Australian Securities Commission Act 1989

No. 90 of 1989

An Act to establish an Australian Securities Commission, a Companies and Securities Advisory Committee and certain other bodies, and for other purposes

[Assented to 27 June 1989]

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Australian Securities Commission Act 1989.

Commencement

2. (1) Part 1 shall commence on the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act shall commence on a day, or respective days, to be fixed by Proclamation.

Objects

3. (1) The objects of this Act are:

(a) to establish an Australian Securities Commission to administer the laws of the Commonwealth relating to companies, securities and the futures industry;

(b) to provide for the functions, powers and business of the Commission;

(c) to establish a Companies and Securities Advisory Committee to provide informed and expert advice to the Minister about the content, operation and administration of those laws, about corporations and about the securities markets and futures markets; and

(d) to establish a Corporations and Securities Panel, a Companies Auditors and Liquidators Disciplinary Board, an Accounting Standards Review Board and a Parliamentary Joint Committee on Corporations and Securities.

(2) In performing its functions and exercising its powers, the Commission shall strive:

(a) to maintain, facilitate, and improve, the performance of companies, and of the securities markets and futures markets, in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy;

(b) to maintain the confidence of investors in the securities markets and futures markets by ensuring adequate protection for such investors;

(c) to achieve uniformity throughout Australia in how the Commission and its delegates perform those functions and exercise those powers;

(d) to administer national scheme laws effectively but with a minimum of procedural requirements;

(e) to receive, process, and store, efficiently and quickly, the documents lodged with, and the information given to, the Commission under national scheme laws;

(f) to ensure that those documents, and that information, are available as soon as possible for access by the public; and

(g) to take whatever action it can take, and is necessary, in order to enforce and give effect to national scheme laws.

Extension to external Territories

4. This Act extends to such external Territories (if any) as are prescribed.

Interpretation

5. (1) In this Act, unless the contrary intention appears:

“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;

“Advisory Committee” means the Companies and Securities Advisory Committee established by section 145;

“affairs”, in relation to a body corporate, has the same meaning as in section 260 of the Corporations Act 1989;

“agency” means an agency, authority, body or person;

“appropriate officer”, in relation to a State or Territory, means:

(a) in the case of a State—an appropriate Minister of the Crown of that State;

(b) in the case of the Capital Territory—the Minister administering the Seat of Government (Administration) Act 1910;

(c) in the case of the Northern Territory—an appropriate person holding Ministerial office within the meaning of the Northern Territory (Self-Government) Act 1978; or

(d) in the case of any other Territory—the Administrator of that Territory;

“assist”, in relation to a Commission delegate, means:

(a) to perform functions:

(i) as a member, officer or employee of the Commission delegate; and

(ii) in connection with the Commission delegate’s performance or exercise of a function or power delegated under section 102; or

(b) to perform services for the Commission delegate in connection with the Commission delegate’s performance or exercise of a function or power delegated under section 102;

“Australia” includes any external Territory to which this Act extends;

“books” includes:

(a) a register;

(b) accounts or accounting records, however compiled, recorded or stored;

(d) banker’s books; and

(e) any other record of information;

“Chairperson” means:

(a) except in Part 11 or in relation to the Disciplinary Board—the Chairperson of the Commission; and

(b) in Part 11 or in relation to the Disciplinary Board—the Chairperson of the Disciplinary Board;

“Commission” means the Australian Securities Commission established by section 7;

“Commission delegate” means a person to whom, or a body to which, a function or power is delegated under section 102;

“company”, except in section 11 or in the expression “the administration of companies”, means a body corporate that is a company within the meaning of the Corporations Act 1989;

“contravention”, in relation to a law of the Commonwealth, includes an ancillary offence relating to an offence against that law;

“Convenor” means the Convenor of the Advisory Committee;

“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 the Commission;

“Director” means the Director of the Review Board;

“Disciplinary Board” means the Companies Auditors and Liquidators Disciplinary Board established by section 202;

“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 a national scheme law or a corresponding law; 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;

“examination”, in this section and Part 3, means an examination of a person pursuant to a requirement made under section 19;

“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;

“federal proceeding” means a proceeding:

(a) in a court exercising federal jurisdiction;

(b) in a court of a Territory; or

“foreign country” means a country outside Australia and the external Territories, or a part of such a country;

“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 the Commission 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;

“investigate”, in relation to the Commission, means investigate in the course of performing or exercising any of the Commission’s functions and powers;

“meeting” means:

(a) in Part 4—a meeting of the Commission;

(b) in Part 9—a meeting of the Advisory Committee;

(d) in Part 12—a meeting of the Review 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, the Advisory Committee, the Panel, the Disciplinary Board, the Review Board or the Parliamentary Committee—a member of the Commission;

(b) in Part 9 or in relation to the Advisory Committee—a member of the Advisory Committee;

(d) in Part 11 or in relation to the Disciplinary Board—the Chairperson or any other member of the Disciplinary Board;

(e) in Part 12 or in relation to the Review Board—the Director or any other member of the Review Board; and

(f) in Part 14 or in relation to the Parliamentary Committee—a member of the Parliamentary Committee;

“national scheme law” means:

(a) this Act;

(b) a law of a kind referred to in subsection 11 (1); or

“officer”, in relation to a body corporate, includes:

(a) a director, secretary, executive officer or employee of the body;

(b) a receiver, or a receiver and manager, of property of the body;

(d) a liquidator, or a provisional liquidator, of the body; and

(e) a trustee or other person administering a compromise or arrangement made between the body and any other person or persons;

“Panel” means the Corporations and Securities Panel;

“Parliamentary Committee” means the Parliamentary Joint Committee on Corporations and Securities;

“power” includes an authority;

“President” means the President of the Panel;

“proceeding” means:

(a) a proceeding in a federal court or a court of a State or Territory; or

(b) a proceeding or hearing before, or an examination by or before, a tribunal;

whether or not the proceeding, hearing or examination is under or for the purposes of a law of the Commonwealth or a Territory and 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;

“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;

“report” includes an interim report;

“Review Board” means the Accounting Standards Review Board established by section 224;

“staff member” means:

(a) a member of the staff referred to in subsection 120 (1) or a person employed under subsection 120 (3);

(b) a person engaged under subsection 121 (1); or

“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;

“Territory” means:

(a) the Capital Territory; or

(b) an external Territory to which this Act extends;

“this Act” includes the regulations;

“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;

“trust money” means money the Commission receives or holds on trust;

“witness”, in relation to a hearing before the Commission or the Panel, means a person appearing at the hearing 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) Subject to this Act, an expression has the same meaning in this Act as in the Corporations Act 1989.

(3) Except so far as the contrary intention appears in this Act, Parts 1.2 and 1.3 of the Corporations Act 1989 apply for the purposes of this Act as if this Act and that Act constituted a single Act.

Giving information

6. A reference in this Act to giving information includes a reference to:

(a) explaining or stating a matter;

(b) identifying a person, matter or thing;

(d) answering a question.

PART 2—THE COMMISSION AND ITS FUNCTIONS AND POWERS

Establishment

7. An Australian Securities Commission is established.

Commission is a body corporate

8. The Commission:

(a) is a body corporate, with perpetual succession;

(b) shall have a common seal;

(d) may sue and be sued in its corporate name.

Membership

9. (1) The Commission shall consist of not fewer than 3 nor more than 8 members.

(2) The Governor-General shall appoint the members on the nomination of the Minister.

(3) At least 3 of the members shall 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 shall 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, business, the administration of companies, the financial markets, law, economics and accounting.

(5) The performance of the functions or the exercise of the powers of the Commission 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 shall be deemed to be a member.

Chairperson and Deputy Chairperson

10. (1) The Governor-General shall appoint as Chairperson of the Commission a person who is, or is to be, a full-time member and may appoint as Deputy Chairperson of the Commission a person (other than the Chairperson) who is, or is to be, a full-time member.

(2) The Chairperson may be referred to as the Chairman or Chairwoman, as the case requires, and the Deputy Chairperson may be referred to as the Deputy Chairman or Deputy Chairwoman, as the case requires.

Functions and powers

11. (1) The Commission has such functions as are conferred on it by or under a law of the Commonwealth of which the Commission has the general administration and that deals with, or with matters including, any or all of the following:

(a) the formation of companies or close corporations;

(b) the regulation of bodies corporate;

(d) the regulation of the securities industry;

(e) the regulation of the futures industry;

(f) matters incidental to a matter referred to in a preceding paragraph.

(2) The Commission 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 a national scheme law that, in the Commission’s opinion, are needed to overcome, or would assist in overcoming, any problems that the Commission has encountered in the course of performing or exercising any of its functions and powers.

(3) The Commission 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) The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions.

(5) Without limiting the generality of subsection (3) or (4), the Commission also has such powers as are conferred on it by or under a national scheme law.

(6) Subject to this Act, the Commission has the general administration of this Act.

Directions by Minister

12. (1) The Minister may give the Commission a written direction about policies it should pursue, or priorities it should follow, in performing or exercising any of its functions or powers.

(2) The Minister shall not give a direction under subsection (1) unless he or she has:

(a) notified the Commission 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 shall not give a direction under subsection (1) about a particular case.

(4) The Commission shall comply with a direction under subsection (1).

(5) The Minister shall 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.

PART 3—INVESTIGATIONS AND INFORMATION-GATHERING

Division 1—Investigations

General powers of investigation

13. (1) The Commission may make such investigation as it thinks expedient for the due administration of a national scheme law where it has reason to suspect that there may have been committed:

(a) a contravention of a national scheme law; or

(b) a contravention of a law of the Commonwealth or of a State or Territory, 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, securities or futures contracts.

(2) Where the Commission has reason to suspect that unacceptable circumstances within the meaning of Part 6.9 of the Corporations Act 1989 have, or may have, occurred, the Commission may make such investigation as it thinks expedient:

(a) for the purposes of determining whether or not to make an application under subsection 733 (1) or 734 (2) of that Act; or

(b) otherwise for the due administration of a national scheme law.

Minister may direct investigations

14. (1) Where, in the Minister’s opinion, it is in the public interest for a particular matter to which subsection (2) applies to be investigated, he or she may by writing direct the Commission to investigate that matter.

(2) This subsection applies to a matter relating to:

(a) an alleged or suspected contravention of a national scheme law;

(b) an alleged or suspected contravention of a law of the Commonwealth or of a Territory, 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, securities or futures contracts;

(d) dealing in eligible securities;

(e) dealing in securities or futures contracts:

(i) by, or on behalf of, a corporation;

(ii) in eligible circumstances; or

(iii) on a stock market or futures market, as the case may be, conducted by a corporation or in eligible circumstances;

(f) the establishment or conducting of a stock market or futures market:

(i) by a corporation; or

(ii) in eligible circumstances;

(g) the provision of clearing house facilities for a futures market:

(i) by a corporation; or

(ii) in eligible circumstances;

(h) the provision of clearing house facilities for a futures market conducted:

(i) by a corporation; or

(ii) in eligible circumstances;

(j) the giving of advice, analyses or reports about eligible securities; or

(k) the giving, by or to a corporation, of advice, analyses, or reports about securities or futures contracts.

(3) The Commission shall comply with a direction under subsection (1).

(4) A direction under subsection (1) does not prevent the Commission from delegating a function or power.

Investigation after report of receiver or liquidator

15. Where a report has been lodged under section 422 or 533 of the Corporations Act 1989, the Commission 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 a law of the Commonwealth or a Territory.

Interim report on investigation

16. (1) Where, in the course of an investigation under this Division, the Commission forms the opinion that:

(a) a serious contravention of a law of the Commonwealth or a State or Territory has been committed;

(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 a national scheme law to be amended; it shall 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;

(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 law, and its reasons for that opinion;

and such other matters relating to, or arising out of, the investigation as it thinks fit.

(2) The Commission may prepare an interim report about an investigation under this Division and shall do so if the Minister so directs.

(3) A report under subsection (2) shall set out such matters relating to, or arising out of, the investigation as the Commission thinks fit or the Minister directs.

Final report on investigation

17. (1) At the end of an investigation under section 13 or 15, the Commission may prepare a report about the investigation and shall do so if the Minister so directs.

(2) At the end of an investigation under section 14, the Commission shall prepare a report about the investigation.

(3) A report under this section shall set out:

(a) the Commission’s findings about the matters investigated;

(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 the Commission thinks fit or the Minister directs.

Distribution of report

18. (1) As soon as practicable after preparing a report under this Division, the Commission shall 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, the Commission may give a copy of the whole or a part of the report to:

(a) the Australian Federal Police;

(b) the National Crime Authority;

(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, the Commission 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

Notice requiring appearance for examination

19. (1) This section applies where the Commission, 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) The Commission may, by written notice in the prescribed form given to the person, require the person:

(a) to give to the Commission 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.

(3) A notice given under subsection (2) shall:

(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.

Proceedings at examination

20. 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.

Requirements made of examinee

21. (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.

(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 the Commission is investigating, or is to investigate, under Division 1.

Examination to take place in private

22. (1) The examination shall 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 shall not be present at the examination unless he or she:

(a) is the inspector, the examinee or a member;

(b) is a staff member approved by the Commission; or

(i) a direction under subsection (1); or

(ii) subsection 23 (1).

Penalty: $1,000 or imprisonment for 3 months, or both.

Examinee’s lawyer may attend

23. (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.

Record of examination

24. (1) The inspector may, and shall 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 shall, 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.

Giving to other persons copies of record

25. (1) The Commission 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 the Commission 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 the Commission 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, shall 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: $1,000 or imprisonment for 3 months, or both.

(3) The Commission 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.

Copies given subject to conditions

26. 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, shall comply with the conditions.

Penalty: $1,000 or imprisonment for 3 months, or both.

Record to accompany report

27. (1) If a report about the investigation referred to in section 20 is prepared under section 17, each record (if any) of the examination shall accompany the report.

(2) If:

(a) in the Commission’s opinion, a statement made at the examination is relevant to any other investigation under Division 1;

(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 shall accompany the report.

Division 3—Inspection of books

When certain powers may be exercised

28. A power conferred by this Division (other than sections 29, 35 and 36) may only be exercised:

(a) for the purposes of the performance or exercise of any of the Commission’s functions and powers;

(b) for the purposes of ensuring compliance with a national scheme law;

(d) for the purposes of an investigation under Division 1.

Commission may inspect books without charge

29. (1) A book that a national scheme law requires a person to keep shall be open for inspection (without charge) by a person authorised in writing by the Commission.

(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.

(3) An authorisation under this section may be of general application or may be limited by reference to the books to be inspected.

Notice to produce books about affairs of body corporate

30. The Commission 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.

Notice to produce books about securities

31. (1) The Commission may give to:

(a) a securities exchange;

(b) a member of the board of a securities exchange;

(c) a person who is or has been (either alone or together with any other person or persons) a dealer, an investment adviser or a securities representative of a person;

(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;

(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 the Commission’s opinion, has been a party to a dealing in securities;

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 securities exchange;

(h) a dealing in securities;

(j) advice given, or an analysis or report issued or published, about securities;

(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 securities or accounts or records of a dealer or investment adviser.

(2) A reference in subsection (1) to a dealing in securities, or to a business carried on by a person, includes a reference to a dealing in securities by a person as a trustee, or to a business carried on by a person as a trustee, as the case may be.

Notice to produce books about futures contracts

32. (1) The Commission may give to:

(a) a futures exchange;

(b) a clearing house for a futures market;

(d) a member of the board of a body corporate that is a futures exchange, a clearing house for a futures market, or a futures association;

(e) a person who is or has been (either alone or together with any other person or persons) a futures broker, a futures adviser or a futures representative of a person;

(f) a nominee controlled by a person of a kind referred to in paragraph (e) or jointly controlled by 2 or more persons at least one of whom is such a person;

(g) an eligible person in relation to a person of a kind referred to in a preceding paragraph; or

(h) any other person who, in the Commission’s opinion, has been a party to a dealing in a futures contract;

a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to:

(j) the business or affairs of a futures exchange, of a clearing house for a futures market, or of a futures association;

(k) a dealing in a futures contract;

(m) advice given, or an analysis or report issued or published, about futures contracts;

(n) the character or financial position of, or a business carried on by, a person referred to in paragraph (e) or (f); or

(p) an audit of, or a report of an auditor about, a dealing in a futures contract or accounts or records of a futures broker or futures adviser.

(2) A reference in subsection (1) to a dealing in a futures contract, or to a business carried on by a person, includes a reference to a dealing in a futures contract by a person as a trustee, or to a business carried on by a person as a trustee, as the case may be.

Notice to produce documents in person’s possession

33. The Commission 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

(b) a matter referred to in any of paragraphs 31 (1) (g) to (m), inclusive, and 32 (1) (j) to (p), inclusive.

Commission may authorise persons to require production of books

34. (1) The Commission may by writing authorise a member or staff member to make a requirement of a kind that this Division empowers the Commission to make.

(2) An authorisation under this section may be of general application or may be limited by reference to either or both of the following:

(a) the persons of whom requirements may be made;

(b) the books production of which may be required.

(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, 31, 32 and 33:

(a) a reference to the Commission were a reference to the person;

(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

Application for warrant to seize books not produced

35. (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, books:

(a) whose production has been required under this Division; and

(b) that have not been produced in compliance with that requirement;

he or she may:

(d) 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.

Grant of warrant

36. (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:

(a) whose production has been required under this Division; and

(b) that have not been produced in compliance with that requirement.

(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;

(b) to search the premises;

(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 shall 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 shall:

(a) specify the premises and books referred to in subsection (1);

(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.

Powers where books produced or seized

37. (1) This section applies where:

(a) books are produced to a person under a requirement made under this Division;

(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));

(b) for any of the purposes referred to in paragraphs 28 (a), (b) and (d);

(c) 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) shall 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 the Commission 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 to the best of his or her knowledge and belief any matter about the compilation of any of the books or to which any of the books relate.

Powers where books not produced

38. 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, to the best of his or her knowledge and belief:

(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.

Power to require person to identify property of body corporate

39. 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, so far as the other person can do so:

(a) to identify property of the body; and

(b) to explain how the body has kept account of that property.

Division 4—Requirements to disclose information about securities or futures contracts

When certain powers may be exercised

40. Subject to subsections 42 (2) and 45 (2), a power conferred by section 41 or 44 may only be exercised:

(a) for the purposes of the performance or exercise of any of the Commission’s functions and powers;

(b) for the purposes of ensuring compliance with a national scheme law;

(d) for the purposes of an investigation under Division 1.

Acquisitions and disposals of securities

41. (1) The Commission may require a dealer to disclose to it, in relation to an acquisition or disposal of securities:

(a) the name of the person from or through whom, or on whose behalf, the securities were acquired; or

(b) the name of the person to or through whom, or on whose behalf, the securities were disposed of;

as the case may be, and the nature of the instructions given to the dealer in relation to the acquisition or disposal.

(2) The Commission may require a person to disclose to it, in relation to an acquisition or disposal of securities by the person, whether or not the person acquired or disposed of the securities 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.

(3) The Commission may require a person who conducts a stock market to disclose to the Commission, in relation to an acquisition or disposal of securities on that stock market, the names of the persons who acted in the acquisition or disposal.

Additional operation of section 41

42. (1) The effect that section 41 has by force of subsection (3), (4), (5) or (6) of this section is additional to, and does not prejudice, the effect that that section has otherwise than by force of that subsection.

(2) Section 40 does not apply in relation to a power conferred by section 41 as it has effect by virtue of subsection (3), (4), (5) or (6) of this section.

(3) Section 41 has, by force of this subsection, the effect it would have if a reference in that section to securities were a reference to eligible securities.

(4) Section 41 has, by force of this subsection, the effect it would have if a reference in that section to an acquisition or disposal of securities were a reference to an acquisition or disposal, as the case may be, of securities:

(a) by, or on behalf of, a corporation;

(b) in eligible circumstances; or

(5) Section 41 has, by force of this subsection, the effect it would have if a reference in that section to an acquisition or disposal of securities were a reference to an acquisition of securities from, or a disposal of securities to, as the case may be, a corporation.

(6) Section 41 has, by force of this subsection, the effect it would have if a reference in that section to requiring a dealer or person to disclose something to the Commission were a reference to so requiring a dealer or person, being a corporation.

Exercise of certain powers of the Commission in relation to securities

43. (1) This section applies where the Commission considers that:

(a) it may be necessary to exercise, in relation to securities of a body corporate, a power under section 775 of the Corporations Act 1989;

(b) a contravention of section 845, or Division 2 of Part 7.11, of the Corporations Act 1989 may have been committed in relation to securities of a body corporate;

(c) a contravention of Part 6.7 or 6.8 of the Corporations Act 1989 may have been committed in relation to shares in a body corporate;

(d) a contravention of a law of the Commonwealth or a Territory may have been committed, being a contravention that involves fraud or dishonesty and relates to securities of a body corporate;

(e) unacceptable circumstances within the meaning of Part 6.9 of the Corporations Act 1989 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 subsection 734 (5) of the Corporations Act 1989.

(2) The Commission may require a director, secretary or executive officer of the body to disclose to the Commission 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 securities of the body.

(3) If the Commission believes on reasonable grounds that a person can give information about particular matters, being any or all of the following:

(a) a dealing in securities of the body;

(b) advice, or an analysis or report, that a dealer, an investment adviser, or a securities representative of a person, has given, issued or published about such securities;

(i) is or has been (either alone or together with any other person or persons) a dealer or investment adviser; and

(ii) has dealt in, has given advice about, or has issued or published an analysis or report about, such securities;

(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 dealer or investment adviser, being accounts or records relating to dealings in such securities;

the Commission may require the person to disclose to it the information that the person has about those particular matters.

(4) The Commission shall 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;

(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 subsection 733 (1) or 734 (2), or section 736, as the case may be, of the Corporations Act 1989.

Dealings in futures contracts

44. (1) The Commission may require a futures broker to disclose to it, in relation to a dealing by the futures broker in a futures contract, whether or not the dealing was effected on another person’s behalf, and, if so:

(a) the name of the other person; and

(b) the nature of the instructions given to the futures broker in relation to the dealing.

(2) The Commission may require a person to disclose to it, in relation to a dealing in a futures contract effected on the person’s instructions, whether or not the person gave the instructions 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 dealing.

(3) The Commission may require a futures exchange to disclose to it, in relation to a dealing in a futures contract on a futures market of that futures exchange, the names of the members of the futures exchange who were concerned in any act or omission in relation to the dealing.

(4) The Commission may require a clearing house for a futures market to disclose to the Commission, in relation to a dealing in a futures contract on that futures market, the names of the members of the clearing house who were concerned in any act or omission in relation to the dealing.

Additional operation of section 44

45. (1) The effect that section 44 has by force of subsection (3) or (4) of this section is additional to, and does not prejudice, the effect that that section has otherwise than by force of that subsection.

(2) Section 40 does not apply in relation to a power conferred by section 44 as it has effect by virtue of subsection (3) or (4) of this section.

(3) Section 44 has, by force of this subsection, the effect it would have if a reference in that section to a dealing in a futures contract were a reference to a dealing in a futures contract:

(a) by, or on behalf of, a corporation;

(b) in eligible circumstances; or

(4) Section 44 has, by force of this subsection, the effect it would have if a reference in that section to requiring a futures broker, a person, a futures exchange, or a clearing house for a futures market, to disclose something to the Commission were a reference to so requiring a futures broker, a person, a futures exchange, or a clearing house for a futures market, who or that is a corporation.

Exercise of certain powers of Commission in relation to futures contracts

46. (1) The Commission shall not exercise a power conferred by this section except:

(a) where it considers that it may be necessary to give a direction under section 1138 of the Corporations Act 1989—for the purpose of determining whether or not to give such a direction; or

(b) where it considers that there may have been committed:

(i) a contravention of Part 8.7 (other than sections 1258 and 1267) of the Corporations Act 1989; or

(ii) a contravention of a law of the Commonwealth or of a Territory, being a contravention that involves fraud or dishonesty and relates to futures contracts;

for the purpose of investigating the possible contravention.

(2) Where the Commission believes on reasonable grounds that a person can give information about particular matters, being any or all of the following:

(a) a dealing in futures contracts;

(b) advice, or an analysis or report, that a futures broker, a futures adviser, or a futures representative of a person, has given, issued or published about futures contracts;

(c) the financial position of a business carried on by a person who is or has been (either alone or together with any other person or persons) a futures broker or futures adviser;

(e) an audit of, or a report of an auditor about, accounts or records of a futures broker or futures adviser, being accounts or records relating to dealings in futures contracts;

the Commission may require the person to disclose to it the information that the person has about those particular matters.

Disclosures to take place in private

47. (1) A disclosure to the Commission pursuant to a requirement made under this Division shall take place in private and the Commission may give directions about who may be present during it, or during a part of it.

(2) A person shall not be present during a disclosure unless he or she:

(a) is a member;

(b) is a staff member approved by the Commission; or

(i) a direction under subsection (1); or

(ii) subsection 48 (1).

Penalty: $1,000 or imprisonment for 3 months, or both.

Lawyer of person making disclosure may attend

48. (1) The lawyer of a person making a disclosure to the Commission 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 the Commission presiding at the meeting during which the disclosure is made determines, address the representatives of the Commission 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 the Commission.

Division 5—Proceedings after an investigation

Commission may cause prosecution to be begun

49. (1) This section applies where, as a result of an investigation or from a record of an examination, it appears to the Commission that a person:

(a) may have committed an offence against a law of the Commonwealth or a Territory; and

(b) ought to be prosecuted for the offence.

(2) The Commission may cause a prosecution of the person for the offence to be begun and carried on.

(3) If:

(a) the Commission, 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;

the Commission 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.

(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.

(5) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.

Commission may cause civil proceeding to be begun

50. Where, as a result of an investigation or from a record of an examination, it appears to the Commission to be in the public interest for a person to begin and carry on a federal 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;

the Commission:

(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

Power to hold hearings

51. The Commission may hold hearings for the purposes of the performance or exercise of any of its functions and powers, other than a function or power conferred on it by Division 1 of this Part or by section 733, 734 or 736 of the Corporations Act 1989.

General discretion to hold hearing in public or private

52. (1) Subject to sections 53 and 54, the Commission may direct that a hearing take place in public or take place in private.

(2) In exercising its discretion under subsection (1), the Commission shall 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;

(b) any unfair prejudice to a person’s reputation that would be likely to be caused if the hearing took place in public;

(d) any other relevant matter.

Request by person appearing at hearing that it take place in public

53. (1) Subject to section 54, where:

(a) a national scheme law requires the Commission 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 shall take place in public.

(2) Despite subsection (1), where the Commission 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.

Certain hearings to take place in private

54. Where a national scheme law (other than this section) requires a hearing to take place in private, the hearing shall take place in private.

Commission may restrict publication of certain material

55. (1) Where, at a hearing that is taking place in public or in private, the Commission is satisfied that it is desirable to do so, the Commission may give directions preventing or restricting the publication of evidence given before, or of matters contained in documents lodged with, the Commission.

(2) In determining whether or not to give a direction under subsection (1), the Commission shall 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;

(b) any unfair prejudice to a person’s reputation that would be likely to be caused unless the Commission exercises its powers under this section;

(d) any other relevant matter.

Who may be present when hearing takes place in private

56. (1) The Commission 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 a national scheme law 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 the Commission directs that a hearing take place in private, a person shall not be present at the hearing unless he or she:

(a) is a member;

(b) is a staff member approved by the Commission; or

(i) a direction under subsection (1); or

(ii) subsection (2).

Penalty: $1,000 or imprisonment for 3 months.

Involvement of person entitled to appear at hearing

57. (1) This section applies where a national scheme law requires the Commission to give a person an opportunity to appear at a hearing and to make submissions and give evidence to it.

(2) The Commission shall 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 the Commission any written submissions that the person wishes the Commission to take into account in relation to the matter concerned.

Power to summon witnesses and take evidence

58. (1) A member may, by written summons in the prescribed form given to a person:

(a) require the person to appear before the Commission 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.

(2) At a hearing, the Commission 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.

(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.

(5) The Commission may permit a witness at a hearing to give evidence by tendering, and if the Commission so requires, verifying by oath, a written statement.

Proceedings at hearings

59. (1) A hearing shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of national scheme laws and a proper consideration of the matters before the Commission permit.

(2) At a hearing, the Commission:

(a) is not bound by the rules of evidence;

(b) may, on such conditions as it thinks fit, permit a person to intervene; and

(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 the Commission.

(4) At a hearing before a Division of the Commission, 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 the Commission.

(6) A body corporate may be represented at a hearing by an officer of the body corporate approved by the Commission.

(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 or officer of the association approved by the Commission.

(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.

Commission to take account of evidence and submissions

60. The Commission shall 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.

Reference to Court of question of law arising at hearing

61. (1) The Commission 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.

(2) The Court has jurisdiction to hear and determine a question of law referred to it under this section and that jurisdiction shall be exercised by the Court constituted by at least 3 judges of the Court.

(3) Where a question has been referred under subsection (1), the Commission shall 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) the Commission shall send to the Court all documents that were before the Commission in connection with the hearing; and

(b) at the end of the proceeding in the Court in relation to the reference, the Court shall cause the documents to be returned to the Commission.

Protection of members etc.

62. (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.

(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

Non-compliance with requirements made under this Part

63. (1) A person shall not, without reasonable excuse, fail to comply with a requirement made under section 19, subsection 21 (3), section 30, 31, 32, 33 or 34, subsection 37 (9) or section 38 or 39.

Penalty: $10,000 or imprisonment for 2 years, or both.

(2) A person shall not, without reasonable excuse, fail to comply with a requirement made under section 41, 42, 43, 44, 45 or 46.

Penalty: $5,000 or imprisonment for 12 months, or both.

(3) A person shall not, without reasonable excuse, 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: $1,000 or imprisonment for 3 months, or both.

(4) A person shall comply with a requirement made under subsection 23 (2) or 48 (2).

Penalty: $500.

False information

64. (1) A person shall 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: $10,000 or imprisonment for 2 years, or both.

(2) A person shall not, at a hearing, give evidence that is false or misleading in a material particular.

Penalty: $1,000 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.

Obstructing person acting under this Part

65. (1) A person shall not, without reasonable excuse:

(a) obstruct or hinder a person in the exercise of a power under this Part; or

(b) obstruct or hinder a person who is executing a warrant issued under section 36.

Penalty: $10,000 or imprisonment for 2 years, or both.

(2) The occupier, or person in charge, of premises that a person enters under a warrant issued under section 36 shall provide to that person all reasonable facilities and assistance for the effective exercise of his or her powers under the warrant.

Penalty: $2,500 or imprisonment for 6 months, or both.

Contempt of Commission

66. (1) A person shall not:

(a) obstruct or hinder the Commission or a member in the performance or exercise of any of the Commission’s functions and powers; or

(b) disrupt a hearing.

Penalty: $5,000 or imprisonment for 1 year, or both.

(2) A person shall not, without reasonable excuse, contravene a direction given under subsection 55 (1).

Penalty: $5,000 or imprisonment for 1 year, or both.

(3) An offence constituted by a contravention of subsection (1) or (2) is punishable on summary conviction.

Concealing books relevant to investigation

67. (1) Where the Commission is investigating, or is about to investigate, a matter, a person shall not:

(a) in any case—conceal, destroy, mutilate or alter a book relating to that matter; or

(b) if a book relating to that matter is in a particular State or Territory—take or send the book out of that State or Territory or out of Australia.

Penalty: $20,000 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 a national scheme law nor to delay or obstruct an investigation, or a proposed investigation, by the Commission.

Self-incrimination

68. (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;

(b) to sign a record; or

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;

(ii) signing a record; or

(iii) producing a book;

pursuant to a requirement made under this Part, Division 3 of Part 10, or Division 2 of Part 11, a person claims that the statement, 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; and

(b) the statement, signing the record, or production of the book, as the case may be, might in fact tend to incriminate the person or make the person liable to a penalty.

(3) Neither the statement, or the fact that the person has signed the record or produced the book, as the case may be, nor, in the case of the making of a statement or the signing of a record, any information, document or other thing obtained as a direct or indirect consequence of the person making the statement or signing the record, as the case may be, is 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:

(d) in the case of the signing of a record—the falsity of any statement contained in the record.

Legal professional privilege

69. (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 under official management or being wound up—the official manager or 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 shall, 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;

(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: $1,000 or imprisonment for 3 months, or both.

Powers of Court where non-compliance with Part

70. (1) This section applies where the Commission is satisfied that a person has, without reasonable excuse, failed to comply with a requirement made under this Part (other than Division 8).

(2) The Commission may by writing certify the failure to the Court.

(3) If the Commission 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—Commission’s powers where non-compliance with Part

Orders by Commission

71. This Division applies where, in the Commission’s opinion, information about:

(a) affairs of a body corporate;

(b) securities; or

needs to be found out for the purposes of the exercise of any of the Commission’s powers under this Part but cannot be found out because a person has failed to comply with a requirement made under this Part.

Orders in relation to securities of a body corporate

72. If paragraph 71 (a) applies, the Commission 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;

(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.

Orders in relation to securities generally

73. If paragraph 71 (b) applies, the Commission may make one or more of the following:

(a) an order restraining a specified person from disposing of any interest in specified securities;

(b) an order restraining a specified person from acquiring any interest in specified securities;

(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 securities;

(f) an order directing a body corporate not to register the transfer or transmission of specified securities;

(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.

Orders in relation to futures contracts

74. (1) If paragraph 71 (c) applies, the Commission may make one or more of the following:

(a) an order restraining a specified person from disposing of specified futures contracts;

(b) an order restraining a specified person from acquiring specified futures contracts;

(d) an order requiring a specified person to dispose of specified futures contracts, or to dispose of specified futures contracts in a specified manner.

(2) An order under subsection (1) does not prejudice or affect a right of a futures exchange, or of a clearing house for a futures exchange:

(a) to cause a futures contract to be closed out, or to close out a futures contract, because of a failure to meet a call for a deposit or margin;

(b) to enter into a liquidating trade in order so to cause a futures contract to be closed out, or in order so to close out a futures contract;

(c) to cause to be registered in a person’s name, or to register in a person’s name, a futures contract that was previously registered in another person’s name.

(3) In this section:

“right” includes a right enforceable neither at law nor in equity.

Orders under this Division

75. (1) The Commission may make an order varying or revoking an order in force under this Division.

(2) An order under this Division shall be made by notice published in the Gazette.

(3) Where an order is made under this Division (other than subsection (1)), the Commission shall 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 securities, the Commission shall cause:

(a) a copy of the order; and

(b) a copy of each order varying or revoking it;

to be given to:

(d) if the securities are rights or options—the person against whom the right or option is, or would be enforceable.

(5) A person shall comply with an order in force under this Division.

Penalty: $2,500 or imprisonment for 6 months, or both.

Division 9—Evidentiary use of certain material

Statements made at an examination: proceedings against examinee

76. (1) A statement that a person makes at an examination of the person is admissible in evidence against the person in a federal proceeding unless:

(a) the proceeding is:

(i) a criminal proceeding; or

(ii) a proceeding for the imposition of a penalty;

(other than a proceeding in respect of the falsity of the statement) and, before making the statement, the person claimed that the statement might tend to incriminate him or her or make him or her liable to a penalty;

(b) the statement is not relevant to the proceeding and the person objects to the admission of evidence of the statement;

(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 federal 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.

Statements made at an examination: other proceedings

77. Where direct evidence by a person (in this section called the “absent witness”) of a matter would be admissible in a federal 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;

(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.

Weight of evidence admitted under section 77

78. (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 shall be had to:

(a) how long after the matters to which it related the statement was made;

(b) any reason the person may have had for concealing or misrepresenting a material matter; and

(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.

Objection to admission of statements made at examination

79. (1) A party (in this section called the “adducing party”), to a federal 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) shall 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 shall 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.

Copies of, or extracts from, certain books

80. (1) A copy of, or an extract from, a book relating to:

(a) affairs of a body corporate; or

(b) a matter referred to in any of paragraphs 31 (1) (g) to (m), inclusive, and 32 (1) (j) to (p), inclusive;

is admissible in evidence in a federal 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.

Report under Division 1

81. Subject to section 82, where a copy of a report under Division 1 purports to be certified by the Commission as a true copy of such a report, the copy is admissible in a federal proceeding (other than a criminal proceeding) as prima facie evidence of:

(a) the Commission’s report of its opinion for the purposes of paragraph 461 (h) or subparagraph 583 (c) (iii) of the Corporations Act 1989; and

(b) any facts or matters that the report states the Commission to have found to exist.

Exceptions to admissibility of report

82. (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 the Commission 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 shall 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);

(b) a person to whom the application or any of the applications relates, 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 shall refuse so to admit the copy, or shall treat the copy as not having been so admitted, as the case requires.

Material otherwise admissible

83. 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

Requirement made of a body corporate

84. 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 of the body.

Evidence of authority

85. A person (in this section called the “inspector”), other than the Commission, who is about to make, or has made, a requirement of another person under this Part (other than Division 6) shall, 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 the Commission and incorporates a photograph of the inspector;

(b) if the requirement will be, or was, made under an authorisation by the Commission—a document that was issued by the Commission and sets out the effect of so much of the authorisation as is relevant to making the requirement; and

Giving documents to natural persons

86. Section 28a of the Acts Interpretation Act 1901 has effect for the purposes of this Part as if the reference in subparagraph 28a (1) (a) (ii) of that Act 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.

Place and time for production of books

87. A provision of this Part that empowers a person to require the production of books at a place and time specified by the person shall be 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.

Application of Crimes Act and Evidence Act

88. (1) For the purposes of Part III of the Crimes Act 1914, an examination or a hearing is a judicial proceeding.

(2) For the purposes of Part IIIa of the Evidence Act 1905, an examination is a proceeding but is not a criminal proceeding.

Allowances and expenses

89. (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 the Commission;

the prescribed allowances and expenses (if any).

(3) The Commission 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.

Expenses of investigation under Division 1

90. Subject to section 91, the Commission shall pay the expenses of an investigation.

Recovery of expenses of investigation

91. (1) Where:

(a) a person is convicted of an offence against a law of the Commonwealth or a Territory in a prosecution; or

(b) a judgment is awarded against a person in a federal proceeding;

begun as a result of an investigation under Division 1, the Commission may make one of the following orders:

(d) an order that the person reimburse the Commission to the extent of a specified amount of such of the expenses of the investigation as the Commission has paid;

(e) an order that the person pay, or reimburse the Commission in respect of, the whole, or a specified part, of the cost to the Commission of making the investigation, including the remuneration of a member or staff member concerned in the investigation.

(2) An order under this section shall be in writing and shall specify when and how the payment or reimbursement is to be made.

(3) A person shall comply with an order under this section that is applicable to the person.

Penalty: $5,000 or imprisonment for 1 year, or both.

(4) The Commission may recover in a court of competent jurisdiction as a debt due to the Commission 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.

Compliance with Part

92. 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.

Effect of Part

93. (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 or a State or Territory.

PART 4—THE COMMISSION’S BUSINESS

Division 1—General

Arrangement of Commission’s business

94. Subject to section 12, the Commission may give directions about the arrangement of the Commission’s business.

Commission to establish offices

95. (1) For the purposes of performing its functions and exercising its powers, the Commission shall establish within Australia such offices as it thinks fit.

(2) In deciding on the number and location of its offices, the Commission shall seek to ensure that it serves adequately the needs of business communities throughout Australia.

Regional Commissioners

96. (1) Subject to subsection (2), there shall be a Regional Commissioner, appointed by the Commission, for each of the States and Territories.

(2) The Commission shall not appoint a Regional Commissioner for a particular State if the Commission is satisfied that, because of the nature of an arrangement in force under subsection 249 (1) in relation to the State and the nature and extent of delegations or proposed delegations of its functions and powers in relation to the State, it is unnecessary, for the purposes of the administration of national scheme laws, to do so.

(3) A person shall not be appointed as a Regional Commissioner unless he or she is a member of the staff referred to in subsection 120 (1) or a person employed under subsection 120 (3).

(4) Where there is a Regional Commissioner for a State or Territory, the office or offices established under section 95 in that State or Territory shall be managed by that Regional Commissioner.

Division 2—Divisions of the Commission

Commission may establish Division

97. (1) The Commission may direct in writing that a Division of the Commission consisting of at least 2 specified members shall, either generally or as otherwise provided by the direction, perform or exercise specified functions or powers of the Commission.

(2) A direction under this section that is in force and does not specify the Chairperson as a member of the Division shall specify such a member as the Division’s chairperson.

Effect of direction establishing Division

98. (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 the Commission.

(2) The Commission shall be deemed 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 shall be deemed to be the Chairperson.

(4) A meeting of the Division shall be deemed to be a meeting of the Commission, but 2 members of the Division form a quorum at a meeting of the Division.

Commission may reconstitute Division

99. Where a direction under section 97 is in force, the Commission may at any time revoke the direction or amend it in relation to the Division’s membership or in any other respect.

Effect of reconstituting Division

100. (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.

Multiple Divisions

101. A Division of the Commission may perform functions, or exercise powers, of the Commission even though another such Division is performing such functions, or exercising such powers, at the same time.

Division 3—Delegation by the Commission

Delegation

102. (1) The Commission may, by writing under its common seal, delegate to a person all or any of its functions and powers.

(2) The Commission shall not, without the Minister’s approval, delegate a function or power to a person other than:

(a) a member;

(b) a staff member; or

(3) In subsections (1) and (2):

“person” includes a body.

(4) In exercising its power under subsection (1), the Commission shall seek to ensure that:

(a) the persons who make decisions affecting a particular business community are located as close to that community as practicable;

(b) members of business communities throughout Australia have prompt and convenient access to decision-making and to the Commission’s facilities; and

(c) where an arrangement is in force under subsection 249 (1) in relation to delegations under this section to an authority of a State or Territory or to officers or employees of, or of an authority of, a State or Territory—national scheme laws are, to the greatest extent practicable, administered in relation to that State or Territory by that authority or those officers or employees.

(5) In the performance of a function, or the exercise of a power, delegated under this section, the delegate is subject to the Commission’s directions.

(6) Where a function or power conferred on the Commission by or under an Act (including this Act) and delegated under this section is performed or exercised by the delegate, it shall, for the purposes of that Act and this Act, be deemed to have been performed or exercised by the Commission.

(7) Where a body to which a function or power is delegated under this section is not a person, section 34a of the Acts Interpretation Act 1901 applies as if it were.

Division 4—Meetings of the Commission

Convening of meetings

103. (1) The Chairperson may convene a meeting to be held at a place and time he or she determines.

(2) The Chairperson shall convene such meetings as he or she thinks necessary for the efficient performance of the Commission’s functions.

(3) If so requested in writing by 2 of the members, the Chairperson shall convene a meeting.

Approved methods of communication

104. (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 the Commission 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.

Quorum

105. At a meeting:

(a) if the Commission consists of 3 or 4 members—2 members; or

(b) in any other case—3 members; form a quorum.

Who is to preside at meetings

106. (1) The Chairperson shall 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 shall preside.

(3) If neither the Chairperson nor the Deputy Chairperson is present at a meeting, the members present shall elect one of their number to preside.

Procedure at meetings

107. (1) Questions arising at a meeting shall 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—THE COMMISSION’S MEMBERS

Division 1—Terms and conditions

Term of office as member

108. (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.

(2) A person who has attained the age of 65 years shall not be appointed as a full-time member.

(3) A person shall not be appointed as a full-time member for a term extending beyond the day on which he or she will attain the age of 65 years.

Term of office as Chairperson or Deputy Chairperson

109. (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;

(b) in any case—he or she otherwise stops being a member; or

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.

Resignation

110. A person may resign as a member, as Chairperson, or as Deputy Chairperson, by writing signed and delivered to the Governor-General.

Termination of appointment

111. (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;

(b) is a full-time member and engages without the Minister’s consent in paid employment outside the duties of the member’s office;

(c) is a full-time member and is absent from duty, except on leave granted in accordance with subsection 113 (1), for 14 consecutive days, or for 28 days in any period of 12 months;

(d) is a part-time member and is absent, except on leave granted in accordance with subsection 113 (2), from 3 consecutive meetings of the Commission;

(e) without reasonable excuse, contravenes section 123, subsection 124 (2), (4) or (6) or section 125; or

(f) contravenes section 128.

(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.

Remuneration and allowances etc.

112. (1) A member shall 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 shall be paid such remuneration as the Minister determines in writing.

(2) A member shall 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) The Commission 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 Tribunals Act 1973.

Leave of absence

113. (1) The Minister may grant to a full-time member leave of absence from duty on such terms and conditions as to remuneration or any other matter as the Minister specifies.

(2) The Minister may grant to a part-time member leave of absence from a meeting of the Commission.

Superannuation arrangements

114. (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.

(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 shall not make a determination under subsection (1), or vary or revoke a determination so made, except in accordance with arrangements approved by the Minister administering section 167a of the Superannuation Act 1976.

(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.

Other terms and conditions

115. 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

Acting members

116. (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);

(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 the Commission includes a reference to a person who is acting as a member under subsection (1).

Acting Chairperson

117. 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.

Acting Deputy Chairperson

118. 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.

Limitation on appointments to act during vacancy

119. A person appointed under section 116, 117 or 118 to act during a vacancy shall not continue for more than 12 months to act during the vacancy.

PART 6—THE COMMISSION’S STAFF

Staff

120. (1) Subject to this Part, the Commission’s staff shall be persons appointed or employed under the Public Service Act 1922.

(2) The Commission has all the powers of, or exercisable by, a Secretary under the Public Service Act 1922, so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in subsection (1), as if that branch were a separate Department of the Australian Public Service.

(3) In addition to the staff referred to in subsection (1), the Commission may, on the Commonwealth’s behalf, employ under written agreements such persons as the Commission 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 Commission determines from time to time with the Minister’s written approval.

Consultants etc.

121. (1) The Commission may, on the Commonwealth’s behalf, engage, under written agreements, as consultants to, or to perform services for, the Commission 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 Commission determines from time to time.

Staff seconded to the Commission

122. In addition to the other staff members:

(a) officers and employees of Departments of the Australian Public Service, and of authorities of the Commonwealth, whose services are made available to the Commission 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;

shall assist the Commission.

PART 7—PREVENTING CONFLICTS OF INTEREST AND MISUSE OF INFORMATION

Division 1—Disclosure of interests

Chairperson to disclose certain interests to Minister

123. The Chairperson shall give written notice to the Minister of all direct or indirect pecuniary interests that the Chairperson has or acquires in, or in a body corporate carrying on, a business carried on in Australia.

Members to disclose certain interests to Chairperson

124. (1) This section has effect where a member:

(a) is to take part, or is taking part, in determining a matter before the Commission; and

(b) has or acquires a direct or indirect pecuniary or other interest 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 shall 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 shall:

(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 shall comply with a direction under paragraph (3) (a).

(5) If the member is the Chairperson, he or she shall cause his or her interest to be disclosed to the persons concerned in the matter.

(6) Subject to subsection (4), the member shall 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.

Notification of interests to Commission

125. (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 employed under the Public Service Act 1922);

(b) performing a function, or exercising a power, as a Commission delegate; or

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 shall forthwith give to the Commission 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 shall do whatever is necessary to avoid the conflict referred to in subsection (1).

Penalty: $5,000 or imprisonment for 12 months, or both.

Defence

126. 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

Confidentiality

127. (1) The Commission shall 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 as required or permitted by a law of the Commonwealth or a prescribed law of a State or Territory shall be taken to be authorised use and disclosure of the information.

(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 Commission 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, the Commission; or

(b) the performance of functions or services by the person by way of assisting a Commission delegate;

shall be 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 the Advisory Committee, the Panel, the Disciplinary Board, 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;

(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;

the disclosure of the information to the agency or government by a person whom the Chairperson authorises for the purpose shall be taken to be authorised use and disclosure of the information.

(5) The Chairperson may delegate all or any of his or her functions and powers under subsection (4) to a member or staff member.

(6) Nothing in any of subsections (2), (3) and (4) 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.

Division 3—Restrictions on dealing in securities and futures contracts

Certain persons not to deal on the basis of certain information

128. (1) This section has effect where:

(a) because of being, or having at any time been, or acting as, or having at any time acted as, a member or staff member;

(b) because of being, or having at any time been, a Commission delegate; or

a person has acquired information that is not generally available but that, if it were, would be likely to affect materially:

(d) the price of securities; or

(e) the price for dealing in a futures contract.

(2) If paragraph (1) (d) applies, the person shall not deal in, or procure another person to deal in, those securities.

(3) If paragraph (1) (e) applies, the person shall not deal in, or procure another person to deal in, that futures contract or a futures contract of the same kind as that futures contract.

Penalty: $20,000 or imprisonment for 5 years, or both.

Compensation to other parties where section 128 contravened

129. (1) A person who contravenes section 128 is liable to compensate any other party to the transaction for any loss sustained by that party because of:

(a) any difference between the price at which the securities were dealt in in the transaction and the price at which they would be likely to have been dealt in in such a transaction at the time when the first-mentioned transaction took place if the information had been generally available; or

(b) any difference between the price at which the dealing in the futures contract took place and the price at which it would be likely to have taken place if the information had been generally available;

as the case requires.

(2) Subsection (1) does not affect any other liability of a person who contravenes section 128.

Amount of compensation

130. (1) Where a person is liable under section 129 to compensate another person for a loss in relation to a transaction, the amount of the compensation is:

(a) if the first-mentioned person has already been found by a court to be liable under section 129 to pay an amount or amounts to a person or persons in relation to the transaction—the amount of that loss less the amount, or the sum of the amounts, that the first-mentioned person has been so found to be liable to pay; or

(b) in any other case—the amount of that loss.

(2) For the purposes of subsection (1), the onus of establishing that the transaction in relation to which a person is liable to pay compensation is the same as the transaction in relation to which the person has already been found liable to pay an amount or amounts lies on that person.

Limitation of actions

131. An action under section 129 is not maintainable more than 2 years after the day on which the transaction was completed.

Commission may sue

132. The Commission may, if it considers that it is in the public interest to do so, bring an action under section 129 in the name, and for the benefit, of a person.

PART 8—FINANCE

Division 1—General

Payments to Commission by Commonwealth

133. (1) There shall be paid to the Commission such money as is appropriated by the Parliament for the purposes of the Commission.

(2) The Minister for Finance may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to the Commission.

The Commission’s money

134. The Commission’s money shall consist of:

(a) money paid to the Commission under subsection 133 (1); and

(b) any other money paid to the Commission.

How Commission’s money to be applied

135. (1) Subject to subsection (3), the Commission’s money may be applied only:

(a) in paying or discharging expenses, charges, obligations or liabilities that:

(i) the Commission;

(ii) the Panel;

(iii) the Disciplinary Board; or

(iv) the Review Board;

incurs or undertakes in connection with performing or exercising any of its functions and powers;

(b) in paying remuneration or allowances payable under this Act (other than remuneration or allowances payable to members of the Advisory Committee);

(d) in connection with the provision, in accordance with subsection 114 (4), of superannuation benefits; or

(e) in making, in respect of a full-time member who is not an eligible employee, contributions under a superannuation or retirement scheme, however established.

(2) Nothing in subsection (1) limits the generality of anything else in that subsection.

(3) Any of the Commission’s money that is not immediately required for purposes of the Commission may be invested:

(a) on deposit with a bank that, for the purposes of section 63j of the Audit Act 1901, is an approved bank in relation to the Commission;

(b) in Commonwealth securities; or

(4) This section has effect subject to a provision that a law of the Commonwealth makes about money or property that vests in the Commission under such a law.

(5) The Minister may by writing require the Commission to pay to the Commonwealth so much of the Commission’s money as:

(a) is not immediately required for the purposes of the Commission; and

(b) does not exceed a specified amount.

(6) The Commission shall comply with a requirement under subsection (5) and shall realise so much of the property in which money has been invested under subsection (3) as is necessary in order to so comply.

(7) Money paid by the Commission to the Commonwealth under subsection (5) shall form part of the Consolidated Revenue Fund.

Estimates

136. (1) The Commission shall:

(a) prepare estimates of the receipts and expenditure of the Commission, in such form as the Minister directs, for:

(i) each financial year; and

(ii) any other period specified by the Minister; and

(b) give the estimates to the Minister within such time as the Minister directs.

(2) The estimates referred to in subsection (1) shall not include estimates of receipts or expenditure of trust money.

(3) The money of the Commission, other than trust money, shall be expended only in accordance with estimates approved by the Minister.

Limitation on contracts and leases

137. (1) Except as otherwise provided by the regulations, the Commission shall not, without the approval of the Minister:

(a) enter into a contract under which the Commission is to pay or receive an amount exceeding $250,000 or, if a higher amount is prescribed, that higher amount; or

(b) enter into a lease of land for a period exceeding 10 years.

(2) In paragraph (1) (a):

“contract” does not include an agreement entered into under subsection 120 (3) or 121 (1) or an agreement entered into in the exercise of a power conferred by subsection 135 (3).

Application of Division 3 of Part XI of Audit Act

138. (1) The Commission is a public authority to which Division 3 of Part XI of the Audit Act 1901 applies.

(2) A report by the Commission, under section 63m of the Audit Act 1901, of its operations during a year ending on a particular 30 June shall:

(a) describe the specific goals the Commission has pursued, and the priorities it has followed, during that year, in performing its functions and pursuing the objectives referred to in subsection 3 (2);

(b) describe what progress the Commission has made during that year towards achieving those goals; and

(c) describe any matters that, during that year, have adversely affected the Commission’s effectiveness or have hindered the Commission in pursuing any of those goals and objectives.

Liability to taxation

139. (1) Subject to subsection (2), the Commission is not subject to taxation under:

(a) a law of the Commonwealth (other than a law imposing sales tax, the Debits Tax Act 1982 or the Fringe Benefits Tax Act 1986); or

(b) a law of a State or Territory.

(2) The regulations may provide that subsection (1) does not apply in relation to taxation under a specified law.

Division 2—Trust property

Commission may accept property on trust

140. The Commission may accept gifts, bequests and devises made to the Commission on trust and may act as trustee of money or other property vested in the Commission on trust.

Trust money to be paid into bank account

141. The Commission shall ensure that trust money is paid into an account or accounts:

(a) maintained by the Commission under section 63j of the Audit Act 1901; and

(b) containing only trust money.

How trust property to be applied

142. (1) Notwithstanding section 135, money or other property that the Commission holds on trust shall be applied or dealt with in accordance with the Commission’s powers and duties as trustee, and not otherwise.

(2) Money that the Commission holds on trust may be invested in any manner in which:

(a) the terms of the trust authorise the Commission to invest the money; or

(b) a law in force in a State or internal Territory authorises trustees to invest trust funds.

Accounts relating to trust property

143. (1) This section has effect for the purposes of section 63k of the Audit Act 1901.

(2) A transaction or affairs relating to money or other property that the Commission receives or holds on trust is a transaction or affair of the Commission.

(3) A payment out of money that the Commission holds on trust is a payment out of the Commission’s money.

Audit in relation to trust property

144. (1) For the purposes of subsection 63l (1) of the Audit Act 1901, a transaction relating to trust money is a financial transaction of the Commission.

(2) For the purposes of subsection 63l (4) of the Audit Act 1901:

(a) the receipt or payment by the Commission of trust money is the receipt or payment of money by the Commission; and

(b) the acquisition, receipt, custody or disposal by the Commission of an asset the Commission receives or holds on trust is the acquisition, receipt, custody or disposal of an asset by the Commission.

PART 9—THE ADVISORY COMMITTEE

Division 1—General

Establishment

145. A Companies and Securities Advisory Committee is established.

Advisory Committee is a body corporate

146. The Advisory Committee:

(a) is a body corporate, with perpetual succession;

(b) shall have a common seal;

(d) may sue and be sued in its corporate name.

Membership

147. (1) The Advisory Committee shall consist of the following members, namely, the Chairperson of the Commission and such other members as hold office in accordance with this Part.

(2) The members (other than the Chairperson of the Commission) shall be appointed by the Minister on a part-time basis.

(3) The Minister shall, by writing, appoint a member (other than the Chairperson of the Commission) as the Convenor of the Advisory Committee.

(4) The Minister shall 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, business, the administration of companies, the financial markets, law, economics and accounting.

(5) In appointing the members, the Minister shall have regard to the desirability of the views of business communities throughout Australia being adequately represented among the members.

Functions

148. The Advisory Committee’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 a national scheme law, or to make amendments of a national scheme law;

(b) the operation or administration of a national scheme law;

(d) companies, close corporations, securities or the futures industry; or

(e) a proposal for improving the efficiency of the securities markets or futures markets.

Term of office as member

149. 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.

Resignation

150. A person appointed as a member may resign as a member by writing signed by the person and delivered to the Minister.

Termination of appointment

151. 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.

Remuneration and allowances etc.

152. (1) A member shall 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 shall be paid such remuneration as the Minister determines in writing.

(2) A member shall be paid such allowances as the Minister determines in writing.

(3) This section has effect subject to the Remuneration Tribunals Act 1973.

(4) In this section:

“member” does not include the Chairperson of the Commission.

Meetings

153. (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.

(2) The procedure at a meeting shall be determined by the members present.

Advisory Committee to inform itself in any manner

154. For the purposes of the performance by the Advisory Committee of any of its functions, the Advisory Committee may inform itself in such manner as it sees fit.

Publication of advice or recommendations

155. (1) The Minister may, after consulting the Advisory Committee, publish any advice or recommendations given to him or her by the Advisory Committee.

(2) Nothing in subsection (1) affects the power of the Advisory Committee to publish any advice or recommendations that it has given to the Minister.

Division 2—Staff and finance

Staff

156. (1) Subject to this Part, the Advisory Committee’s staff shall be persons appointed or employed under the Public Service Act 1922.

(2) The Convenor has all the powers of, or exercisable by, a Secretary under the Public Service Act 1922, so far as those powers relate to the branch of the Australian Public Service comprising the staff referred to in subsection (1), as if that branch were a separate Department of the Australian Public Service.

(3) In addition to the staff referred to in subsection (1), the Advisory Committee may, on the Commonwealth’s behalf, employ under written agreements such persons as the Advisory Committee 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 Advisory Committee determines from time to time with the Minister’s written approval.

Consultants etc.

157. (1) The Advisory Committee may, on the Commonwealth’s behalf, engage, under written agreements, as consultants to, or to perform services for, the Advisory Committee, 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 Advisory Committee determines from time to time.

Staff seconded to Advisory Committee

158. In addition to the other staff of the Advisory Committee:

(a) officers and employees of Departments of the Australian Public Service, and of authorities of the Commonwealth, whose services are made available to the Advisory Committee 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;

shall assist the Advisory Committee.

Payments to Advisory Committee by Commonwealth

159. (1) There shall be paid to the Advisory Committee such money as is appropriated by the Parliament for the purposes of the Advisory Committee.

(2) The Minister for Finance may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to the Advisory Committee.

The Advisory Committee’s money

160. The Advisory Committee’s money shall consist of:

(a) money paid to the Advisory Committee under subsection 159 (1); and

(b) any other money paid to the Advisory Committee.

How Advisory Committee’s money to be applied

161. (1) Subject to subsection (3), the Advisory Committee’s money may be applied only:

(a) in paying or discharging expenses, charges, obligations, or liabilities, that the Advisory Committee incurs or undertakes in connection with performing or exercising any of its functions and powers; or

(b) in paying remuneration or allowances payable under this Act to members of the Advisory Committee.

(2) Nothing in subsection (1) limits the generality of anything else in that subsection.

(3) Any of the Advisory Committee’s money that is not immediately required for purposes of the Advisory Committee may be invested:

(a) on deposit with a bank that, for the purposes of section 63j of the Audit Act 1901, is an approved bank in relation to the Advisory Committee;

(b) in Commonwealth securities; or

(4) This section has effect subject to a provision that a law of the Commonwealth makes about money or property that vests in the Advisory Committee under such a law.

(5) The Minister may by writing require the Advisory Committee to pay to the Commonwealth so much of the Advisory Committee’s money as:

(a) is not immediately required for the purposes of the Advisory Committee; and

(b) does not exceed a specified amount.

(6) The Advisory Committee shall comply with a requirement under subsection (5) and shall realise so much of the property in which money has been invested under subsection (3) as is necessary in order to so comply.

(7) Money paid by the Advisory Committee to the Commonwealth under subsection (5) shall form part of the Consolidated Revenue Fund.

Estimates

162. (1) The Advisory Committee shall:

(a) prepare estimates of the receipts and expenditure of the Advisory Committee, in such form as the Minister directs, for:

(i) each financial year; and

(ii) any other period specified by the Minister; and

(b) give the estimates to the Minister within such time as the Minister directs.

(2) The estimates referred to in subsection (1) shall not include estimates of receipts or expenditure of trust money.

(3) The money of the Advisory Committee, other than trust money, shall be expended only in accordance with estimates approved by the Minister.

Limitation on contracts and leases

163. (1) Except as otherwise provided by the regulations, the Advisory Committee shall not, without the approval of the Minister:

(a) enter into a contract under which the Advisory Committee is to pay or receive an amount exceeding $50,000 or, if a higher amount is prescribed, that higher amount; or

(b) enter into a lease of land for a period exceeding 10 years.

(2) In paragraph (1) (a):

“contract” does not include an agreement entered into under subsection 156 (3) or 157 (1).

Application of Division 3 of Part XI of Audit Act

164. The Advisory Committee is a public authority to which Division 3 of Part XI of the Audit Act 1901 applies.

Liability to taxation

165. (1) Subject to subsection (2), the Advisory Committee is not subject to taxation under:

(a) a law of the Commonwealth (other than a law imposing sales tax, the Debits Tax Act 1982 or the Fringe Benefits Tax Act 1986); or

(b) a law of a State or Territory.

(2) The regulations may provide that subsection (1) does not apply in relation to taxation under a specified law.

Advisory Committee may accept property on trust

166. The Advisory Committee may accept gifts, bequests and devises made to the Advisory Committee on trust and may act as trustee of money or other property vested in the Advisory Committee on trust.

Trust money to be paid into bank account

167. The Advisory Committee shall ensure that trust money is paid into an account or accounts:

(a) maintained by the Advisory Committee under section 63j of the Audit Act 1901; and

(b) containing only trust money.

How trust property to be applied

168. (1) Notwithstanding section 161, money or other property that the Advisory Committee holds on trust shall be applied or dealt with in accordance with the Advisory Committee’s powers and duties as trustee, and not otherwise.

(2) Money that the Advisory Committee holds on trust may be invested in any manner in which:

(a) the terms of the trust authorise the Advisory Committee to invest the money; or

(b) a law in force in a State or internal Territory authorises trustees to invest trust funds.

Accounts relating to trust property

169. (1) This section has effect for the purposes of section 63k of the Audit Act 1901.

(2) A transaction or affairs relating to money or other property that the Advisory Committee receives or holds on trust is a transaction or affair of the Advisory Committee.

(3) A payment out of money that the Advisory Committee holds on trust is a payment out of the Advisory Committee’s money.

Audit in relation to trust property

170. (1) For the purposes of subsection 63l (1) of the Audit Act 1901, a transaction relating to trust money is a financial transaction of the Advisory Committee.

(2) For the purposes of subsection 63l (4) of the Audit Act 1901:

(a) the receipt or payment by the Advisory Committee of trust money is the receipt or payment of money by the Advisory Committee; and

(b) the acquisition, receipt, custody or disposal by the Advisory Committee of an asset the Commission receives or holds on trust is the acquisition, receipt, custody or disposal of an asset by the Advisory Committee.

PART 10—THE CORPORATIONS AND SECURITIES PANEL

Division 1—General

Establishment of Panel

171. A Corporations and Securities Panel is established.

Membership

172. (1) The Panel shall consist of such members, not fewer than 5, as hold office in accordance with this Part.

(2) The Governor-General shall appoint the members on the nomination of the Minister.

(3) At least 1 of the members shall be appointed as a full-time member and each of the remaining members may be appointed as a full-time member or as a part-time member.

(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.

President

173. The Governor-General shall appoint as President of the Panel a person who is, or is to be, a full-time member.

Functions and powers of Panel

174. The Panel shall perform the functions and exercise the powers conferred on it by or under a national scheme law.

Term of office as member

175. (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.

(2) A person who has attained the age of 65 years shall not be appointed as a full-time member.

(3) A person shall not be appointed as a full-time member for a term extending beyond the day on which he or she will attain the age of 65 years.

Term of office as President

176. (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.

Resignation

177. A person may resign as a member or President by writing signed and delivered to the Governor-General.

Termination of appointment

178. (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;

(b) is a full-time member and engages without the Minister’s consent in paid employment outside the duties of the member’s office;

(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;

(d) contravenes section 128; 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.

Remuneration and allowances

179. (1) A member shall 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 shall be paid such remuneration as the Minister determines in writing.

(2) A member shall be paid such allowances as the Minister determines in writing.

(3) This section has effect subject to the Remuneration Tribunals Act 1973.

Leave of absence

180. The Minister may grant to a full-time member leave of absence from duty on such terms and conditions as to remuneration or any other matter as the Minister specifies.

Other terms and conditions

181. 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.

Acting President

182. (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 shall not continue for more than 12 months to act during the vacancy.

Annual report

183. (1) The Panel shall, 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 shall 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

Constitution of Panel in relation to particular matters

184. (1) The Panel shall, 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 (in this section called 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) shall:

(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 a hearing 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 a hearing in relation to the matter, during the hearing or after the completion of the hearing but before the matter to which the hearing relates 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.

Disclosure of interests by members

185. (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) he or she shall disclose the interest to the parties involved in the matter; and

(b) except with the consent of all the parties involved in the matter, he or she shall not take part in the performance or exercise of the Panel’s functions or powers 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) if the President considers that the member should not take part, or should not continue to take part, in the performance or exercise of the Panel’s functions or powers in relation to the matter—the President shall revoke the direction given under subsection 184 (2) in relation to the matter; or

(b) in any other case—the President shall cause the interest of the member to be disclosed to the parties involved in the matter.

Application of Divisions 2 and 3 of Part 7

186. Divisions 2 and 3 of Part 7 apply in relation to the Panel, and in relation to a member of the Panel, as if:

(a) a reference in section 127 to the Commission included a reference to the Panel; and

(b) a reference in paragraph 128 (1) (a) to a member of the Commission included a reference to a member of the Panel.

Division 3—Hearings before Panel

Interpretation

187. (1) In this Division:

“hearing” means a hearing before the Panel and, in sections 189 and 190, includes a part of such a hearing.

(2) 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;

(b) a reference to a member were a reference to a member of the Panel as so constituted;

(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.

Power to hold hearings

188. (1) The Panel may hold hearings for the purposes of the performance or exercise of any of its functions and powers.

(2) The President may convene a hearing to be held at a place and time he or she determines.

(3) Subject to subsection (4), a hearing shall take place in public.

(4) Where a national scheme law requires the Panel to give a person an opportunity to appear at a hearing, the Panel may direct that the hearing or part of the hearing take place in public or take place in private.

(5) In exercising its discretion under subsection (4), the Panel shall have regard to:

(b) any unfair prejudice to a person’s reputation that would be likely to be caused if the hearing took place in public;

(d) any other relevant matter.

Who may be present at hearing

189. (1) The Panel 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 a national scheme law requires to be given the opportunity to appear at a hearing; or

(b) a person representing under section 194:

(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 the Panel directs that a hearing take place in private, a person shall not be present at the hearing unless he or she:

(a) is a member;

(b) is a member of the Commission, or a staff member, approved by the Panel; or

(i) a direction under subsection (1); or

(ii) subsection (2).

Penalty: $1,000 or imprisonment for 3 months, or both.

Panel may restrict publication of certain material

190. (1) Where, at a hearing, the Panel is satisfied that it is desirable to do so, the Panel may give directions preventing or restricting the publication of evidence given before, 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 shall have regard to:

(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;

(d) any other relevant matter.

Involvement of person entitled to appear at hearing

191. (1) This section applies where a national scheme law requires the Panel to give a person an opportunity to appear at a hearing and to make submissions and give evidence to it.

(2) The President shall determine 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 the Panel any written submissions that the person wishes the Panel to take into account in relation to the matter concerned.

Power to summon witnesses and take evidence

192. (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 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.

(2) At a hearing, the Panel 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.

(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.

(5) The Panel may permit a witness at a hearing to give evidence by tendering, and if the Panel so requires, verifying by oath, a written statement.

(6) A person who, pursuant to a summons issued under this section, 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 the Commission;

the prescribed allowances and expenses (if any).

(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.

Proceedings at hearings

193. (1) A hearing shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of national scheme laws and a proper consideration of the matters before the Panel permit.

(2) At a hearing, the Panel:

(a) is not bound by the rules of evidence; and

(b) may, on such conditions as it thinks fit, permit a person to intervene.

(3) The Panel shall observe the rules of natural justice at and in connection with a hearing.

(4) At a hearing, 2 members form a quorum.

(5) The President shall preside at all hearings at which he or she is present.

(6) If the President is not present at a hearing, the Deputy President shall preside.

(7) Questions arising at a hearing shall be determined by a majority of the votes of the members present at the hearing.

(8) The member presiding at a hearing has a deliberative vote but not a casting vote.

Representation at hearings

194. (1) At a hearing, a natural person may appear in person or be represented by an employee of the person approved by the Panel.

(2) A body corporate may be represented at a hearing by an officer of the body corporate approved by the Panel.

(3) 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 or officer of the association approved by the Panel.

(4) 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.

Panel to take account of evidence and submissions

195. The Panel shall take into account:

(a) evidence given, or a submission made, to it at a hearing; or

(b) a submission lodged with it under section 191;

when making a decision on a matter to which the evidence or submission relates.

Reference to Court of question of law arising at hearing

196. (1) The Panel 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), the Panel shall 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) the Panel shall send to the Court all documents that were before the Panel in connection with the hearing; and

(b) at the end of the proceeding in the Court in relation to the reference, the Court shall cause the documents to be returned to the Panel.

Protection of members etc.

197. (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.

(3) Subject to this Act, a person who is required by a summons under section 192 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.

Non-compliance with requirements made under section 192

198. A person shall not, without reasonable excuse, fail to comply with a requirement made under subsection 192 (1), (2) or (4).

Penalty: $1,000 or imprisonment for 3 months, or both.

False evidence

199. (1) A person shall not, at a hearing, give evidence that is false or misleading in a material particular.

Penalty: $1,000 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 evidence, believed on reasonable grounds that it was true and not misleading.

Contempt of Panel

200. (1) A person shall not:

(a) obstruct or hinder the Panel or a member in the performance or exercise of any of the Panel’s functions and powers; or

(b) disrupt a hearing.

Penalty: $5,000 or imprisonment for 1 year, or both.

(2) A person shall not, without reasonable excuse, contravene a direction given under subsection 190 (1).

Penalty: $5,000 or imprisonment for 1 year, or both.

(3) An offence constituted by a contravention of subsection (1) or (2) is punishable on summary conviction.

Powers of Court where non-compliance with section 192

201. (1) This section applies where the Panel, as constituted for the purposes of a particular hearing, is satisfied that a person has, without reasonable excuse, failed to comply with a requirement made under section 192 at, or in relation to, that hearing.

(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.

PART 11—COMPANIES AUDITORS AND LIQUIDATORS DISCIPLINARY BOARD

Division 1—Constitution of Disciplinary Board

Establishment of Disciplinary Board

202. A Companies Auditors and Liquidators Disciplinary Board is established.

Membership of Disciplinary Board

203. (1) The Disciplinary Board shall consist of:

(a) a Chairperson;

(b) a member selected by the Minister from a panel of 5 persons, being persons resident in Australia, nominated by the National Council of the Institute of Chartered Accountants in Australia; and

(c) a member selected by the Minister from a panel of 5 persons, being persons resident in Australia, nominated by the National Council of the Australian Society of Accountants.

(2) A person is not eligible for appointment as 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.

(3) The Chairperson and each of the other members shall be appointed by the Minister on a part-time basis.

Functions and powers of Disciplinary Board

204. The Disciplinary Board shall perform the functions, and may exercise the powers, conferred on it by or under a national scheme law.

Term of office

205. Subject to this Act, the Chairperson, each other member and each deputy of a 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 reappointment.

Resignation from office

206. A person may resign his or her office as Chairperson, member or deputy of a member by writing signed and delivered to the Minister.

Termination of appointment

207. (1) The Minister may terminate the appointment of the Chairperson, any other member or a deputy of a member because of misbehaviour or physical incapacity.

(2) If the Chairperson, any other member or a deputy of a member:

(a) is absent, without leave of the Disciplinary Board, from 3 consecutive meetings of the Board (being, in the case of a deputy of a member, meetings that the deputy is required to attend);

(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;

(d) becomes of unsound mind; or

(e) fails, without reasonable excuse, to comply with section 211; the Minister shall terminate his or her appointment.

Acting Chairperson

208. 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 office.

Appointment of deputies

209. (1) The Minister may:

(a) appoint a person selected by him or her from the panel referred to in paragraph 203 (1) (b) to be the deputy of the member referred to in that paragraph; and

(b) appoint a person selected by him or her from the panel referred to in paragraph 203 (1) (c) to be the deputy of the member referred to in that paragraph.

(2) A deputy of a member is entitled to attend meetings of the Disciplinary Board at which the member is not present and, while so attending, shall be deemed to be a member of the Disciplinary Board.

Meetings

210. (1) The Chairperson shall convene such meetings of the Disciplinary Board as he or she considers necessary for the performance of its functions.

(2) The Chairperson shall preside at all meetings of the Disciplinary Board.

(3) At a meeting of the Disciplinary Board, the Chairperson and one member constitute a quorum.

(4) A question arising at a meeting of the Disciplinary Board shall 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 shall be as the Disciplinary Board determines.

Disclosure of interests

211. (1) For the purposes of this section, “member” includes a deputy of a member.

(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 shall, 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.

(3) A disclosure under subsection (2) shall be recorded in the minutes of the meeting of the Disciplinary Board and the member shall not, unless the Minister or the Disciplinary Board otherwise determines:

(a) be present during any deliberation of the Disciplinary Board with respect to that matter; or

(b) take part in any decision of the Disciplinary Board with respect to that matter.

(4) For the purpose of the making of a determination by the Disciplinary Board 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 shall not:

(a) be present during any deliberation of the Disciplinary Board for the purpose of making the determination; or

(b) take part in the making by the Disciplinary Board of the determination.

Remuneration and allowances

212. (1) In this section:

“member” includes a deputy of a member.

(2) A member shall 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 shall be paid such remuneration as the Minister determines in writing.

(3) A member shall be paid such allowances as the Minister determines in writing.

(4) This section has effect subject to the Remuneration Tribunals Act 1973.

Confidentiality

213. (1) The Disciplinary Board shall 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:

(a) as required or permitted by a law of the Commonwealth or a prescribed law of a State or Territory; 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 the Commission’s, functions and powers;

shall be taken to be authorised disclosure of the information.

Annual report

214. (1) The Disciplinary Board shall, 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.

Division 2—Hearings by Disciplinary Board

Interpretation

215. In this Division:

“hearing” means a hearing held by the Disciplinary Board under this Division.

Hearings

216. (1) The Disciplinary Board may, at a meeting of the Disciplinary Board, hold a hearing for the purpose of the performance of its functions, or the exercise of its powers.

(2) Subject to subsection (3), hearings shall take place in private.

(3) If a person (other than the Commission) who is entitled to be given an opportunity to appear at a hearing requests that the hearing take place in public, the hearing shall, subject to any directions of the Disciplinary Board under subsection (5), take place in public.

(4) The Disciplinary Board 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 Disciplinary Board 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 Disciplinary Board 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 Disciplinary Board or of matters contained in documents lodged with or produced to the Disciplinary Board.

(6) Nothing in a direction given by the Disciplinary Board under subsection (4) or paragraph (5) (a) prevents the presence at a hearing of:

(a) a person representing the Commission pursuant to subsection 218 (3);

(b) a person who is entitled to be given an opportunity to appear at the hearing;

(d) a person representing, pursuant to subsection 218 (3), a person who, by reason of a direction given by the Disciplinary Board under subsection (4), or paragraph (5) (a), of this section is entitled to be present at the hearing.

(7) Where the Disciplinary Board directs that a hearing or part of a hearing take place in private, a person (other than the Chairperson, a member, or a member of the staff of the Disciplinary Board approved by the Disciplinary Board) shall 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: $1,000 or imprisonment for 3 months.

(8) Where the Disciplinary Board is required to give a person an opportunity to appear at a hearing, the Disciplinary Board shall 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 Disciplinary Board to take into account in relation to the matter.

(10) The Disciplinary Board shall take into account a submission made to or lodged with, or evidence adduced before, the Disciplinary Board when making any decision on the matter to which the submission or evidence relates.

Power to summon witnesses and take evidence

217. (1) The Chairperson or a member 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 Disciplinary Board may, at a hearing, take evidence on oath or affirmation and for that purpose the 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.

Proceedings at hearings

218. (1) At a hearing:

(a) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of national scheme laws and a proper consideration of the matters before the Disciplinary Board permit;

(b) the Disciplinary Board is not bound by the rules of evidence; and

(2) The Disciplinary Board shall observe the rules of natural justice at and in connection with a hearing.

(3) At a hearing:

(a) the Commission may be represented by:

(i) a staff member, or a member or acting member, of the Commission; or

(ii) a person authorised by the Commission for the purpose;

(b) a natural person may appear in person or may be represented by an employee of the person approved by the Disciplinary Board;

(c) a body corporate (other than the Commission) may be represented by an employee, or by a director or other officer, of the body corporate approved by the Disciplinary Board;

(d) an unincorporated association of persons or a member of an unincorporated association of persons may be represented by a member or officer of the association approved by the Disciplinary Board; 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 Disciplinary Board may permit a person appearing as a witness at a hearing to give evidence by tendering, and, if the Disciplinary Board thinks fit, verifying by oath, a written statement.

Failure of witnesses to attend and answer questions

219. (1) A person served, as prescribed, with a summons to appear as a witness at a hearing shall not, without reasonable excuse:

(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 Chairperson.

(2) A person appearing as a witness at a hearing shall not, without reasonable excuse:

(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;

(b) refuse or fail to answer a question that he or she is required to answer by the 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.

(3) A person shall not, at a hearing, give evidence that is false or misleading.

(4) A person shall not contravene subsection (1), (2) or (3).

Penalty: $1,000 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 Disciplinary Board 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;

(ii) when required by the 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 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).

Contempt of Disciplinary Board

220. (1) A person shall not:

(a) obstruct or hinder the Disciplinary Board or a member in the performance or exercise of any of the Disciplinary Board’s functions and powers; or

(b) disrupt a hearing.

Penalty: $1,000 or imprisonment for 3 months.

(2) A person shall not, without reasonable excuse, contravene a direction given under paragraph 216 (5) (b).

Penalty: $1,000 or imprisonment for 3 months.

(3) An offence constituted by a contravention of subsection (1) or (2) is punishable on summary conviction.

Protection of members etc.

221. (1) The Chairperson or a member has, in the performance of his or her functions or the exercise of his or her powers as the Chairperson or a member 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 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.

(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.

Hearings deemed to be judicial proceedings

222. A hearing shall, for the purposes of Part III of the Crimes Act 1914, be deemed to be a judicial proceeding.

Costs

223. (1) Where:

(a) the Disciplinary Board holds a hearing in relation to a person in accordance with subsection 1294 (1) of the Corporations Act 1989; and

(b) the Disciplinary Board 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 Disciplinary Board may require the person to pay an amount specified by the Disciplinary Board, being all or part of:

(d) the costs of the Commission in relation to the hearing; or

(e) the costs mentioned in paragraph (c) and the costs mentioned in paragraph (d).

(2) Where:

(a) the Disciplinary Board holds a hearing in relation to a person in accordance with subsection 1294 (1) of the Corporations Act 1989; and

(b) the Disciplinary Board 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 Disciplinary Board may require the Commission to pay an amount specified by the Disciplinary Board, being all or part of:

(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 Disciplinary Board requires a person to pay all or part of the costs of and incidental to a hearing held by the Disciplinary Board in relation to the person (whether or not the Disciplinary Board also requires the person to pay all or part of the costs of the Commission in relation to the hearing); or

(b) under subsection (2), the Disciplinary Board requires the Commission to pay all or part of the costs of and incidental to a hearing held by the Disciplinary Board in relation to a person (whether or not the Disciplinary Board also requires the Commission 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 the Commission, 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 Disciplinary Board requires a person to pay all or part of the costs of the Commission in relation to a hearing held by the Disciplinary Board in relation to the person (whether or not the Disciplinary Board also requires the person to pay all or part of the costs of and incidental to the hearing), the amount of the costs of the Commission 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 Disciplinary Board requires the Commission to pay all or part of the costs of a person in relation to a hearing held by the Disciplinary Board in relation to the person (whether or not the Disciplinary Board also requires the Commission 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 the Commission may be recovered in a court of competent jurisdiction as a debt due to the person.

PART 12—ACCOUNTING STANDARDS REVIEW BOARD

Establishment of Review Board

224. An Accounting Standards Review Board is established.

Membership of the Review Board

225. (1) The Review Board shall consist of the Director and such other members as hold office in accordance with this Part.

(2) The Director and each of the other members shall be appointed by the Minister on a part-time basis.

(3) The Minister shall appoint a person as the Director or 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, accounting, law or business.

Functions and powers

226. (1) The Review Board has such functions as are conferred on it by or under a national scheme law, and also the following functions:

(a) to develop a conceptual framework, not having the force of an accounting standard, for the purpose of evaluating proposed accounting standards;

(b) to review proposed accounting standards;

(d) to engage in such public consultation as may be necessary to decide whether or not it should make a proposed accounting standard;

(e) to make such changes to the form and content of a proposed accounting standard as it considers necessary.

(2) The Review Board has power to do whatever is necesssary for or in connection with, or reasonably incidental to, the performance of its functions.

(3) Without limiting the generality of subsection (2), the Review Board also has such powers as are conferred on it by or under a national scheme law.

Term of office

227. Subject to this Act, a person appointed as the Director or as a member holds office for such term of at most 3 years as is specified in the instrument of appointment, but is eligible for re-appointment.

Resignation from office

228. A person may resign as the Director or as a member by writing signed by the person and delivered to the Minister.

Termination of appointment

229. The Minister may terminate the appointment of the Director or a member:

(a) because of physical or mental incapacity; or

(b) if he or she 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.

Acting Director

230. The Minister may appoint a member to act as Director:

(a) during a vacancy in the office of Director, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the Director is absent from office.

Meetings

231. (1) The Director shall convene such meetings of the Review Board as he or she considers necessary for the performance of its functions.

(2) The Director shall preside at all meetings of the Review Board.

(3) At a meeting of the Review Board, the Director and one member constitute a quorum.

(4) A question arising at a meeting of the Review Board shall be determined by a majority of votes of the members present and voting.

(5) At a meeting, the Director 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 Review Board and for the conduct of business by the Review Board shall be as the Review Board determines.

Remuneration and allowances

232. (1) A member shall 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 shall be paid such remuneration as the Minister determines in writing.

(2) A member shall be paid such allowances as the Minister determines in writing.

(3) This section has effect subject to the Remuneration Tribunals Act 1973.

Confidentiality

233. (1) The Review Board shall 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:

(a) as required or permitted by a law of the Commonwealth or a prescribed law of a State or Territory; 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 Review Board’s functions or powers;

shall be taken to be authorised disclosure of the information. Annual Report

234. (1) The Review Board shall, 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 Review Board during the year that ended on 30 June in that year; and

(b) furnish to the Minister a copy of the report.

(2) Where a copy of a report is furnished to the Minister under subsection (1), the Minister shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the first-mentioned copy is received by him or her.

PART 13—JURISDICTION OF COURTS UNDER NATIONAL SCHEME LAWS

Jurisdiction of Federal Court of Australia

235. (1) Subject to subsection (2), jurisdiction is conferred on the Federal Court of Australia in any matter arising under a national scheme law.

(2) A prosecution for an offence against a national scheme law shall not be instituted in the Federal Court of Australia.

Jurisdiction of State and Territory Supreme Courts

236. (1) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977, the Supreme Court of each State (other than the Northern Territory) is invested with federal jurisdiction in any matter arising under a national scheme law.

(2) To the extent the Constitution permits, jurisdiction is conferred on the Supreme Court of each Territory, and of the Northern Territory, in any matter arising under a national scheme law.

(3) The jurisdiction with which subsection (1) invests the Supreme Court of a State, or that subsection (2) confers on the Supreme Court of a Territory or of the Northern Territory:

(a) is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject;

(b) is exclusive of the jurisdiction of any other court of that State or Territory, other than a court to which section 41 of the Family Law Act 1975 applies by virtue of a Proclamation made under subsection 41 (2) of that Act; and

Transfer of proceedings

237. (1) A civil proceeding, under a national scheme law, in a court having jurisdiction under section 235 or 236, or an application in such a proceeding, may, on the application of a party made at any stage or of the court’s own motion, be transferred by the court to another court having jurisdiction in the matters for determination in the proceeding or application.

(2) Where, under subsection (1), a court transfers a proceeding, or an application in a proceeding, to another court:

(a) the Registrar or other proper officer of the first-mentioned court shall transmit to the Registrar or other proper officer of the other court all documents filed of record in the first-mentioned court in respect of the proceeding or application, as the case may be; and

(b) the other court shall proceed as if:

(i) the proceeding had been originally instituted in the other court;

(ii) the same proceedings had been taken in the other court as were taken in the first-mentioned court; and

(iii) in a case where an application is transferred—the application had been made in the other court.

Courts to act in aid of each other

238. All courts having jurisdiction in matters arising under national scheme laws, the Judges of those courts and the officers of, or under the control of, those courts shall severally act in aid of, and be auxiliary to, each other in all such matters.

Appeals from State and Territory Supreme Courts

239. (1) An appeal lies to the Federal Court of Australia from a judgment or order of another court exercising jurisdiction that the other court has under section 236.

(2) An appeal lies to the High Court, with special leave of the High Court, from a judgment or order of a kind referred to in subsection (1).

(3) Subject to subsections (1) and (2), no appeal lies from a judgment or order of a kind referred to in subsection (1).

Effect of Part on other laws

240. Nothing in this Part affects the operation of section 68 of the Judiciary Act 1903, or of the Jurisdiction of Courts (Cross-vesting) Act 1987.

PART 14—THE PARLIAMENTARY COMMITTEE

Establishment and membership

241. (1) As soon as practicable after the commencement of this Part and after the commencement of the first session of each Parliament, a joint

committee of members of the Parliament, to be known as the Parliamentary Joint Committee on Corporations and Securities, shall be appointed.

(2) The Parliamentary Committee shall consist of 10 members, of whom:

(a) 5 shall be senators appointed by the Senate; and

(b) 5 shall be members of the House of Representatives appointed by that House.

(3) The appointment of members by a House shall 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;

(b) the President of the Senate;

(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;

(b) if he or she becomes the holder of an office referred to in a paragraph of subsection (4);

(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.

Powers and proceedings

242. Subject to this Act, all matters relating to the Parliamentary Committee’s powers and proceedings shall be determined by resolution of both Houses.

Duties

243. The Parliamentary Committee’s duties are:

(a) to inquire into, and report to both Houses on:

(i) activities of the Commission 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 any national scheme law, 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 a national scheme law;

(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

Review by Administrative Appeals Tribunal of certain decisions

244. (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 the Commission:

(a) to make an order under section 72, 73 or 74;

(b) to make an order under subsection 75 (1) varying an order in force under Division 8 of Part 3; or

Validity of certain actions

245. 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;

(b) there was a defect or irregularity in connection with the appointment;

(d) the occasion for the person to act had not arisen or had ceased.

Liability for damages

246. None of the following:

(a) the Commission;

(b) the Advisory Committee;

(d) a member of the Advisory Committee;

(e) a member of the Panel;

(f) a person appointed for the purposes of this Act or of any other prescribed Act;

(g) a staff member or a person who is, or is a member of, a Commission delegate or is authorised to perform or exercise a function or power of, or on behalf of, the Commission;

(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 the Advisory Committee;

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 a national scheme law or a prescribed law of the Commonwealth or a Territory.

Duplicate seals

247. (1) As well as the Commission’s common seal, there shall be such duplicates of that seal as the Commission directs.

(2) A document to which a duplicate seal of the Commission is affixed shall be deemed to have the Commission’s common seal affixed to it.

Judicial notice of Commission’s seal and members’ signatures

248. (1) A court shall take judicial notice of the Commission’s common seal affixed to a document and, unless the contrary is established, shall presume that it was duly affixed.

(2) A court shall 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 reference to a court includes a reference to:

(a) a federal court and a court of a State or Territory;

(b) a Judge of a court referred to in paragraph (a); and

and, in relation to a person of a kind referred to in paragraph (c), a reference to taking judicial notice is a reference to taking the same notice as would be taken by a court.

Arrangements with the States and Territories

249. (1) The Minister may make with an appropriate officer of a State or Territory an arrangement about any matter connected with:

(a) the administration of a national scheme law; or

(b) the performance or exercise of a function or power of the Commission or the Advisory Committee.

(2) An arrangement may be made under subsection (1) about:

(a) the transfer to the Commission, the Advisory Committee or the Commonwealth of books in the possession of, or of an authority of, the State or Territory, or of copies of such books;

(b) the acquisition or use, by the Commission, the Advisory Committee or the Commonwealth, of offices or facilities of, or of an authority of, the State or Territory; or

(c) a delegation under section 102 to an authority of the State or Territory or to an officer or employee of, or of an authority of, the State or Territory.

(3) An arrangement under subsection (1) may provide for the State or Territory to make available, from time to time as agreed under the arrangement, a person who is, or persons each of whom is, an officer or employee of, or of an authority of, the State or Territory to perform services for the Commission or the Advisory Committee in connection with the performance or exercise of any of the functions or powers of the Commission or the Advisory Committee, as the case may be.

(4) An arrangement under subsection (1) may provide for the Commonwealth to reimburse the State or Territory in respect of matters to which the arrangement relates.

(5) Nothing in this section limits the generality of anything else in it.

Acquisition of State or Territory books

250. (1) The Minister, or the Commission with the Minister’s written approval, may declare in writing that specified State or Territory books relating to:

(a) corporations, or foreign companies, that are entitled or required to be registered under a national scheme law; or

(b) persons who are registered for any purpose, hold a licence, have applied to be so registered or for a licence, or are deemed to be so registered or to hold a licence, under a national scheme law;

are vested in the Commission.

(2) Where the Minister or the Commission is satisfied that:

(a) access to particular State or Territory books would:

(i) assist the Commission in the performance or exercise of any of its functions or powers; or

(ii) assist in ensuring compliance with a national scheme law; or

(b) particular State or Territory books may relate to an alleged or suspected contravention of a kind referred to in paragraph 14 (2) (a) or (b);

the Minister, or the Commission with the Minister’s approval, as the case may be, may declare in writing:

(d) that those books are vested in the Commission.

(3) In determining for the purposes of this section whether or not a particular State or Territory book would assist as mentioned in paragraph (2) (a), the fact that:

(a) a copy of the particular book;

(b) a book of which the particular book is a copy; or

is available to the Commission from another source shall be disregarded.

(4) Where an instrument is executed under subsection (1) or (2), the Commission shall:

(a) cause a copy of the instrument to be published in the Gazette; and

(b) cause a copy of the instrument to be given to the State, Territory or authority in whose possession the books are.

(5) On publication under subsection (4) of a copy of an instrument, the books vest in the Commission by force of this subsection.

(6) Where books that have vested in the Commission under subsection (5) are in the possession of a State or Territory, or of an authority of a State or Territory, the State, Territory or authority, as the case may be, shall deliver the books to the Commission at such reasonable place, and within such reasonable period, as are specified in a notice in writing given by the Commission to the State, Territory or authority.

(7) Where a State or Territory, or an authority of a State or Territory, has delivered books to the Commission under subsection (6), the Commission shall permit that State or Territory, or an authority of that State or Territory:

(a) to inspect at all reasonable times, free of charge, any of the books; and

(b) to make copies of, or take extracts from, any of the books;

for the purposes of administering a law of that State or Territory.

(8) Where the operation of this section results in the acquisition of property from a person (other than a Territory or an authority of Territory)

otherwise than on just terms, the Commonwealth is liable to pay compensation to the person in respect of the acquisition.

(9) The amount of compensation payable under subsection (8) is such reasonable amount as is agreed on between the person and the Commonwealth or, failing agreement, as is determined by the Court.

(10) The Commission is liable to reimburse a State, Territory or authority for all reasonable costs incurred by the State, Territory or authority in complying with subsection (6).

(11) This section binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island.

(12) In this section:

“State or Territory books” means books in the possession of, or of an authority of, a State or Territory;

“Territory” includes the Northern Territory.

Regulations

251. (1) The Governor-General may make regulations, not inconsistent with this Act, 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.

[Minister’s second reading speech made in—

House of Representatives on 25 May 1988

Senate on 14 October 1988]