to it by a House, and to report to
that House on that question.
Part 15—Miscellaneous
243B
Offences committed partly in and partly out of the jurisdiction
Where:
(a) a person does or omits to do an
act outside Australia; and
(b) if that person had done or omitted
to do that act in Australia, the person would, by reason of also having done or
omitted to do an act in Australia, have been guilty of an offence against this
Act;
the person is guilty of that offence.
243D
Financial transaction reports
Neither subsection 16(5A) nor (5AA) of
the Financial Transactions Reports Act 1988 prohibits a cash dealer from
communicating or disclosing a fact or information referred to in either of
those subsections:
(a) to ASIC; or
(b) to a market licensee; or
(c) to a CS facility licensee; or
(d) to an operator of a market
exempted under section 791C of the Corporations Act; or
(e) to an operator of a clearing and
settlement facility exempted under section 820C of the Corporations Act;
or
(f) in accordance with conditions
imposed on an Australian market licence under section 796A of the
Corporations Act; or
(g) in accordance with conditions
imposed on a CS facility licence under section 825A of the Corporations
Act; or
(h) in accordance with conditions on
an exemption made under section 791C of the Corporations Act from the
requirement to hold an Australian market licence; or
(i) in accordance with conditions on
an exemption made under section 820C of the Corporations Act from the
requirement to hold an Australian CS facility licence; or
(j) as prescribed by regulations made
for the purposes of this paragraph.
243E
Suspicious matters reports under the Anti‑Money Laundering and Counter‑Terrorism
Financing Act 2006
Section 123 of the Anti‑Money
Laundering and Counter‑Terrorism Financing Act 2006 does not prohibit a
person from disclosing a fact or information referred to in that section:
(a) to ASIC; or
(b) to a market licensee; or
(c) to a CS facility licensee; or
(d) to an operator of a market
exempted under section 791C of the Corporations Act; or
(e) to an operator of a clearing and
settlement facility exempted under section 820C of the Corporations Act;
or
(f) in accordance with conditions
imposed on an Australian market licence under section 796A of the
Corporations Act; or
(g) in accordance with conditions
imposed on an Australian CS facility licence under section 825A of the
Corporations Act; or
(h) in accordance with conditions on
an exemption made under section 791C of the Corporations Act from the
requirement to hold an Australian market licence; or
(i) in accordance with conditions on
an exemption made under section 820C of the Corporations Act from the
requirement to hold an Australian CS facility licence; or
(j) as prescribed by regulations made
for the purposes of this paragraph.
244
Review by Administrative Appeals Tribunal of certain decisions
(1) In this section:
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
(2) Applications may be made to the
Administrative Appeals Tribunal for review of a decision by ASIC:
(a) to make an order under section 72
or 73; or
(b) to make an order under subsection
75(1) varying an order in force under Division 8 of Part 3; or
(c) to refuse to vary or revoke an
order in force under Division 8 of Part 3.
244A
Notice of reviewable decision and review rights
(1) This section applies if ASIC makes a
decision to which subsection 244(2) applies.
(2) Subject to subsection (3), ASIC 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 Administrative Appeals Tribunal.
(3) Subsection (2) does not require ASIC
to give notice to a person affected by the decision, or to the persons in a
class of persons affected by the decision, if ASIC 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.
245 Validity
of certain actions
Nothing done by or in relation to a
person who has been appointed to, or appointed to act in, an office under this
Act is invalid on the ground that:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
246
Liability for damages
(1) None of the following:
(aa) the Minister;
(a) ASIC;
(b) CAMAC;
(c) a member of ASIC;
(d) a member of CAMAC;
(e) a member of the Panel;
(f) a person appointed for the
purposes of this Act or a prescribed law of the Commonwealth, a State or a
Territory;
(g) a staff member or a person who is,
or is a member of, an ASIC delegate or is authorised to perform or exercise a
function or power of, or on behalf of, ASIC;
(h) a member of the staff referred to
in subsection 156(1), a person employed under subsection 156(3), a person
engaged under subsection 157(1) or any of the officers, employees and persons
who under section 158 are to assist CAMAC;
(i) a person who is:
(i) a member of staff of
the Office of the AASB engaged under section 235E; or
(ii) a consultant to the
Office of the AASB engaged under section 235F; or
(iii) a person assisting the
Office of the AASB under subsection 235F(3);
(j) a person who is:
(i) a member of staff of
the Office of the AUASB engaged under section 236DC; or
(ii) a consultant to the
Office of the AUASB engaged under section 236DD; or
(iii) a person assisting the
Office of the AUASB under subsection 236DD(3);
(k) an officer or employee of an
Agency (within the meaning of the Public Service Act 1999), or of an
authority of the Commonwealth, whose services are made available to the FRC or
the Disciplinary Board in connection with the performance or exercise of any of
its functions or powers;
(l) a person engaged by an Agency
(within the meaning of the Public Service Act 1999), or of an authority
of the Commonwealth, to provide services to the FRC in connection with the
performance or exercise of any of its functions or powers;
is liable to an action or other proceeding for damages for
or in relation to an act done or omitted in good faith in performance or
purported performance of any function, or in exercise or purported exercise of
any power, conferred or expressed to be conferred by or under the corporations
legislation, or a prescribed law of the Commonwealth, a State or a Territory.
(2) Without limiting paragraph (1)(f),
the following are taken to be persons appointed for the purposes of this Act:
(a) a member of the Disciplinary
Board;
(b) a member of the FRC or of a
committee or advisory group established by the FRC;
(c) a member of the AASB or of a
committee, advisory panel or consultative group established by the AASB or by
the Office of the AASB;
(d) a member of the AUASB or of a
committee, advisory panel or consultative group established by the AUASB or by
the Office of the AUASB.
247
Duplicate seals
(1) As well as ASIC’s common seal, there are
to be such duplicates of that seal as ASIC directs.
(2) A document to which a duplicate seal of
ASIC is affixed is taken to have ASIC’s common seal affixed to it.
248
Judicial notice of ASIC’s seal and members’ signatures
(1) A court must take judicial notice of
ASIC’s common seal affixed to a document and, unless the contrary is
established, must presume that it was duly affixed.
(2) A court
must take judicial notice of:
(a) the official signature of a person
who holds or has held, or is acting or has acted in, the office of member,
Chairperson or Deputy Chairperson; and
(b) the fact that the person holds or
has held, or is acting or has acted in, that office;
if a signature purporting to be the person’s signature
appears on an official document.
(3) In this section:
(a) court includes a
tribunal; and
(b) a reference, in relation to a
tribunal, to taking judicial notice is a reference to taking the same notice as
would be taken by a court.
251
The regulations
(1) The Governor‑General may make regulations
prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) Regulations providing for allowances and
expenses for the purposes of section 89 or subsection 192(6) or 218(4) may
provide for those allowances and expenses by reference to a scale of expenses
for witnesses who attend before a court specified in the regulations, being a
federal court, or the Supreme Court of a State or Territory.
Part 16—Transition from the old ASIC legislation
Division 1—Preliminary
253
Object of Part
(1) The object of this Part is to provide for
a smooth transition from the regime provided for in the old ASIC legislation of
the States in this jurisdiction and the Northern Territory to the regime
provided for in the new ASIC 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 ASIC legislation had,
from time to time when it was in force, been valid Commonwealth legislation
applying throughout the States in this jurisdiction and the Northern Territory;
and
(b) the new ASIC legislation (to the
extent it contains provisions that correspond to provisions of the old ASIC
legislation as in force immediately before the commencement) were a
continuation of that old ASIC legislation as so applying.
Note: The new ASIC legislation contains provisions
that correspond to most of the provisions of the old ASIC legislation.
Generally, the only exceptions to this are provisions of the old ASIC
legislation that related to the fact that the ASIC Law operated separately in
each of the States and Territories (rather than as a single national law).
(2) The object of this Part is also to
provide for a smooth transition from the regime provided for in the old ASIC
legislation of the Commonwealth to the regime provided for in the new ASIC
legislation as if the new ASIC legislation (to the extent it contains
provisions that correspond to provisions of the old ASIC legislation as in
force immediately before the commencement) were a continuation of that old ASIC
legislation as so applying.
(3) 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.
254
Definitions
(1) In this Part:
carried over provision of the old ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory means a provision of that legislation that:
(a) was in force immediately before
the commencement; and
(b) corresponds to a provision of the
new ASIC 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 ASIC legislation means:
(a) this Act; and
(b) the new ASIC 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 subparagraphs (a)(ii) and (b)(iii) of the definition of old
ASIC legislation, being those laws as they apply after the commencement;
and
(d) the preserved instruments.
new ASIC Regulations means the regulations
that, because of section 264, have effect as if they were made under
section 251 of this Act.
old application Act for a State or the Northern 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 Northern Territory—the Corporations (Northern Territory) Act 1990 of the Northern Territory as in force from time to time before the commencement.
old ASIC Act means the Australian
Securities and Investments Commission Act 1989 as in force from time to
time before the commencement.
old ASIC Law of a State in this jurisdiction
or the Northern Territory means the ASIC Law or ASC Law of the State or
Territory (within the meaning of the application Act of the State or Territory
as in force from time to time before the commencement).
old ASIC legislation means:
(a) when used in relation to the
Commonwealth—the following:
(i) the old ASIC Act and
old ASIC Regulations, and any instruments made under that Act or those
Regulations (including provisions as they had effect as the ASIC Law or ASIC
Regulations of the Australian Capital Territory);
(ii) the laws of the
Commonwealth as applying of their own force in relation to the old ASIC Act and
old ASIC Regulations of the Commonwealth from time to time before the
commencement, and any instruments made under those laws as so applying; and
(b) when used in relation to a State
in this jurisdiction or the Northern Territory—the following:
(i) the old ASIC Law and
old ASIC Regulations of the State or Territory, and any instruments made under
that Law or those Regulations; and
(ii) the old application
Act for the State or Territory, and any instruments made under that Act; and
(iii) the laws of the
Commonwealth as they applied in relation to the old ASIC Law and the old ASIC
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
or Division 6 of Part 11 of the old Application Act for that State or
Territory, and any instruments made under those laws as so applying.
old ASIC Regulations means:
(a) when used in relation to the
Commonwealth—the regulations made under section 251 or 252 of the old ASIC
Act as in force from time to time before the commencement (including
regulations as they had effect as the ASIC Regulations of the Australian
Capital Territory); and
(b) when used in relation to a State
in this jurisdiction or the Northern Territory—the ASIC Regulations or ASC
Regulations of that State or Territory (within the meaning of the old
application Act for the State or Territory) as in force from time to time
before the commencement.
old corporations legislation has the meaning
given by subsection 1371(1) of the Corporations Act 2001.
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 276(1) or 277(1).
preserved instrument means an instrument
that, because of section 275, has effect after the commencement as if it
were made under a provision of the new ASIC legislation.
right includes an interest or status.
substituted right or liability has the
meaning given by subsection 276(2) or 277(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 ASIC legislation of the Commonwealth, a State or the Northern
Territory corresponds to a provision or part (the new
provision or part) of the new ASIC 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 ASIC
legislation that may be corresponding provisions for the purposes of this Part
is affected by sections 277 and 284, which take certain provisions of the
old ASIC legislation to be included in the new ASIC 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, or a relevant previous law,
and the other does not;
(d) other differences that are
attributable to the fact that the new ASIC legislation applies as a
Commonwealth law throughout Australia;
(e) 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 ASIC legislation of the Commonwealth, a State or
the Northern Territory does, or does not, correspond to a specified provision
of the new ASIC legislation.
255
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: 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 ASIC
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 ASIC 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.
256
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 ASIC legislation (or a provision of that
legislation) of the Commonwealth, a State in this jurisdiction or the Northern Territory; or
(ii) to give something an
effect for the purposes of the old ASIC legislation (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.
257
Existence of several versions of the old ASIC legislation does not result in
this Part operating to take the same thing to be done several times under the
new ASIC legislation etc.
If, apart from this section, a provision
of this Part (the transitional provision) would, because the
Commonwealth, each State in this jurisdiction and the Northern Territory had
its own old ASIC 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 the new ASIC legislation; 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 ASIC 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 ASIC 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.
258
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 before
the commencement, the amount of a penalty unit in respect of that offence is
$100.
(2) This section has effect despite section 4AA
of the Crimes Act 1914.
259
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 bodies established etc. or persons appointed
under the old ASIC Act
260
Division has effect subject to Division 7 regulations
This Division has effect subject to
regulations made for the purposes of Division 7.
261
Carrying over bodies established under the old ASIC Act
A body that was established under the
old ASIC Act continues in existence as if it had been established under this
Act.
262
Carrying over the Chairman and Deputy Chairman of the Financial Reporting
Council
(1) A member of the FRC who was Chairman of
the FRC immediately before the commencement continues as if he or she had been
appointed as Chair of the FRC under this Act.
(2) A member of the FRC who was Deputy
Chairman of the FRC immediately before the commencement continues as if he or
she had been appointed as Deputy Chair of the FRC under this Act.
Division 3—Carrying over the old ASIC Regulations
263
Division has effect subject to Division 7 regulations
This Division has effect subject to
regulations made for the purposes of Division 7.
264
Old ASIC Regulations continue to have effect
The old ASIC Regulations that were made
for the purposes of provisions of the old ASIC Act 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 251 of this Act; and
(b) they were made for the purposes of
the corresponding provisions of this Act.
Division 4—Court proceedings and orders
265
Division has effect subject to Division 7 regulations
This Division has effect subject to
regulations made for the purposes of Division 7.
266
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 ASIC 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 ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern
Territory;
(b) a proceeding in respect of a
matter arising under Division 2 of Part 2 of the old ASIC Act;
(c) 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 ASIC legislation of the
Commonwealth, a State in this jurisdiction or the Northern Territory applied;
(ca) a proceeding in relation to a
matter to which a provision of the old ASIC legislation of the Commonwealth, a
State in this jurisdiction or the Northern Territory 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;
(cb) any other proceeding in relation to
a matter to which a provision of the old ASIC legislation of a State in this
jurisdiction applied that was in the exercise of federal jurisdiction;
(cc) any other proceeding in relation
to a matter to which a provision of the old ASIC legislation of the Northern Territory applied that would be covered by paragraph (cb) if the Northern Territory had been a State;
(cd) any other proceeding under the old
ASIC legislation of the Commonwealth that was in the exercise of federal
jurisdiction;
(d) a proceeding in the court’s
accrued federal jurisdiction in relation to a matter to which a provision of
the old ASIC legislation of the Commonwealth, a State in this jurisdiction or
the Northern Territory 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.
267
Treatment of court proceedings under or related to the old ASIC
legislation—proceedings other than federal ASIC proceedings
(1) This section applies to a proceeding,
other than a federal ASIC 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 ASIC legislation of the Commonwealth, a State in this jurisdiction or
the Northern Territory; or
(ii) brought as, or
connected with, a prosecution for an offence against a provision of the old
ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; 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 ASIC
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 ASIC 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 ASIC 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 and liabilities.
Note 1: See sections 276 and 277 for the creation
of the substituted rights and liabilities.
Note 2: In all cases, there will be a provision of the
new ASIC legislation that corresponds to the relevant old provision, either
because:
(a) the new ASIC legislation actually contains a
provision that corresponds to the relevant old provision; or
(b) the new ASIC legislation, because of section 277
or 284, 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 continued 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 ASIC
legislation.
268
Treatment of court proceedings under or related to the old ASIC
legislation—federal ASIC 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 ASIC
proceeding that related to a matter to which a provision of the old ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory 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 ASIC
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 ASIC
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 is taken always to have related, to the
substituted rights and liabilities in relation to those pre‑commencement rights
and liabilities.
Note 1: See sections 276 and 277 for the creation
of substituted rights and liabilities.
Note 2: In all cases, there will be a provision of the
new ASIC legislation that corresponds to the relevant old provision, either
because:
(a) the new ASIC legislation actually contains a
provision that corresponds to the relevant old provision; or
(b) the new ASIC legislation, because of section 277
or 284, 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.
268A
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 ASIC
proceeding that related to matter to which a provision of the old ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory applied;
(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.
268B
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 ASIC
proceeding that related to matter to which a provision of the old ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory 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 ASIC legislation ceasing to have
effect.
(2) This section does not limit the operation
of section 268 in relation to the decision or order.
269
References to proceedings and orders in the new ASIC legislation
(1) Subject to subsection (5), a
reference in the new ASIC 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 ASIC 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 ASIC legislation
of the Commonwealth, a State or the Northern Territory; or
(b) after the commencement under or in
relation to the corresponding part or provision of the old ASIC legislation of
the Commonwealth, a State in this jurisdiction or the Northern Territory, as
that legislation continues to have effect after the commencement.
(2) Subject to subsections (3), (4) and
(5), a reference in the new ASIC legislation to an order made by a court under
or in relation to a part or provision of the new ASIC 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 ASIC legislation
of the Commonwealth, a State or the Northern Territory; or
(b) after the commencement under or in
relation to the corresponding part or provision of the old ASIC legislation of
the Commonwealth, a State in this jurisdiction or the Northern Territory, 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 ASIC 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 ASIC 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
ASIC 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 ASIC legislation.
Division 5—Functions and powers of ASIC
270
Division has effect subject to Division 7 regulations
This Division has effect subject to
regulations made for the purposes of Division 7.
271
Non‑federal proceedings etc.
(1) ASIC has the functions and powers in
relation to a non‑federal proceeding that are expressed to be conferred on it
by or under a law of the Commonwealth or the Northern Territory.
(2) ASIC also has the functions and powers in
relation to a non‑federal proceeding that are expressed to be conferred on it
by or under a law of a State in this jurisdiction. However, ASIC:
(a) is not subject to any directions
in the performance of such functions or the exercise of such powers; and
(b) is not under a duty to perform
such functions or exercise such powers.
(3) If a Minister of a State or Territory
appoints a person to bring or continue a non‑federal proceeding in the State or
Territory, ASIC may give the person any information and documents that ASIC has
in relation to the proceeding.
(4) In this section:
appeal or review proceeding has the same
meaning as in section 266.
enforcement proceeding has the same meaning
as in section 266.
non‑federal proceeding means:
(a) a proceeding in relation to which
paragraphs 267(1)(a), (b) and (d) are satisfied but paragraph 267(1)(e) is not
satisfied; or
(aa) a proceeding in relation to which
paragraphs 1383(1)(a), (b) and (d) of the Corporations Act 2001 are
satisfied but paragraph 1383(1)(e) of that Act is not satisfied;
(b) an enforcement proceeding, or an
appeal or review proceeding, in relation to an order of a court made before the
commencement in relation to a proceeding that was:
(i) under a provision of
the old ASIC legislation of the Commonwealth, a State in this jurisdiction or
the Northern Territory; or
(ia) 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
ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; or
(iii) 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; or
(c) an enforcement proceeding, or an
appeal or review proceeding, in relation to an order of a court made after the
commencement in relation to a proceeding referred to in paragraph (a) or
(aa).
272
NCSC’s functions and powers
(1) ASIC has the functions and powers
expressed to be conferred on the NCSC by or under any Act, as in force
immediately before the commencement, that was a relevant Act for the purposes
of the Companies and Securities (Interpretation and Miscellaneous
Provisions) Act 1980 as in force immediately before the commencement.
(2) ASIC also has the functions and powers
expressed to be conferred on the NCSC by or under any law, as in force
immediately before the commencement, of a State or the Northern Territory that
corresponds to an Act that was a relevant Act for the purposes of the Companies
and Securities (Interpretation and Miscellaneous Provisions) Act 1980 as in
force immediately before the commencement. However, ASIC:
(a) is not subject to any directions
in the performance of such functions or the exercise of such powers; and
(b) is not under a duty to perform
such functions or exercise such powers.
Division 6—General transitional provisions relating to other things done
etc. under the old ASIC legislation
273
Provisions in this Division have effect subject to the other Divisions
(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; or
(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 266,
in respect of such an order; or
(d) 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) Except as mentioned in subsections (1)
and (2), 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.
274
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 253. 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.
275
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 ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory; 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 ASIC legislation, as if it were done by, under, or
for the purposes of, the corresponding provision of the new ASIC
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 (including an investigation, but not
including the commencement of a proceeding in a court); and
(f) the making of an agreement; 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 ASIC legislation of the Commonwealth, a State
or the Northern 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 making
of an agreement—the agreement was still in force 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 ASIC legislation of the Commonwealth,
the State or the Northern Territory.
(5) The regulations may provide that a
specified thing done by, under, or for the purposes of, a carried over
provision of the old ASIC legislation of the Commonwealth, a State in this
jurisdiction or the Northern Territory did, or did not, have an ongoing
significance immediately before the commencement for the purposes of that
legislation.
276
Creation of equivalent rights and liabilities to those that existed before the
commencement under carried over provisions of the old ASIC 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 carried over provision of the old ASIC legislation of the Commonwealth,
a State in this jurisdiction or the Northern Territory; 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 liability, under the
corresponding provision of the new ASIC 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 ASIC legislation, that same time limit
(calculated from the same starting point) will apply under the new ASIC
legislation to the substituted right or liability—see subsection 278(3).
(3) A procedure, proceeding or remedy in
respect of the right or liability may be instituted after the commencement
under the new ASIC 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 267 and 268.
277
Creation of equivalent rights and liabilities to those that existed before the
commencement under repealed provisions of the old ASIC legislation
(1) This section applies 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 ASIC legislation of the Commonwealth, a State in
this jurisdiction or the Northern Territory 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 ASIC legislation is taken to include:
(a) the provision of the old ASIC
legislation (with such modifications (if any) as are necessary) under which the
right or liability was acquired, accrued or incurred; and
(b) the other provisions of the old
ASIC legislation (with such modifications (if any) as are necessary) that
applied in relation to the 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 ASIC 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 ASIC legislation, that same time limit
(calculated from the same starting point) will apply under the new ASIC
legislation to the substituted right or liability—see subsection 278(3).
(4) A procedure, proceeding or remedy in
respect of the right or liability may be instituted after the commencement
under the provisions taken to be included in the new ASIC 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 267 and 268.
278
Old ASIC legislation time limits continue to run
(1) An old ASIC 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 ASIC
legislation 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 ASIC legislation.
(2) If:
(a) under the old ASIC legislation, a
process, a status of a person or body, 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 ASIC
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 ASIC 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 ASIC legislation time limit includes:
(a) a period for the doing of a thing
specified or determined under a provision of the old ASIC legislation of the
Commonwealth, a State in this jurisdiction or the Northern Territory; or
(b) a period specified or determined
under a provision of the old ASIC legislation of the Commonwealth, a State in
this jurisdiction or the Northern Territory as the duration of a particular
instrument or status.
279
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 ASIC legislation
of the Commonwealth, a State in this jurisdiction or the Northern Territory;
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 interpretative provision);
has that same significance after the commencement for the
purposes of the provision of the new ASIC legislation that corresponds to that
carried over provision.
(2) Without limiting subsection (1), an
event, circumstance or other thing has a particular significance for the
purposes of a carried over provision of the old ASIC legislation of the
Commonwealth, a State in this jurisdiction or the Northern Territory if:
(a) the carried over provision creates
an obligation in respect of the event, circumstance or thing (whenever it
arose); or
(b) the carried over provision
provides for the event, circumstance or thing to be dealt with in a particular
way; or
(c) the carried over provision states
that the event, circumstance or thing (whenever it arose) is to be disregarded
for the purposes of that provision or not covered by that provision.
280
References in the new ASIC 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 ASIC 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 the contrary
intention appears. 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.
(2) Nothing in subsection (1) is taken
to produce a result that a right or liability exists under a provision of the
new ASIC 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 276 or 277.
(3) The regulations may provide that subsection (1)
does not apply in relation to a particular reference or class of references in
the new ASIC legislation.
281
References in the new ASIC legislation to that legislation or the new
corporations legislation generally include references to corresponding
provisions of the old ASIC legislation or old corporations legislation
(1) Subject to subsection (4), a
reference in the new ASIC legislation to:
(a) an Act, or to regulations or
another 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 ASIC
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, a State in this jurisdiction or
the Northern Territory.
(2) Subject to subsection (4), a
reference in the new ASIC legislation to:
(a) an Act, or to regulations or some
other 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.
(3) In subsection (2):
(a) new corporations legislation
and old corporations legislation have the same meanings as they
have in Part 10.1 of the Corporations Act; and
(b) the question whether a provision
or part of the old corporations legislation corresponds to a provision of part
of the new corporations legislation is to be determined in the same way as it
is determined for the purposes of Part 10.1 of the Corporations
Act.
(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 ASIC legislation.
282
Carrying over references to corresponding previous laws or relevant previous
laws
(1) If a carried over provision of the old
ASIC legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory 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 a thing done by, under, or for the purposes of, such a law; or
(b) a relevant previous law (as
defined for the purposes of that provision or provisions including that provision),
or a thing done by, under, or for the purposes of, such a law;
the corresponding provision of the new ASIC 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 ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern Territory 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 section 15
to a “previous law corresponding to”;
(b) any other references prescribed by
the regulations for the purposes of this subsection.
283
References to ASIC 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 ASIC legislation (whether the
reference is in general terms or in relation to the Commonwealth, or 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 ASIC legislation
(unless there is no such corresponding part, provision or provisions).
Note: In this Part, instrument means
an instrument of a legislative or administrative character (see the definition
in section 254), or any other document.
(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”.
284
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 ASIC Act, the old ASIC Law of the States in this
jurisdiction and the old ASIC Law of the Northern Territory (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 that Act and
those Laws.
(2) Without limiting subsection (1) (but
subject to subsection (3)), if a transitional provision of the old ASIC
Act, the old ASIC Law of the States in this jurisdiction or the old ASIC Law of
the Northern Territory 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 or liabilities are created by
sections 276 and 277.
(3) The regulations may determine how a
matter dealt with in a transitional provision of the old ASIC Act, the old ASIC
Law of the States in this jurisdiction or the old ASIC Law of the Northern Territory is to be dealt with under or in relation to the new ASIC 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 258.
(4) For the purpose of determining whether
the new ASIC legislation includes a provision that corresponds to a provision
of the old ASIC legislation of the Commonwealth, a State in this jurisdiction
or the Northern Territory, and for the purpose of any reference in this Part to
a corresponding provision of the new ASIC legislation, this Act is taken to
include the transitional provisions of the old ASIC legislation of the Commonwealth,
a State in this jurisdiction or the Northern Territory, 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 276 or 277.
(6) Subject to subsection (7), for the
purposes of this section, a transitional provision is any of the
following provisions of the old ASIC Act, the old ASIC Law of the States in
this jurisdiction and the old ASIC Law of the Northern Territory:
(a) section 12AB;
(b) subsection 12GL(2);
(c) section 12IA;
(d) subsection 13(3);
(e) subsection 13(5);
(f) section 14A;
(g) subsection 51(2);
(h) subsection 68(4);
(i) subsection 68(5);
(j) section 122A;
(k) section 127A;
(l) subsection 246(2);
(m) Part 16;
(n) Part 17;
(o) Part 18.
(7) The regulations may provide that certain
provisions are to be taken to be included in, or omitted from, the list in subsection (6).
The list then has effect as if the provisions were so included in it or omitted
from it.
Division 7—Regulations dealing with transitional matters
285
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 ASIC legislation of the Commonwealth, a State in this
jurisdiction and the Northern Territory to the application of provisions of the
new ASIC legislation. The regulations have effect despite anything else in this
Part, other than section 258.
(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
ASIC legislation, as in force immediately before the commencement or at some
earlier time; or
(ii) provisions of the new
ASIC 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 ASIC legislation.
(3) The regulations may provide that certain
provisions of this Part are taken to be modified as set out in the regulations.
The provisions then have effect as if they were so modified.
(4) Despite subsection 12(2) of the Legislative
Instruments Act 2003, regulations made 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 17—Transitional provisions relating to the Corporate Law
Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004
285A
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 of the amending Act.
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.
286
Application of new subsection 225A(5)
Subsection 225A(5) applies to audits
conducted in relation to financial reports for financial years that end on or
after 1 July 2004.
287
Application of Part 8 of Schedule 1 to the amending Act
(1) The person holding office as the
Chairperson of the Companies Auditors and Liquidators Disciplinary Board under
paragraph 203(1)(a) of the old Act immediately before the Schedule 1
commencement continues to hold office on and after the Schedule 1 commencement
for the remainder of the term of the person’s appointment as if the person had
been appointed under paragraph 203(1)(a) of this Act as amended by Part 8
of Schedule 1 to the amending Act.
(2) The person holding office as a member of
the Companies Auditors and Liquidators Disciplinary Board under paragraph
203(1)(b) of the old Act immediately before the Schedule 1 commencement
continues to hold office on and after the Schedule 1 commencement for the
remainder of the term of the person’s appointment as if the person had been
appointed under paragraph 203(1)(c) of this Act as amended by Part 8 of
Schedule 1 to the amending Act.
(3) The person holding office as a member of
the Companies Auditors and Liquidators Disciplinary Board under paragraph
203(1)(c) of the old Act immediately before the Schedule 1 commencement
continues to hold office on and after the Schedule 1 commencement for the
remainder of the term of the person’s appointment as if the person had been
appointed under paragraph 203(1)(d) of this Act as amended by Part 8 of
Schedule 1 to the amending Act.
(4) Despite the repeal of section 209 of
the old Act by item 146 of Schedule 1 to the amending Act:
(a) a person holding office as a
deputy of a member under that section immediately before the Schedule 1
commencement continues to hold office on and after the Schedule 1
commencement for the purposes of a hearing in relation to an application made
to the Companies Auditors and Liquidators Disciplinary Board before the
Schedule 1 commencement; and
(b) continues on and after the
Schedule 1 commencement to be entitled to attend meetings of the Board at
which the member is not present and, while so attending, to be taken to be a
member of the Board.
(5) The amendments made by items 148 and
156 to 175 of Schedule 1 to the amending Act apply to applications made to
the Companies Auditors and Liquidators Disciplinary Board on or after the
Schedule 1 commencement (regardless of when the circumstances to which the
application relates occurred).
288 Application
of Schedule 3 to the amending Act
The amendments made to this Act by
Schedule 3 to the amending Act apply to causes of action that arise on or
after the day on which that Schedule commences.
Part 18—Transitional provisions relating to the Corporations
Amendment (Corporate Reporting Reform) Act 2010
289
Definitions
In this Part:
amending Act means the Corporations
Amendment (Corporate Reporting Reform) Act 2010.
old Act means this Act as in force
immediately before the commencement of the amending Act.
Schedule 2 commencement means the day on
which Part 1 of Schedule 2 to the amending Act commences.
transition period means the period:
(a) beginning at the start of the day
Part 1 of Schedule 2 to the amending Act commences; and
(b) ending when there is no longer any
person holding an appointment as a member of the Companies Auditors and
Liquidators Disciplinary Board under paragraph 203(1)(c) or (d) of the old Act.
290
Application of Companies Auditors and Liquidators Disciplinary Board amendments
(1) The amendments made by items 1 to 5
of Schedule 2 to the amending Act do not apply until after the transition
period.
(2) During the transition period:
(a) a person holding an appointment as
a member of the Companies Auditors and Liquidators Disciplinary Board under
paragraph 203(1)(c) or (d) of the old Act immediately before the
Schedule 2 commencement continues to hold that appointment on and after
that commencement for the remainder of the term of the person’s appointment as
if those amendments had not been made; and
(b) paragraph (a) does not
prevent the Minister terminating the appointment under section 207 or the
person from resigning under section 206; and
(c) there are to be no more than 6
accounting members of the Companies Auditors and Liquidators Disciplinary
Board; and
(d) any member appointed after the
Schedule 2 commencement:
(i) must be selected by
the Minister; and
(ii) must be eligible to be
appointed under subsection 203(1B) as inserted by item 5 of
Schedule 2 to the amending Act; and
(e) accounting member
means:
(i) a member appointed
under paragraph (d); or
(ii) a member appointed
under paragraph 203(1)(c) or (d) of the old Act.
(3) After the transition period, accounting
member is taken to include a member appointed under
paragraph (2)(d).
291
Application of pre‑hearing conference amendments
The amendments made by items 7 and
8 of Schedule 2 to the amending Act apply in relation to conferences
conducted before, on or after the Schedule 2 commencement.