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Corporations Act 1989

Authoritative Version
Act No. 109 of 1989 as made
An Act to enact a national law about corporations, securities and the futures industry, and for other purposes
Date of Assent 14 Jul 1989
Date of repeal 15 Jul 2001
Repealed by Corporations (Repeals, Consequentials and Transitionals) Act 2001

Commonwealth Coat of Arms of Australia

Corporations Act 1989

No. 109 of 1989

TABLE OF CHAPTERS AND PARTS

CHAPTER 1—INTRODUCTORY

PART 1.1—PRELIMINARY

PART 1.2—INTERPRETATION

PART 1.3—APPLICATION

CHAPTER 2—CONSTITUTION OF COMPANIES

PART 2.1—RESTRICTIONS ON FORMING CERTAIN ENTITIES

PART 2.2—REGISTRATION OF COMPANIES

PART 2.3—LEGAL CAPACITY, POWERS AND STATUS

PART 2.4—MEMBERSHIP AND SHARE CAPITAL

CHAPTER 3—INTERNAL ADMINISTRATION

PART 3.1—REGISTERED OFFICE AND NAME

PART 3.2—OFFICERS

PART 3.3—MEETINGS AND PROCEEDINGS

PART 3.4—OPPRESSIVE CONDUCT OF AFFAIRS

PART 3.5—CHARGES

PART 3.6—ACCOUNTS

PART 3.7—AUDIT

PART 3.8—ANNUAL RETURN

CHAPTER 4—VARIOUS CORPORATIONS

PART 4.1—REGISTRATION OF CERTAIN BODIES

PART 4.2—NAMES

PART 4.3—NO LIABILITY COMPANIES

PART 4.4—INVESTMENT COMPANIES

PART 4.5—FINANCIAL STATEMENTS OF AUSTRALIAN BANKS AND LIFE INSURANCE CORPORATIONS


 

TABLE OF CHAPTERS AND PARTS—continued

CHAPTER 5—EXTERNAL ADMINISTRATION

PART 5.1—ARRANGEMENTS AND RECONSTRUCTIONS

PART 5.2—RECEIVERS AND MANAGERS

PART 5.3—OFFICIAL MANAGEMENT

PART 5.4—WINDING UP BY THE COURT

PART 5.5—VOLUNTARY WINDING UP

PART 5.6—WINDING UP GENERALLY

PART 5.7—WINDING UP BODIES OTHER THAN COMPANIES

PART 5.8—OFFENCES

PART 5.9—MISCELLANEOUS

CHAPTER 6—ACQUISITION OF SHARES

PART 6.1—INTERPRETATION

PART 6.2—CONTROL OF ACQUISITION OF SHARES

PART 6.3—TAKEOVER SCHEMES

PART 6.4—TAKEOVER ANNOUNCEMENTS

PART 6.5—PROVISIONS RELATING TO BOTH TAKEOVER OFFERS AND TAKEOVER ANNOUNCEMENTS

PART 6.6—LIABILITY FOR MIS-STATEMENTS

PART 6.7—SUBSTANTIAL SHAREHOLDINGS

PART 6.8—POWER TO OBTAIN INFORMATION AS TO BENEFICIAL OWNERSHIP OF SHARES

PART 6.9—POWERS OF COMMISSION AND CORPORATIONS AND SECURITIES PANEL, AND ANCILLARY POWERS OF COURT

PART 6.10—POWERS OF COURT

PART 6.11—MISCELLANEOUS

PART 6.12—STATEMENTS

PART 6.13—TRANSITIONAL

CHAPTER 7—SECURITIES

PART 7.1—INTERPRETATION

PART 7.2—SECURITIES EXCHANGES

PART 7.3—PARTICIPANTS IN THE SECURITIES INDUSTRY

PART 7.4—CONDUCT OF SECURITIES BUSINESS

PART 7.5—DEALERS ACCOUNTS AND AUDIT

PART 7.6—MONEY AND SCRIP OF DEALERS CLIENTS

PART 7.7—REGISTERS OF INTERESTS IN SECURITIES

PART 7.8—DEPOSITS WITH STOCK EXCHANGES

PART 7.9—FIDELITY FUNDS

PART 7.10—THE NATIONAL GUARANTEE FUND

PART 7.11—CONDUCT IN RELATION TO SECURITIES

PART 7.12—OFFERING SECURITIES FOR SUBSCRIPTION OR PURCHASE

PART 7.13—TITLE TO, AND TRANSFER OF, SECURITIES

PART 7.14—MISCELLANEOUS

CHAPTER 8—THE FUTURES INDUSTRY

PART 8.1—INTERPRETATION

PART 8.2—FUTURES EXCHANGES, CLEARING HOUSES AND FUTURES ASSOCIATIONS

PART 8.3—PARTICIPANTS IN THE FUTURES INDUSTRY

PART 8.4—CONDUCT OF FUTURES BUSINESS

PART 8.5—ACCOUNTS AND AUDIT

PART 8.6—FIDELITY FUNDS

PART 8.7—OFFENCES

PART 8.8—MISCELLANEOUS


 

TABLE OF CHAPTERS AND PARTS—continued

CHAPTER 9-MISCELLANEOUS

PART 9.1—REGISTERS AND REGISTRATION OF DOCUMENTS

PART 9.2—REGISTRATION OF AUDITORS AND LIQUIDATORS

PART 9.3—BOOKS

PART 9.4—OFFENCES

PART 9.5—POWERS OF COURTS

PART 9.6—PROCEEDINGS

PART 9.7—UNCLAIMED PROPERTY

PART 9.8—RULES AND REGULATIONS

PART 9.9—MISCELLANEOUS

TABLE OF PROVISIONS

CHAPTER I—INTRODUCTORY

PART 1.1—PRELIMINARY

Section

1.           Short title

2.           Commencement

3.           Application to the Crown

4.           Extension to external Territories

5.           Commission has general administration of Act

PART 1.2—INTERPRETATION

Division 1—General

6.           Effect of this Part

7.           Location of other interpretation provisions

8.           Interpretation provisions to operate distributively

9.           Dictionary

Division 2Associates

10.         Effect of Division

11.         Associates of bodies corporate

12.         Matters relating to voting shares

13.         References in Chapter 7

14.         References in Chapter 8

15.         General

16.         Exclusions

17.         Associates of composite persons

Division 3Carrying on business

18.         Carrying on business: otherwise than for profit

19.         Businesses of a particular kind

20.         Carrying on a business: alone or together with others

21.         Carrying on business in Australia or a State or Territory

22.         Carrying on business interstate

Division 4Dealing in futures contracts

23.         Acquiring a futures contract

24.         Disposing of a futures contract

25.         Dealing in futures contracts: general

26.         Dealing in futures contracts through intermediaries: first step

27.         Dealing in futures contracts through intermediaries: second and later steps

28.         Dealing in futures contracts, through intermediaries, on futures markets

29.         Own account dealings and transactions: futures contracts


 

TABLE OF PROVISIONS—continued

Section

Division 5Relevant interests in shares and securities

30.         Terminology used in this Division

31.         Basic rules

32.         Control of body corporate having power in relation to a share

33.         Control of prescribed percentage of voting power in body corporate having power in relation to a share

34.         Deemed relevant interest in advance of performance of agreement whose performance will give rise to a relevant interest

35.         Control of body corporate having a relevant interest by virtue of section 34

36.         Matters not affecting application of Division

37.         Body corporate may have a relevant interest in its own shares

38.         Exclusions: money-lenders

39.         Exclusions: certain trustees

40.         Exclusions: instructions to securities dealer to dispose of share

41.         Exclusions: honorary proxies

42.         Exclusions: holders of prescribed offices

43.         Prescribed exclusions

44.         Relevant interests in securities

45.         Effect of Division

Division 6Subsidiaries and related bodies corporate

46.         What is a subsidiary

47.         Control of a body corporate’s board

48.         Matters to be disregarded

49.         References in this Division to a subsidiary

50.         Related bodies corporate

Division 7Interpretation of other expressions

51.         Acquisition and disposal of shares

52.         Doing acts

53.         Affairs of a body corporate

54.         Chapter 8 agreements of the same kind

55.         Chapter 8 obligations and rights

56.         Classes of futures organisation membership

57.         Classes of shares

58.         Corresponding laws

59.         Debentures as consideration for acquisition of shares

60.         Directors

61.         Discretionary accounts

62.         Dormant bodies corporate

63.         Eligible circumstances

64.         Entering into a transaction in relation to shares or securities

65.         Excluded corporations

66.         issues, offers and invitations

67.         Exempt brokers and exempt futures advisers

68.         Exempt dealers and exempt investment advisers

69.         Exempt proprietary companies

70.         Extension of period for doing an act

71.         Futures advice business and eligible futures advice business

72.         Futures contract

73.         Futures representatives

74.         Group holding companies

75.         Inclusion in official list

76.         Incorporated in Australia

77.         Investment advice business and eligible investment advice business

78.         Invitations, offers and forms of application

79.         Involvement in contraventions

80.         Jervis Bay Territory deemed part of Australian Capital Territory

TABLE OF PROVISIONS—continued

Section

81.         New companies

82.         Offers and invitations to the public

83.         Officers, and other persons, in default

84.         Own account dealings and transactions: securities

85.         Participation interest

86.         Possession

87.         Proper authority from futures licensee; invalid futures authority

88.         Proper authority from securities licensee; invalid securities authority

89.         Qualified privilege

90.         Receivers and managers

91.         Being or becoming subject to a prohibition, order or notice under section 229, 230, 599 or 600

92.         Securities

93.         Securities business and eligible securities business

94.         Securities representatives

95.         Signing of certain documents by bodies corporate

96.         Statement in a prospectus

97.         Stock market not to include futures market

98.         Transfer days for bodies corporate

99.         Underlying securities

Division 8Miscellaneous interpretation rules

100.      Address of registered office etc.

101.      Amount of stock representing a number of shares

102.      Applications to be in writing

103.      Effect of certain contraventions of this Act

104.      Effect of provisions empowering a person to require or prohibit conduct

105.      Calculation of time

106.      Performance of functions by Commission delegate

107.      Headings to Chapters

108.      Parts of dollar to be disregarded in determining majority in value of creditors etc.

109.      References to persons, things and matters

PART 1.3—APPLICATION

110.      Application of Act in relation to certain banking and insurance

111.      Act not to apply in relation to State banking or insurance within that State

CHAPTER 2—CONSTITUTION OF COMPANIES

PART 2.1 —RESTRICTIONS ON FORMING CERTAIN ENTITIES

112.      Outsize partnerships and associations

113.      Certain corporations not to be formed under State or Territory company law

PART 2.2—REGISTRATION OF COMPANIES

Division 1—Incorporation by registration

114.      Formation of companies

115.      Classes of companies

116.      Proprietary companies

117.      Requirements as to memorandum

118.      Registration application

119.      Power to require production of unlodged memorandum

120.      Registration

121.      Certificate of registration

122.      Effect of certificate

123.      Incorporation

124.      Members


 

TABLE OF PROVISIONS—continued

Section

125.      Articles of association

Division 2—Registering certain State and Territory companies as companies

126.      Certain State and Territory companies not to carry on business unless registered under this Division

127.      State or Territory company may apply for registration

128.      Determination of application

129.      Registration of applicant as a company

130.      Constitution of Division 2 company

131.      Application of Act in relation to Division 2 companies

132.      Acts preparatory to external administration of Division 2 company

Division 3—Registering foreign companies as companies

133.      Foreign company may apply for registration

134.      Externally-administered body corporate not to be registered

135.      Prerequisites to eligibility

136.      Form and content of application

137.      Registration of applicant as a company

138.      Registered foreign company

139.      Constitution of Division 3 company

140.      Alterations of constitution

141.      Share warrants

Division 4Registering close corporations as companies

142.      Conversion of a close corporation into a company

143.      Requirements as to memorandum

144.      Registration application

145.      Power to require production of unlodged memorandum

146.      Registration

147.      Articles of association

Division 5—Companies registered under Division 2, 3 or 4

148.      Certificate of registration

149.      Effect of certificate

150.      Effect of registration under Division 2, 3 or 4

151.      Application of Act to Division 2, 3 or 4 company

152.      Establishment of registers and minute books

Division 6Activities statements

153.      Division 1 company

154.      Division 2, 3 or 4 company

155.      Further activities statement in certain cases where control of company is to change

Division 7Companies ceasing to be trading or banking corporations

156.      Commission to take action

157.      Presumptions about loss of trading or banking corporation status

158.      Company to take action

PART 2.3—LEGAL CAPACITY, POWERS AND STATUS

Division 1—Legal capacity and powers

159.      Interpretation

160.      Object of sections 161 and 162

161.      Legal capacity


 

TABLE OF PROVISIONS—continued

Section

162.      Restrictions on companies

163.      Application of certain State and Territory laws

164.      Persons having dealings with companies etc.

165.      Lodgment of documents etc.    not to constitute constructive notice

166.      Effect of fraud

Division 2Changes of status

167.      Change of status

168.      Change from public to proprietary company or vice versa

169.      Registration of Table A proprietary company’s constitution after change of status

170.      Default in complying with requirements as to proprietary companies

Division 3Memorandum and articles

171.      General provisions as to alteration of memorandum

172.      Alterations of memorandum

173.      Lodging, and taking effect, of resolutions passed under section 172

174.      Effect of memorandums of certain Division 2 companies

175.      Articles adopting Table A or B

176.      Alteration of articles

177.      Deemed proprietary company provisions

178.      Alteration of proprietary company provisions

179.      Constitution of companies limited by guarantee

180.      Operation of memorandum and articles

181.      Copies of memorandum and articles

Division 4Transactions on a companys behalf

182.      Confirmation of contracts and authentication and execution of documents

183.      Ratification of contracts made before formation of company

PART 2.4—MEMBERSHIP AND SHARE CAPITAL

Division 1—Membership generally

184.      Membership of company

185.      Membership of holding company

186.      Prohibition of carrying on business with fewer than statutory minimum number of members

Division 2Shares generally

187.      Return as to allotments

188.      Differences in calls and payments, reserve liability etc.

189.      Share warrants

190.      Power to issue shares at a discount

191.      Issue of shares at a premium

192.      Redeemable preference shares

193.      Power of company to alter its share capital

194.      Validation of shares improperly issued

195.      Special resolution for reduction of share capital

Division 3Class rights

196.      Commission to be informed of special rights carried by, or division or conversion of, shares

197.      Rights of holders of classes of shares

198.      Rights of holders of shares

199.      Rights of classes of members


 

TABLE OF PROVISIONS—continued

Section

200.      Rights of holders of preference shares to be set out in memorandum or articles

Division 4Maintenance of capital

201.      Dividends payable from profits only

202.      Company may pay interest out of capital in certain cases

203.      Restriction on application of capital of company

204.      Power to make certain payments

205.      Company financing dealings in its shares etc.

206.      Consequences of company financing dealings in its shares etc.

Division 5Register of members

207.      Division not to apply to mutual life assurance companies

208.      Notices relating to non-beneficial and beneficial ownership of shares

209.      Register and index of members

210.      Inspection and closing of register

211.      Consequences of default by agent

212.      Power of Court to rectify register

213.      Trustee etc.   may be registered as owner of shares

214.      Branch registers

Division 6Options

215.      Register of options

216.      Options over unissued shares

CHAPTER 3—INTERNAL ADMINISTRATION

PART 3.1—REGISTERED OFFICE AND NAME

217.      Registered office of company

218.      Notice of address of registered office and office hours

219.      Publication of company’s name and registration number

220.      Service of documents on company

PART 3.2—OFFICERS

221.      Directors

222.      Restrictions on appointment or advertisement of director

223.      Qualification of director

224.      Vacation of office

225.      Appointment of directors of public company to be voted on individually

226.      Validity of acts of directors and secretaries

227.      Removal of directors

228.      Age of directors

229.      Certain persons not to manage certain bodies corporate

230.      Court may order persons not to manage certain bodies corporate

231.      Disclosure of interests in contracts, property, offices etc.

232.      Duty and liability of officers of certain bodies corporate

233.      Liability of directors for debts etc.           incurred by body corporate acting as trustee

234.      Loans to directors

235.      Register of directors’ shareholdings etc.

236.      General duty to make disclosure

237.      Benefits for loss of, or retirement from, office

238.      Assignment of office

239.      Powers to require disclosure of directors’ emoluments

240.      Secretary

241.      Provisions indemnifying officers or auditors

242.      Register of directors, principal executive officers and secretaries


 

TABLE OF PROVISIONS—continued

Section

243.      Register of disqualified company directors and other officers

PART 3.3—MEETINGS AND PROCEEDINGS

244.      Statutory meeting and statutory report

245.      Annual general meeting

246.      Convening of general meeting on requisition

247.      Convening of meetings

248.      Articles as to right to demand a poll

249.      Quorum, chairman, voting etc. at meetings

250.      Proxies

251.      Power of Court to order meeting

252.      Circulation of members’ resolutions etc.

253.      Special resolutions

254.      Resolution requiring special notice

255.      Resolutions of exempt proprietary companies

256.      Lodgment etc.              of copies of certain resolutions and agreements

257.      Resolutions at adjourned meetings

258.      Minutes of proceedings

259.      Inspection of minute books

PART 3.4—OPPRESSIVE CONDUCT OF AFFAIRS

260.      Remedy in cases of oppression or injustice

PART 3.5—CHARGES

Division 1—Preliminary

261.      Interpretation and application

Division 2Registration

262.      Charges required to be registered

263.      Lodgment of notice of charge and copy of instrument

264.      Acquisition of property subject to charge

265.      Registration of documents relating to charges

266.      Certain charges void against liquidator or official manager

267.      Charges in favour of certain persons void in certain cases

268.      Assignment and variation of charges

269.      Satisfaction of, and release of property from, charges

270.      Lodgment of notices, offences etc.

271.      Company to keep documents relating to charges and register of charges

272.      Certificates

273.      Registration under other legislation relating to charges

274.      Power of Court to rectify register

275.      Charges of Division 2 company

276.      Charges of Division 3 company

277.      Power to exempt from compliance with certain requirements of Division

Division 3Order of priority

278.      Interpretation

279.      Priorities of charges

280.      General priority rules in relation to registered charges

281.      General priority rule in relation to unregistered charges


 

TABLE OF PROVISIONS—continued

Section

282.      Special priority rules

PART 3.6—ACCOUNTS

Division 1—Accounting standards

283.      Accounting standards

284.      Application of accounting standards: general

285.      Application of accounting standards: financial years

286.      Interpretation etc. of accounting standards

287.      Power of Board to require copy of accounts or group accounts

288.      Application of accounting standards approved under Companies Act 1981

Division 2—Accounting records

289.      Accounting records

Division 3—Financial years of holding company and subsidiaries

290.      Synchronisation

291.      Orders under corresponding laws

Division 4—Financial statements

292.      Profit and loss account

293.      Balance-sheet

294.      Steps to be taken before accounts made out

295.      Group accounts

296.      Audit of financial statements

297.      Financial statements to comply with regulations

298.      Financial statements to comply with applicable accounting standards

299.      Effect of sections 297 and 298

300.      Inclusion of comparative amounts for items required by accounting standards

Division 5Directors statements

301.      Statement to be attached to accounts

302.      Statement to be attached to group accounts

303.      Statements under this Division

Division 6—Directors reports

304.      Report on company other than group holding company

305.      Report on group holding company

306.      Report may omit prejudicial information

307.      Public companies

308.      Options

309.      Benefits under contracts with directors

310.      Reports generally

Division 7—Financial statements and directors reports

311.      Rounding off amounts

312.      Directors of holding company to obtain all necessary information

313.      Relief from requirements as to accounts and reports

314.      Orders under corresponding laws

315.      Members entitled to financial statements and reports

316.      Financial statements and reports to be laid before annual general meeting

317.      Commission may require company to lodge accounts etc.


 

TABLE OF PROVISIONS—continued

Section

318.      Contravention of Part

Division 8Inspection of records

319.      Inspection of records

320.      Disclosure of information

Division 9Transitional

321.      Application of this Part and Part 3.7 to Division 2 company

322.      Continued application to Division 2 company of requirements of corresponding law

323.      Division 3 or 4 companies

PART 3.7—AUDIT

324.      Qualifications of auditors

325.      When unlimited exempt proprietary company need not appoint auditor

326.      When exempt proprietary company need not appoint auditor

327.      Appointment of auditors

328.      Nomination of auditors

329.      Removal and resignation of auditors

330.      Effect of winding up on office of auditor

331.      Fees and expenses of auditors

332.      Powers and duties of auditors as to reports on accounts

333.      Obstruction of auditor

334.      Special provisions relating to borrowing corporations and guarantor bodies

PART 3.8—ANNUAL RETURN

335.      Annual return

336.      Annual activities statement

337.      Exemption of certain companies

338.      Information in annual return deemed to satisfy certain other lodgment requirements

339.      Division 2 company

CHAPTER 4—VARIOUS CORPORATIONS

PART 4.1—REGISTRATION OF CERTAIN BODIES

Division 1Registrable Australian corporations

340.      Registrable Australian corporation not to carry on business interstate unless registered

341.      Application for registration

342.      Cessation of business etc.

Division 2Foreign companies

343.      Foreign company not to carry on business in Australia unless registered

344.      Application for registration

345.      Appointment of local agent

346.      Local agent: how appointed

347.      Local agent: how removed

348.      Liability of local agent

349.      Balance-sheets and other documents

350.      Cessation of business etc.

351.      Principal Australian register of foreign company

352.      Branch registers in Australia

353.      Register kept under section 351 or 352

354.      Notifying Commission about register kept under section 351 or 352

355.      Effect of right to acquire shares compulsorily


 

TABLE OF PROVISIONS—continued

Section

356.      Index of members and inspection and closing of registers

357.      Certificate as to shareholding

Division 3Bodies registered under this Part

358.      Names

359.      Registered office

360.      Certificate of registration

361.      Notice of certain changes

362.      Publication of name etc.

363.      Service of documents on registered body

364.      Power to hold land

365.      Application of certain State and Territory laws

PART 4.2—NAMES

366.      Interpretation

367.      Available names

368.      Names of particular classes of companies

369.      Use of words “Limited” and “No Liability”

370.      Use of word “Proprietary”

371.      Abbreviations of words included in a company’s name

372.      Company with registration number as name

373.      Name of intended Division 1 company

374.      Name by which body corporate proposes to be registered as a company

375.      Proposed new name of company

376.      Name by which registrable body proposes to be registered

377.      New name or proposed new name of registered body

378.      Applications under sections 373 to 377

379.      Extension of reservation

380.      Cancellation of registration where body corporate dissolved or de-registered

381.      Registration remains in force until cancelled

382.      Change of name

383.      Omission of “Limited” in names of charitable and other companies

PART 4.3—NO LIABILITY COMPANIES

384.      Application of Act to no liability companies

385.      Shareholder not liable to calls or contributions

386.      Dividends payable on shares irrespective of amount paid up

387.      Calls: when due

388.      Forfeiture of shares

389.      Provisions as to sale of forfeited shares

390.      Shares held by, or in trust for, company

391.      Sale of shares on non-payment of calls valid although specific numbers not advertised

392.      Postponement of sale

393.      Redemption of forfeited shares

394.      Office to be open on day before sale

395.      Distribution of surplus on cessation of business on winding up

396.      Distribution of surplus on cessation of business within 12 months after incorporation

397.      Rights attaching to preference shares issued to promoters

398.      Restrictions on tribute arrangements

PART 4.4—INVESTMENT COMPANIES

399.      Interpretation

400.      Restrictions on borrowing by investment companies

401.      Restrictions on investments of investment companies

402.      Restrictions on underwriting by investment companies

403.      Special requirements as to articles and prospectus


 

TABLE OF PROVISIONS—continued

Section

404.      Investment company not to hold shares in other investment companies

405.      Investment company not to speculate in commodities

406.      Balance-sheets and accounts

407.      Investment fluctuation reserve

408.      Contraventions

PART 4.5—FINANCIAL STATEMENTS OF AUSTRALIAN BANKS AND LIFE INSURANCE CORPORATIONS

409.      Australian banks and life insurance corporations

CHAPTER 5—EXTERNAL ADMINISTRATION

PART 5.1—ARRANGEMENTS AND RECONSTRUCTIONS

410.      Interpretation

411.      Power to compromise with creditors and members

412.      Information as to compromise with creditors or members

413.      Provisions for facilitating reconstruction and amalgamation of Part 5.1 bodies

414.      Acquisition of shares of shareholders dissenting from scheme or contract approved by majority

415.      Notification of appointment of scheme manager and power of Court to require report

PART 5.2—RECEIVERS AND MANAGERS

416.      Interpretation

417.      Application of Part

418.      Persons not to act as receivers

419.      Liability of receiver

420.      Powers of receiver

421.      Duties of receiver with respect to bank accounts and accounting records

422.      Reports by receiver

423.      Supervision of receiver

424.      Receiver may apply to Court

425.      Power of Court to fix remuneration of receiver

426.      Receiver to enjoy qualified privilege in certain circumstances

427.      Notification of appointment of receiver

428.      Statement that receiver appointed

429.      Provisions as to information where receiver appointed

430.      Receiver may require reports

431.      Receiver may inspect books

432.      Lodging of accounts of receiver

433.      Payment of certain debts, out of property subject to floating charge, in priority to claims under charge

434.      Enforcement of duty of receiver to make returns

PART 5.3—OFFICIAL MANAGEMENT

435.      Interpretation

436.      Power of company to call meeting of creditors to appoint official manager

437.      Report as to affairs of company to be submitted to meeting of creditors

438.      Power to adjourn meeting

439.      Power of creditors to place company under official management

440.      Appointment of committee of management

441.      Notice of appointment and address of official manager

442.      Effect of resolution

443.      Six-monthly meetings of creditors and members

444.      Stay of proceedings

445.      Power to extend period of official management

446.      Extension of period of official management

447.      Appointment of official manager not to affect appointment and duties of auditor


 

TABLE OF PROVISIONS—continued

Section

448.      Duties of official manager

449.      Undue preferences in the case of official management

450.      Application and disposal of property during official management

451.      Official manager may apply to Court for directions

452.      Certain provisions applicable to official management

453.      Power of Court to terminate official management and give directions

454.      Resolution to place company under official management effective, subject to appeal

455.      Lodgment of office copy of Court order

456.      Termination of appointment and release of official manager

457.      Notification that company is under official management

458.      Functions of committee of management; appointment of deputy official manager

PART 5.4—WINDING UP BY THE COURT

Division 1—Order for winding up

459.      Winding up company that has ceased to be a trading or banking corporation

460.      Winding up company on the ground of insolvency

461.      General grounds on which company may be wound up by Court

462.      Standing to apply for winding up

463.      Court may order winding up of company that is being wound up voluntarily

464.      Application for winding up in connection with investigation under Commission Act

465.      Commencement of winding up by the Court

466.      Payment of preliminary costs etc.

467.      Powers of Court on hearing application

468.      Avoidance of dispositions of property, attachments etc.

469.      Application to be lis pendens

470.      Certain notices to be lodged

471.      Effect of winding up order

Division 2Court-appointed liquidators

472.      Power of Court to appoint official liquidator

473.      General provisions about liquidators

474.      Custody and vesting of company’s property

475.      Report as to company’s affairs to be submitted to liquidator

476.      Preliminary report by liquidator

477.      Powers of liquidator

478.      Settlement of list of contributories and application of property

479.      Exercise and control of liquidator’s powers

480.      Release of liquidator and dissolution of company

481.      Orders for release or dissolution

Division 3General powers of Court

482.      Power to stay or terminate winding up

483.      Delivery of property to liquidator

484.      Appointment of special manager

485.      Claims of creditors and distribution of property

486.      Inspection of books by creditors and contributories

487.      Power to arrest absconding contributory

488.      Delegation to liquidator of certain powers of Court

489.      Powers of Court cumulative

PART 5.5—VOLUNTARY WINDING UP

Division 1—Resolution for winding up

490.      Limitation on right to wind up voluntarily

491.      Circumstances in which company may be wound up voluntarily

492.      Commencement of winding up


 

TABLE OF PROVISIONS—continued

Section

493.      Effect of voluntary winding up

494.      Declaration of solvency

Division 2Members voluntary winding up

495.      Liquidators

496.      Duty of liquidator to call creditors meeting in case of insolvency

Division 3Creditors voluntary winding up

497.      Meeting of creditors

498.      Power to adjourn meeting

499.      Liquidators

500.      Execution and civil proceedings

Division 4Voluntary winding up generally

501.      Distribution of property of company

502.      Appointment of liquidator

503.      Removal of liquidator

504.      Review of liquidator’s remuneration

505.      Acts of liquidator valid etc.

506.      Powers and duties of liquidator

507.      Power of liquidator to accept shares etc. as consideration for sale of property of company

508.      Annual meeting of creditors

509.      Final meeting and dissolution

510.      Arrangement: when binding on creditors

511.      Application to Court to have questions determined or powers exercised

512.      Costs

PART 5.6—WINDING UP GENERALLY

Division 1—Preliminary

513.      Application

Division 2Contributories

514.      Where Division applies

515.      General liability of contributory

516.      Company limited by shares

517.      Company limited by guarantee

518.      Company limited both by shares and by guarantee

519.      Exceptions for former unlimited company

520.      Past member: later debts

521.      Person ceasing to be a member a year or more before winding up

522.      Present members to contribute first

523.      Past member of former unlimited company

524.      Past member of former limited company

525.      Debts to a member

526.      Liability on certain contracts

527.      Nature of contributory’s liability

528.      Death of contributory

529.      Bankruptcy of contributory

530.      Division 2 company

Division 3Liquidators

531.      Books to be kept by liquidator

532.      Disqualification of liquidator


 

TABLE OF PROVISIONS—continued

Section

533.      Reports by liquidator

534.      Prosecution by liquidator of delinquent officers and members

535.      Liquidator has qualified privilege in certain circumstances

536.      Supervision of liquidators

537.      Notice of appointment and address of liquidator

538.      Regulations relating to money etc.           received by liquidator

539.      Liquidator’s accounts

540.      Liquidator to remedy defaults

Division 4General

541.      Notification that company is in liquidation

542.      Books of company

543.      Investment of surplus funds on general account

544.      Unclaimed property to be paid to Minister

545.      Expenses of winding up where property insufficient

546.      Resolutions passed at adjourned meetings of creditors and contributories

547.      Meetings to ascertain wishes of creditors or contributories

Division 5Committees of inspection

548.      Convening of meetings by liquidator for appointment of committee of inspection

549.      Proceedings of committee of inspection

550.      Vacancies on committee of inspection

551.      Member of committee not to accept extra benefit

552.      Powers of Court where no committee of inspection

Division 6Proof and ranking of claims

553.      Proofs of debts

554.      Computation of debts

555.      Debts proved to rank equally except as otherwise provided

556.      Priority payments

557.      Orders under section 91 of the Commission Act

558.      Debts due to employees

559.      Debts of a class to rank equally

560.      Advances in respect of wages, retrenchment payments and leave of absence

561.      Priority of employees’ claims over floating charges

562.      Insurance against liabilities to third parties

563.      Provisions relating to injury compensation

564.      Power of Court to make orders in favour of certain creditors

Division 7Effect on other transactions

565.      Undue preference

566.      Effect of floating charge

567.      Liquidator’s right to recover in respect of certain transactions

568.      Disclaimer of onerous property

569.      Executions, attachments etc.    before winding up

570.      Duties of sheriff after receiving notice of application

Division 8Dissolution

571.      Power of Court to declare dissolution of company void

572.      Notice by Commission of intention to deregister defunct company

573.      Application to Commission for deregistration of defunct company

574.      Power of Commission to deregister defunct company

575.      Commission to act as representative of defunct company

576.      Outstanding property of defunct company to vest in Commission

577.      Outstanding interests in property: how disposed of

578.      Liability of Commission and Commonwealth as to property vested in Commission

TABLE OF PROVISIONS—continued

Section

579.      Accounts

Division 9Co-operation between Australian and foreign courts in external administration matters

580.      Interpretation

581.      Courts to act in aid of each other

PART 5.7—WINDING UP BODIES OTHER THAN COMPANIES

582.      Application of Part

583.      Winding up Type A bodies

584.      Winding up Type B bodies

585.      Insolvency of Part 5.7 body

586.      Contributories in winding up of Part 5.7 body

587.      Power of Court to stay or restrain proceedings

588.      Outstanding property of defunct Part 5.7 body

PART 5.8—OFFENCES

589.      Interpretation and application

590.      Offences by officers of certain companies

591.      Liability where proper accounts not kept

592.      Offences relating to incurring of debts or fraudulent conduct

593.      Powers of Court

594.      Certain rights not affected

595.      Inducement to be appointed liquidator or official manager

596.      Frauds by officers

PART 5.9—MISCELLANEOUS

597.      Examination of persons concerned with corporations

598.      Orders against persons concerned with corporations

599.      Court may disqualify person from acting as director etc.

600.      Commission may order persons not to manage corporations

601.      Operation of certain Ordinances

CHAPTER 6—ACQUISITION OF SHARES

PART 6.1—INTERPRETATION

602.      Effect of this Part

603.      Definitions

604.      Acquisition of shares by “special” transaction

605.      Acquisition and disposal of, entitlement to, and relevant interests in, marketal securities other than shares

606.      Announcement by representative of dealer

607.      Approved manner of sending documents

608.      Doing acts

609.      Entitlement to shares

610.      Inadvertence or mistake etc.

611.      Knowledge of employee or agent imputed to employer or principal

612.      Odd lots

613.      Remedial orders

614.      Persons to whom Chapter applies

PART 6.2—CONTROL OF ACQUISITION OF SHARES

615.      Restrictions on acquisitions

616.      Acquisitions permitted under takeover schemes

617.      Certain acquisitions permitted under takeover announcements


 

TABLE OF PROVISIONS—continued

Section

618.      Acquisition of not more than 3% of voting shares permitted in each 6 months

619.      Acquisition of shares in small companies or with consent of shareholders

620.      Acquisition on market during takeovers

621.      Acquisition as a result of pari passu allotments

622.      Acquisitions pursuant to prospectus

623.      Acquisitions approved by resolution of target company

624.      Allotment by newly formed company

625.      Acquisition under compromise or arrangement approved by Court

626.      Acquisition by liquidator

627.      Acquisition by exercise of option or right

628.      Acquisition of shares as consideration for takeover offer

629.      Downstream acquisition resulting from acquisition of shares in a listed company

630.      Acquisition by exercise of power vested in lender

631.      Acquisition by will or operation of law

632.      Acquisition of forfeited shares

633.      Acquisitions permitted by regulations or by the Commission

PART 6.3—TAKEOVER SCHEMES

Division 1—Nature of takeover offers

634.      Offers must comply with this Division

635.      Full takeover schemes and proportional takeover schemes

636.      Identical offers

637.      Service of Part A statement and copy of offer on target company

638.      Contents of offers

639.      Part A statement, and Part B statement if available, to accompany offers

640.      Service on Commission of copies of documents accompanying offers

641.      Offer price

642.      Offers not to contain certain conditions

Division 2Part A statements and takeover offers

643.      Additional matter in Part A statement

644.      Registration of Part A statements and offers

645.      Extension of time for paying consideration

646.      Notice of offers to be served

Division 3Part B statements

647.      Part B statement

648.      Offeror connected with target company

Division 4Effect of offers in special circumstances

649.      Acquisition by third party of shares subject to takeover offer

650.      Acceptance of takeover offers by trustees, nominees etc.

651.      Avoidance of odd lots where takeover offer relates to proportion of offeree’s shares

652.      Offeror not entitled to bid for balance where takeover offer relates to proportion of offeree’s shares

Division 5Withdrawal and variation of offers

653.      Withdrawal of offers

654.      Circumstances in which offers may be varied

655.      Variation of consideration

656.      Variation of offer period

657.      Manner of varying offers

658.      Effect of variation on offeree who has accepted offer

659.      Registration of notices of variation

660.      Acquisition not affected by contravention


 

TABLE OF PROVISIONS—continued

Section

661.      Section 645 not affected

Division 6Conditional offers and contracts

662.      Takeover offers not to be subject to certain terms or conditions

663.      Declaration where takeover offers are conditional

Division 7Effect of outside acquisitions

664.      Effect on conditional offers

665.      Effect on offers

666.      Effect on contracts

667.      Notice to offerees where cash not the sole consideration

668.      Notice to offerees where cash consideration to constitute a loan

Division 8Takeover approval provisions

669.      Definitions

670.      Effect of Division

671.      Constitution may contain takeover approval provisions

672.      Provisions relating to the inclusion, effect and renewal of takeover approval provisions

PART 6.4—TAKEOVER ANNOUNCEMENTS

Division 1Offers constituted by announcement

673.      Nature of offers

674.      Making of announcement

675.      Acceptance of offers

676.      Price to be specified

677.      Acquisitions at higher price

678.      Offer period

679.      Part C statements

680.      Service on Commission of copies of documents accompanying offers

681.      Variation of offers

682.      Liability of dealers

Division 2Response of target company

683.      Part D statement

Division 3Withdrawal and suspension of offers

684.      Withdrawal of offers

685.      Suspension of acceptance of offers made under takeover announcement

PART 6.5—PROVISIONS RELATING TO BOTH TAKEOVER OFFERS AND TAKEOVER ANNOUNCEMENTS

Division 1—Restrictions on offerors

686.      Restriction on disposal of shares by offeror

Division 2Notification of acquisitions and disposals of shares in listed companies

687.      Periods in respect of which notification to be given

688.      Persons by whom notification to be given

689.      Notifications by offeror

690.      Notifications by other persons acquiring more than 5% shareholding

691.      Notifications by persons ceasing to hold more than 5% shareholding


 

TABLE OF PROVISIONS—continued

Section

692.      Notifications of changes in shareholding exceeding 1% by persons with more than 5% shareholding

693.      Particulars to be notified

694.      Person need serve only one notice per day

695.      Defence

Division 3Notification of acquisition of shares in unlisted company

696.      Notification of offerors entitlement

Division 4Prohibition on additional benefits

697.      Persons selling shares before the making of offers not to be given additional benefits in certain cases

698.      Offerees not to be given benefits except under takeover scheme or takeover announcement

Division 5Obligations of target company

699.      Obligations of target company to provide information

700.      Expenses of directors of target company

Division 6Rights of offerors and shareholders

701.      Provisions relating to dissenting shareholders

702.      Money or property unclaimed by dissenting shareholders

703.      Rights of remaining shareholders and holders of options and notes

PART 6.6—LIABILITY FOR MIS-STATEMENTS

704.      Mis-statements in Part 6.12 statements etc.

705.      Mis-statements in public statements, advertisements etc.

706.      Existing causes of action not affected

PART 6.7—SUBSTANTIAL SHAREHOLDINGS

707.      Companies in relation to which Part applies

708.      Substantial shareholdings and substantial shareholders

709.      Substantial shareholder to notify company of interests

710.      Substantial shareholder to notify company of changes in interests

711.      Person who ceases to be substantial shareholder to notify company

712.      References to operation of Division 5 of Part 1.2

713.      Copy of notice to be served on securities exchanges

714.      Commission may extend period for giving notice under this Part

715.      Company to keep register of substantial shareholders

716.      Civil remedy where Part contravened

PART 6.8—POWER TO OBTAIN INFORMATION AS TO BENEFICIAL OWNERSHIP OF SHARES

717.      Definitions

718.      Primary notice

719.      Secondary notice

719a.    Withdrawal of request under subsection 718 (2)

720.      Commission may provide information obtained pursuant to a notice

721.      Request by person to whom notice given

722.      Compliance with notices

723.      Consequences of Commission’s decision on a request

723a.    Fee for complying with a notice given by a company under this Part

724.      Register of notices

725.      No notice of rights


 

TABLE OF PROVISIONS—continued

Section

726.      Civil liability

727.      Exceptions to criminal or civil liability

PART 6.9—POWERS OF COMMISSION AND ANCILLARY POWERS OF COURT

728.      Power of Commission to exempt from compliance with this Chapter

729.      Power of Court to enforce exemption condition

730.      Power of Commission to modify operation of this Chapter

731.      Commission to take account of certain matters

732.      Occurrence of unacceptable circumstances

733.      Declarations by Corporations and Securities Panel

734.      Power of Panel to make orders

735.      Miscellaneous provisions relating to orders by Panel

736.      Orders by the Court where Panel order contravened

736a.    Commission may publish report about application to Panel or Court

PART 6.10—POWERS OF COURT

737.      Orders where prohibited acquisitions take place

738.      Orders where offers not sent pursuant to Part A statement

739.      Orders to protect rights under takeover schemes or announcements

740.      Powers of Court in relation to unfair or unconscionable agreements, payments or benefits

741.      Powers of Court with respect to defaulting substantial shareholder

742.      Powers of Court where beneficial ownership of shares not disclosed

743.      Contravention due to inadvertence etc.

744.      Miscellaneous provisions relating to orders

PART 6.11—MISCELLANEOUS

745.      Recording of resolutions

746.      Announcements of proposed takeover bids

747.      Service of documents and publication of notices

748.      Regulations

PART 6.12—STATEMENTS

749.      Interpretation of certain clauses in section 750

750.      Part A, B, C and D statements

PART 6.13—TRANSITIONAL

751.      Application

752.      Definition

753.      Acquisitions pursuant to Part A statements served before commencement of Chapter

754.      Acquisitions pursuant to takeover announcements made before commencement of Chapter

755.      Application of State or Territory laws to excluded acquisitions not affected

756.      Acts of NCSC deemed to be acts of Commission

757.      Acts done before commencement of Chapter

758.      Notices of substantial shareholdings

759.      Information as to beneficial ownership of shares

CHAPTER 7—SECURITIES

PART 7.1—INTERPRETATION

760.      Effect of this Part

761.      Definitions

762.      Conduct


 

TABLE OF PROVISIONS—continued

Section

763.      Odd lot

764.      References to doing acts

765.      Misleading representation

766.      Trading in securities

PART 7.2—SECURITIES EXCHANGES

767.      Conducting unauthorised stock markets

768.      Trading on unauthorised stock markets

769.      Approval of stock exchange

770.      Approval of approved securities organisation

771.      Exempt stock market

772.      Publication of instruments executed under section 769, 770 or 771

773.      Auction, by licensed auctioneer, of forfeited shares

774.      Commission to be notified of amendments to rules

775.      Power of Commission to prohibit trading in particular securities

776.      Securities exchanges to provide assistance to Commission

777.      Power of Court to order compliance with or enforcement of business rules or listing rules of securities exchange

778.      Gaming and wagering laws not applicable to certain option contracts

779.      Qualified privilege in respect of disciplinary proceedings

PART 7.3—PARTICIPANTS IN THE SECURITIES INDUSTRY

Division 1—Dealers and investment advisers

780.      Dealers

781.      Investment advisers

782.      Application for a licence

783.      Grant of licence to natural person

784.      Grant of licence to body corporate

785.      Effect of certain provisions

786.      Conditions of licence

787.      Licensee to notify breach of licence condition

788.      Giving information and statements to Commission

789.      Register of Licence Holders

790.      Notifying change in particulars

791.      Annual statement of licensee

792.      Time for lodging annual statement

793.      Commission may extend period for lodging statement

Division 2Agreements with unlicensed persons

Subdivision A—Agreements affected

794.      Certain persons not clients

795.      Agreements with unlicensed corporations

796.      Agreements with other unlicensed dealers and investment advisers

797.      Agreements with other unlicensed persons

Subdivision BEffect on agreements

798.      Client may give notice of rescission

799.      Effect of notice under section 798

799a.    Client may apply to Court for partial rescission

800.      Court may make consequential orders

801.      Agreement unenforceable against client

802.      Non-licensee not entitled to recover commission

803.      Onus of establishing non-application of section 801 or 802

804.      Client may recover commission paid to non-licensee

TABLE OF PROVISIONS—continued

Section

805.      Remedies under this Division additional to other remedies

Division 3Representatives

806.      Representatives of dealers

807.      Representatives of investment advisers

808.      Defence

809.      Body corporate not to act as representative

810.      Licensee to keep register of holders of proper authorities

811.      Licensee to notify Commission of location and contents of register

812.      Inspection and copying of register

813.      Disclosure to non-dealer

814.      Commission may require production of authority

815.      Commission may give licensee information about representative

816.      Holder of authority may be required to return it

Division 4Liability of principals for representatives conduct

817.      Conduct engaged in as a representative

818.      Liability where identity of principal unknown

819.      Liability of principals where act done in reliance on representative’s conduct

820.      Presumptions about certain matters

821.      No contracting out of liability for representative’s conduct

822.      Effect of Division

823.      Additional operation of Division

Division 5Excluding persons from the securities industry

824.      Power to revoke, without a hearing, licence held by natural person

825.      Power to revoke, without a hearing, licence held by body corporate

826.      Power to revoke licence after a hearing

827.      Power to suspend licence instead of revoking it

828.      Power to make banning order where licence revoked or suspended

829.      Power to make banning order against unlicensed person

830.      Nature of banning order

831.      Exceptions to banning order

832.      Variation or revocation of banning order on application

833.      Revocation of banning order in certain cases

834.      Effect and publication of orders under this Division

835.      Contravention of banning order

836.      Banned person ineligible for licence

837.      Opportunity for hearing

838.      Disqualification by the Court

839.      Effect of orders under section 838

840.      Effect of previous orders under laws corresponding to section 838

PART 7.4—CONDUCT OF SECURITIES BUSINESS

Division 1—Regulation of certain activities

841.      Certain representations prohibited

842.      Issue of contract notes

843.      Dealings and transactions on a dealer’s own account

844.      Dealer to give priority to clients’ orders

845.      Dealings by employees of holders of licences

Division 2Short selling of securities

846.      Short selling


 

TABLE OF PROVISIONS—continued

Section

847.      Power of Commission to prohibit short selling in certain cases

Division 3Recommendations about securities

848.      Recommendation made by partner or officer

849.      Client to be told if adviser’s interests may influence recommendation

850.      Defences to alleged breach of subsection 849 (2)

851.      Adviser must have reasonable basis for recommendation

852.      Adviser who breaches this Division liable to compensate client

853.      Qualified privilege for adviser when complying with this Division

PART 7.5—DEALERS ACCOUNTS AND AUDIT

854.      Interpretation

855.      Application of Part

856.      Dealers’ accounting records

857.      Appointment of auditor by dealer

858.      Removal and resignation of auditors

859.      Fees and expenses of auditors

860.      Dealer’s accounts

861.      Auditor to report to Commission on certain matters

862.      Securities exchange to report to Commission on certain matters

863.      Qualified privilege for auditor

864.      Securities exchange may impose additional obligations on members

PART 7.6—MONEY AND SCRIP OF DEALERS CLIENTS

865.      Interpretation and application

866.      Dealer to keep trust account

867.      What is to be paid into dealer’s trust account

868.      When money to be paid into trust account

869.      Withdrawals from trust account

870.      Withdrawal against uncleared cheque

871.      Trust money not available in respect of dealer’s own debts

872.      Money lent to dealer

873.      Scrip in dealer’s custody

874.      Court may freeze certain bank accounts of dealers and former dealers

875.      Interim order freezing bank accounts

876.      Duty of banker to make full disclosure

877.      Further orders and directions

878.      Power of Court to make order relating to payment of money

PART 7.7—REGISTERS OF INTERESTS IN SECURITIES

879.      Interpretation

880.      Application of Part

881.      Register to be maintained

882.      Commission to be notified of certain matters on establishment of Register

883.      Commission to be notified of changes in certain matters

884.      Defences

885.      Power of Commission to require production of Register

886.      Power of Commission to require certain information

887.      Power of Commission to supply copy of Register

PART 7.8—DEPOSITS WITH STOCK EXCHANGES

888.      Interpretation

889.      Deposits to be lodged by member organisations

890.      Deposit to be proportion of trust account balance

891.      Deposits to be invested by stock exchange

892.      Accounts in respect of deposits


 

TABLE OF PROVISIONS—continued

Section

893.      Claims not affected by this Part

PART 7.9—FIDELITY FUNDS

894.      Interpretation

895.      Fidelity funds

896.      Money constituting fidelity fund

897.      Fund to be kept in separate bank account

898.      Payments out of fund

899.      Payment to the credit of the fidelity fund of a futures exchange or futures association

900.      Accounts of fund

901.      Management sub-committee

902.      Contributions to fund

903.      Provisions where fund exceeds $2,000,000

904.      Levy in addition to annual contributions

905.      Power of securities exchange to make advances to fund

906.      Investment of fund

907.      Application of fund

908.      Claims against the fund

909.      Rights of innocent partner in relation to fund

910.      Notice calling for claims against fund

911.      Power of board to settle claims

912.      Form of order of Court establishing claim

913.      Power of securities exchange to require production of securities

914.      Subrogation of securities exchange to rights etc. of claimant on payment from fund

915.      Payment of claims only from fund

916.      Provision where fund insufficient to meet claims or where claims exceed total amount payable

917.      Power of securities exchange to enter into contracts of insurance or indemnity

918.      Application of insurance money

919.      Contributions and levies not payable unless imposed by another Act

PART 7.10—THE NATIONAL GUARANTEE FUND

Division 1Interpretation

920.      Interpretation

921.      Excluded persons

922.      Becoming insolvent

923.      Permitted investments

924.      Additional operation of certain provisions

Division 2Securities Exchanges Guarantee Corporation

925.      Minister to nominate

926.      Functions and powers under Fund provisions

927.      Management sub-committee

928.      Commission to be notified of amendments to business rules

Division 3The National Guarantee Fund

929.      Establishment

930.      Property constituting Fund

931.      Fund to be kept in separate bank account

932.      Payments out of Fund

933.      Accounts of Fund

934.      Investment of Fund

935.      Interest and profits from investment of Fund

TABLE OF PROVISIONS—continued

Section

936.      Minimum amount of Fund

Division 4Levies where Fund less than minimum amount

937.      Definition

938.      Levy on reportable transactions

939.      Revocation of levy on reportable transactions

940.      Levy on participating exchanges

941.      Levy by participating exchange on members or member organisations

942.      Levies not payable unless imposed by another Act

Division 5Securities industry development accounts

943.      Interpretation

944.      Payments where Fund exceeds minimum amount

945.      Payments into and out of development account

946.      Investment

947.      Accounts

Division 6Contract guarantees

948.      Definitions

949.      Claim by selling dealer in respect of default by buying dealer

950.      Claim by buying dealer in respect of default by selling dealer

951.      Claim by selling client in respect of default by selling dealer

952.      Claim by buying client in respect of default by buying dealer

953.      Cash settlement of claim where settlement documents unobtainable

954.      Making of claims

Division 7Unauthorised transfer

955.      Interpretation

956.      Unauthorised execution of transfer of securities

957.      Claim by transferor

958       Claim by transferee or sub-transferee

959.      How and when claim may be made

960.      How claim is to be satisfied

961.      Discretionary further compensation to transferor

Division 8Claims in respect of insolvent members

962.        Interpretation

963.        Claim in respect of property entrusted to, or received by, dealer before dealer became insolvent

964.        Cash settlement of claims where property unobtainable

965.        Ordering of alternative claims and prevention of double recovery

966.        No claim in respect of money lent to dealer

967.        No claim in certain other cases

968.        Limits of compensation

969.        Making of claims

Division 9Claims under Divisions 6, 7 and 8

970.        Power of SEGC to allow and settle claim

971.        Successful claimant entitled to costs and disbursements

972.        Interest

973.        Application of Fund in respect of certain claims

974.        Allowing of claim not to constitute admission

975.        SEGC to notify claimant where claim disallowed

976.        Proceedings in the Court

977.        Arbitration of amount of cash settlement of certain claims


 

TABLE OF PROVISIONS—continued

Section

978.        Form of order of Court establishing claim

979.        Power of Board to require production of securities etc.

980.        Subrogation of SEGC to claimant’s rights etc.

981.        Payment of claims only from Fund

982.        SEGC may enter into contracts of insurance or indemnity

983.        Instalment payments

Division 10Transitional

984.        Definitions

985.        Assets and liabilities of joining exchange’s fidelity fund

986.        Final accounts in respect of joining exchange’s fidelity fund

987.        Application of liability provisions in relation to transferred claims

988.        Claims under corresponding law

989.        Expenses incurred under corresponding law

990.        Money payable under corresponding law

991.        Contracts made under corresponding law

992.        Periods prescribed by business rules of exchange for purposes of corresponding law

993.        Court proceedings and orders

PART 7.11—CONDUCT IN RELATION TO SECURITIES

Division 1—Additional operation of Part

994.        Holding companies

Division 2Prohibited conduct

995.        Misleading or deceptive conduct

996.        False or misleading statement in, or omission from, prospectus

997.        Stock market manipulation

998.        False trading and market rigging transactions

999.        False or misleading statements in relation to securities

1000.      Fraudulently inducing persons to deal in securities

1001.      Dissemination of information about illegal transactions

1002.      Insider trading

Division 3Powers of Court

1003.      Provisions relating to prosecutions

1004.      Order to disclose information or publish advertisements

Division 4Civil liability

Subdivision A—General

1005.      Civil liability for contravention of this Part or Part 7.12

Subdivision B—Liability in respect of prospectuses

1006.      Civil liability for false or misleading statement in, or omission from, prospectus

1007.      No liability to person with knowledge of relevant matter

1008.      Directors not liable in certain circumstances

1009.      Liability of experts

1010.      Liability of persons named in prospectus etc.

1011.      No liability for mistake etc.      if reasonable precautions taken

1012.      Indemnity

Subdivision C—Liability in respect of unlawful market activity

1013.      Liability for insider trading

1014.      Liability for other unlawful market activity


 

TABLE OF PROVISIONS—continued

Section

1015.          Amount recoverable

PART 7.12—OFFERING SECURITIES FOR SUBSCRIPTION OR PURCHASE

Division 1—Additional operation of Part

1016.    Holding companies etc.

Division 2Prospectuses

1017.          Exceptions

1017a.       Registrable prospectuses

1018.          Prospectus in relation to securities

1019.          Prohibition on invitations or offers in respect of securities of proposed corporation

1020.          Forms of application for securities to be attached to prospectus

1020a.       Registration of prospectuses

1021.          Specific provisions applicable to all prospectuses

1022.          General provisions applicable to all prospectuses

1023.          Special provisions applicable to prospectuses in relation to debentures

1024.          Supplementary prospectuses

1025.          Certain notices etc. not to be published

1026.          Certain reports referring to prospectuses not to be published

1027.          Evidentiary provisions etc.

1028.          Retention of over-subscriptions in debenture issues

1029.          Documents to be kept by corporations

1030.          Document containing offer of securities for sale deemed to be prospectus

1031.          Allotment or issue of securities where prospectus indicates application for quotation on stock market

1032.          Expert’s consent to issue of prospectus containing statement by the expert

1033.          Order to stop issue of securities

1034.          Transitional

Division 3Restrictions on allotment and variation of contracts

Subdivision A—Provisions relating to companies

1035.          Prohibition of allotment unless minimum subscription received

1036.          Repayment of subscriptions

1037.          Allotment voidable at applicant’s option

1038.          Restriction on varying contracts referred to in prospectus

Subdivision B—Provisions relating to corporations

1039.          Certain conditions void

1040.          Securities not to be allotted or issued after 6 months

1041.          Validity of allotment or issue of securities

1042.          Liability of directors for loss or damage

1043.          Application money to be held in trust

Division 4Debentures

1044.          Application to close corporations

1045.          How debentures may be described

1046.          Application

1047.          Register of debenture holders and copies of trust deed

1048.          Branch registers of debenture holders

1049.          Specific performance of contracts

1050.          Perpetual debentures

1051.          Re-issue of redeemed debentures

1052.          Qualifications of trustee for debenture holders


 

TABLE OF PROVISIONS—continued

Section

1053.          Retirement of trustees

1054.          Contents of trust deed

1055.          Power of Court in relation to certain irredeemable debentures

1056.          Duties of trustees

1057.          Power of trustee to apply to Court for directions

1058.          Obligations of borrowing corporation

1059.          Obligation of guarantor body to provide information

1060.          Loans and deposits to be immediately repayable on certain events

1061.          Invitations or offers by excluded corporations

1062.          Liability of trustees for debenture holders

Division 5Prescribed interests

1063.          Exceptions and modifications

1064.          Issue of prescribed interests restricted

1065.          No issue without approved deed

1066.          Approved deeds

1067.          Approvals

1068.          Lodgment of consolidated copies of deed

1069.          Covenants to be included in deeds

1070.          Register of holders of prescribed interests

1071.          Returns and information relating to prescribed interests

1072.          Buy-back covenant and buy-back arrangements

1073.          Consequences of contravention

1074.          Winding up of schemes

1075.          Non-application of Division in certain circumstances

1076.          Liability of trustees

Division 6Hawking of securities

1077.          Interpretation

1078.          Restriction on hawking securities

1079.          Restriction on written invitations or offers in respect of securities

1080.          Particulars to be included in statement

1081.          Prohibition on hawking securities of proposed corporation

1082.          Power of courts to make orders

Division 7Exemptions and modifications

1083.          Australian banks

1084.          Powers of Commission

PART 7.13TITLE TO, AND TRANSFER OF, SECURITIES

Division 1—Title to securities

1085.          Nature of shares and other interests

1086.          Numbering of shares

1087.          Certificate to be evidence of title

1088.          Company may have duplicate common seal

1089.          Loss or destruction of certificates

Division 2Transfer of securities

1090.          Definition

1091.          Instrument of transfer

1092.          Registration of transfer at request of transferor

1093.          Notice of refusal to register transfer

1094.          Remedy for refusal to register transfer or transmission

1095.          Certification of transfers


 

TABLE OF PROVISIONS—continued

Section

1096.          Duties of company with respect to issue of certificates

Division 3Transfer of marketable securities and marketable rights

1097.          Interpretation

1098.          Document duly completed in accordance with a particular form

1099.          Stamping of documents

1100.          Sufficient transfers

1101.          What is a sufficient transfer of marketable securities or marketable rights: generally

1102.          What is a sufficient transfer by an authorised trustee corporation

1103.          Transferee’s execution of transfer of marketable securities

1104.          Transferee’s execution of transfer of marketable rights

1105.          Effect where document purports to bear transferor’s broker’s stamp

1106.          Warranties by securities exchange where document purports to bear its stamp

1107.          Indemnities by securities exchange and broker where documents purport to bear their stamps

1108.          Joint and several warranties and liabilities

1109.          Registration of certain instruments

1110.          Operation of Division

1111.          Occupation need not appear in instrument, register etc.

1112.          Offences

Division 4Exemptions and modifications

1113.          Powers of Commission

PART 7.14—MISCELLANEOUS

1114.          Power of Court to make certain orders

1115.          Restrictions on use of titles “stockbroker”, “sharebroker” and “stock exchange”

1116.          Preservation and disposal of records etc.

1117.          Concealing etc.      of books relating to securities

1118.          Falsification of records

1119.          Precautions against falsification of records

CHAPTER 8—THE FUTURES INDUSTRY

PART 8.1—INTERPRETATION

1120.          Business rules: futures association

1121.          Business rules: clearing house

1122.          Business rules: futures exchange

PART 8.2—FUTURES EXCHANGES, CLEARING HOUSES AND FUTURES ASSOCIATIONS

Division 1—Futures exchanges and exempt futures markets

1123.          Conducting unauthorised futures markets

1123a.       Using eligible communications services in connection with unauthorised futures markets

1124.          Corporation not to deal on unauthorised futures market

1125.          No dealing on corporation’s behalf on unauthorised futures market

1126.          Approval of futures exchange

1127.          Exempt futures market


 

TABLE OF PROVISIONS—continued

Section

Division 2Clearing houses

1128.          When corporation may provide clearing house facilities

1129.          Providing clearing house facilities for a corporation

1130.          Providing facilities for registering futures contracts made by corporations

1131.          Approval of clearing house

Division 3Futures associations

1132.          Approval of futures association

1133.          Suspension or cancellation of approval

Division 4General

1134.          Publication of certain instruments

1135.          Appeal to the Court against certain decisions of futures exchanges and futures associations

1136.          Commission to be notified of amendments of business rules

1137.          Orderly markets in futures contracts—functions and powers of futures exchanges and clearing houses

1138.          Orderly markets in futures contracts—powers of Commission

1139.          Futures exchanges and others to assist Commission

1140.          Power of Court to order observance or enforcement of business rules of futures exchange, clearing house or futures association

1141.          Effect of certain laws on certain agreements

1141a.       Qualified privilege in respect of disciplinary proceedings

PART 8.3—PARTICIPANTS IN THE FUTURES INDUSTRY

Division 1—Futures brokers and futures advisers

1142.          Futures brokers

1143.          Futures advisers

1144.          Application for a licence

1145.          Grant of licence

1146.          Licences under corresponding laws

1147.          Conditions of licence: general

1148.          Conditions of futures brokers licence: membership of futures organisation

1149.          Conditions of futures brokers licence: assets and liabilities

1150.          Conditions of licence: supervision of representatives

1151.          Revocation and variation of licence conditions

1152.          Futures organisations to be informed about conditions of futures brokers licence

1153.          Licensee to notify breach of licence condition

1154.          Commission may require licensed futures broker to give information

1155.          Register of Futures Licensees

1156.          Notifying change in particulars

1157.          Annual statement of licensee

1158.          Time for lodging annual statement

Division 2Agreements with unlicensed persons

Subdivision A—Agreements affected

1159.          Excluded clients

1160.          Agreement about a dealing in breach of section 1142

1161.          Agreement with corporation acting in breach of section 1143

1162.          Agreement about advice, or reports, given in breach of subsection 1143 (2)

1163.          Agreement with person acting in breach of subsection 1143 (3)

Subdivision B—Effect on agreements

1164.          Client may give notice of rescission

1165.          Effect of notice under section 1164

TABLE OF PROVISIONS—continued

Section

1165a.       Client may apply to Court for partial rescission

1166.          Court may make consequential orders

1167.          Agreement unenforceable against client

1168.          Non-licensee not entitled to recover commission

1169.          Onus of establishing non-application of section 1167 or 1168

1170.          Client may recover commission paid to non-licensee

1171.          Remedies under this Division additional to other remedies

Division 3Futures representatives

1172.          Representatives of futures brokers

1173.          Representatives of futures advisers

1174.          Defence

1175.          Body corporate not to act as representative

1176.          Licensee to keep register of holders of proper authorities

1177.          Licensee to notify Commission of location and contents of register

1178.          Inspection and copying of register

1180.          Commission may require production of authority

1181.          Commission may give licensee information about representative

1182.          Holder of authority may be required to return it

Division 4Liability of principals for representatives conduct

1183.          Conduct engaged in as a representative

1184.          Liability where identity of principal unknown

1185.          Liability of principals where act done in reliance on representative’s conduct

1186.          Presumptions about certain matters

1187.          No contracting out of liability for representative’s conduct

1188.          Effect of Division

1189.          Additional operation of Division

Division 5Excluding persons from the futures industry

1190.          Power to revoke licence without a hearing

1191.          Power to revoke licence after a hearing

1192.          Power to suspend licence instead of revoking it

1193.          Power to make banning order

1194.          Nature of banning order

1195.          Exceptions to banning order

1196.          Variation or revocation of banning order on application

1197.          Revocation of banning order in certain cases

1198.          Effect and publication of orders under this Division

1199.          Contravention of banning order

1200.          Opportunity for hearing

1201.          Disqualification by the Court

1202.          Effect of orders under section 1201

1203.          Effect of previous orders under laws corresponding to section 1201

PART 8.4—CONDUCT OF FUTURES BUSINESS

1204.          Certain representations prohibited

1205.          Undesirable advertising

1206.          Issue of contract notes

1207.          Futures broker to furnish monthly statement to client

1208.          Dealings by futures broker on own account

1209.          Segregation of client money and property

1210.          Futures broker to give certain information to prospective clients


 

TABLE OF PROVISIONS—continued

Section

PART 8.5—ACCOUNTS AND AUDIT

1211.          Interpretation

1212.          Application of Part

1213.          Accounts to be kept by futures brokers

1214.          Property in custody of futures broker

1215.          Appointment of auditor by futures broker

1216.          Removal and resignation of auditors

1217.          Fees and expenses of auditors

1218.          Futures brokers’ accounts

1219.          Auditor’s right of access to records, information etc.

1220.          Auditor to report to Commission in certain cases

1221.          Certain matters to be reported to Commission

1222.          Defamation

1223.          This Part not to affect right of futures exchange or futures association to impose obligations etc.      on members

1224.          Power of Court to restrain dealings with futures broker’s bank accounts

1225.          Duty of banker or body corporate to make full disclosure

1226.          Power of Court to make further orders and give directions

1227.          Power of Court to make order relating to payment of money

PART 8.6—FIDELITY FUNDS

1229.          Establishment of fidelity funds

1229.          Money constituting fidelity fund

1230.          Fund to be kept in separate bank account

1231.          Payments out of fund

1232.          Accounts of fund

1233.          Management sub-committee

1234.          Contribution to fund

1235.          Levy in addition to annual contributions

1236.          Contributions and levies not payable in certain cases

1237.          Power of futures organisation to make advances to fund

1238.          Investment of fund

1239.          Application of fund

1240.          Claims against fund

1241.          Rights of innocent partner in relation to fund

1242.          Notice calling for claims against fund

1243.          Power of board to settle claims

1244.          Form of order of Court establishing claim

1245.          Power of board to require production of documents etc.

1246.          Subrogation of futures organisation to rights etc. of claimant on payment from fund

1247.          Payment of claims only from fund

1248.          Provisions where fund insufficient to meet claims or where claims exceed total amount payable

1249.          Power of futures organisation to enter into contracts of insurance or indemnity

1250.          Application of insurance money

PART 8.7—OFFENCES

Division 1Insider dealing

1251.          Futures contract concerning a body corporate

1252.          Person connected with a body corporate

1253.          Persons precluded from dealing

1254.          Body corporate precluded from dealing when officer precluded

1255.          Exceptions: licensed futures brokers

1256.          Prohibitions on dealing when precluded

1257.          Defence where other party to dealing also had the inside information

Division 2General

1258.          Dealings by futures broker on behalf of others

TABLE OF PROVISIONS—continued

Section

1259.          Futures market manipulation

1260.          False trading and market rigging

1261.          False or misleading statements etc.

1262.          Fraudulently inducing person to deal in futures contracts

1263.          Dissemination of information about illegal transactions

1264.          Fraud in connection with dealings in futures contracts

1265.          Compensation for loss etc.

1266.          Sequence of transmission and execution of orders

1267.          Dealings by employees of eligible futures brokers and eligible futures advisers

PART 8.8—MISCELLANEOUS

1268.          Power of Court to make certain orders

1269.          Restrictions on use of titles “futures broker”, “futures exchange” etc.

1270.          Preservation and disposal of records etc.

1271.          Concealing etc.      books relating to futures contracts

1272.          Falsification of records

1273.          Precautions against falsification of records

CHAPTER 9—MISCELLANEOUS

PART 9.1 —REGISTERS AND REGISTRATION OF DOCUMENTS

1274.          Registers

1275.          Relodging of lost registered documents

PART 9.2—REGISTRATION OF AUDITORS AND LIQUIDATORS

Division 1—Interpretation

1276.          Interpretation

1277.          Effect on certain State and Territory laws

Division 2Registration

1278.          Auditor or liquidator registered under corresponding law

1279.          Application for registration as auditor or liquidator

1280.          Registration of auditors

1281.          Auditor-General deemed to be registered as auditor

1282.          Registration of liquidators

1283.          Registration of official liquidators

1284.          Security to be given by liquidators

1285.          Register of auditors

1286.          Registers of Liquidators and Official Liquidators

1287.          Notification of certain matters

1288.          Triennial statements by registered auditors and liquidators

1289.          Auditors and other persons to enjoy qualified privilege in certain circumstances

Division 3Cancellation or Suspension of Registration

1290.          Cancellation at request of registered person

1291.          Official liquidators

1292.          Powers of Board in relation to auditors and liquidators

1293.          Effect in certain cases of cancellation or suspension of registration under corresponding law

1294.          Board to give opportunity for hearing etc.

1295.          Board may remove suspension

1296.          Notice of Board’s decision

1297.          Time when Board’s decision comes into effect

1298.          Effect of suspension


 

TABLE OF PROVISIONS—continued

Section

PART 9.3—BOOKS

1300.          Inspection of books

1301.          Location of books kept on computers etc.

1302.          Location of registers

1303.          Court may compel compliance

1304.          Translations of instruments

1305.          Admissibility of books in evidence

1306.          Form and evidentiary value of books

1307.          Falsification of books

PART 9.4—OFFENCES

Division 1—Specific offences

1308.          False or misleading statements

1309.          False information etc.

1310.          Obstructing or hindering Commission etc.

Division 2Offences generally

1311.          General penalty provisions

1312.          Penalties for bodies corporate

1313.          Penalty notices

1314.          Continuing offences

1315.          Proceedings: how taken

1316.          Time for instituting criminal proceedings

1317.          Certain persons to assist in prosecutions

PART 9.4A—REVIEW BY ADMINISTRATIVE APPEALS TRIBUNAL OF CERTAIN DECISIONS

1317a.       Interpretation

1317b.        Applications for review

1317c.        Excluded decisions

PART 9.5—POWERS OF COURTS

1318.          Power to grant relief

1319.          Power of Court to give directions with respect to meetings ordered by the Court

1321.          Appeals from decisions of receivers, liquidators etc.

1322.          Irregularities

1323.          Power of Court to prohibit payment or transfer of money, securities, futures contracts or property

1324.          Injunctions

1325.          Other orders

1326.          Effect of sections 1323, 1324 and 1325

1327.          Power of Court to punish for contempt of Court

1328.          Court may resolve transitional difficulties

PART 9.6—PROCEEDINGS

1330.          Power of Commission to intervene in proceedings

1331.          Civil proceedings not to be stayed

1332.          Standard of proof

1333.          Evidence of contravention

1334.          Evidence of laws of States and Territories

1335.          Costs

1336.          Vesting of property


 

TABLE OF PROVISIONS—continued

Section

PART 9.7—UNCLAIMED PROPERTY

1337.          Interpretation

1338.          Companies Unclaimed Money Account

1339.          How Minister to deal with unclaimed property

1340.          Minister not liable to pay calls on shares etc.

1341.          Disposition of money in Account

1342.          Commonwealth or Minister not liable for loss or damage

1343.          Disposal of securities if whereabouts of holder unknown

PART 9.8—RULES AND REGULATIONS

1344.          Rules

1345.          Regulations

PART 9.9-MISCELLANEOUS

1346.          Non-application of rule against perpetuities to certain schemes

1347.          Act not to apply to trade unions

1348.          Operation of Life Insurance Act

1349.          General transitional provisions

1350.          Effect of Act on existing laws in force in the Capital Territory

SCHEDULE 1

TABLE A

Regulations for Management of a Company Limited by Shares

TABLE B

Regulations for Management of a No Liability Company

SCHEDULE 2

Forms of Transfer of Marketable Securities and Marketable Rights

SCHEDULE 3

Penalties


 

Commonwealth Coat of Arms of Australia

Corporations Act 1989

No. 109 of 1989

 

An Act to enact a national law about corporations, securities and the futures industry, and for other purposes

[Assented to 14 July 1989]

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

CHAPTER 1—INTRODUCTORY

PART 1.1—PRELIMINARY

Short title

1. This Act may be cited as the Corporations Act 1989.

Commencement

2. (1) Subject to this section, the provisions of this Act commence on a day or days to be fixed by Proclamation.

(2) This Chapter commences on the day on which this Act receives the Royal Assent.


Application to the Crown

3. Chapter 5 (except Part 5.8) binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island.

Extension to external Territories

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

Commission has general administration of Act

5. Subject to the Commission Act, the Commission has the general administration of this Act.

PART 1.2—INTERPRETATION

Division 1General

Effect of this Part

6. (1) The provisions of this Part have effect for the purposes of this Act, except so far as the contrary intention appears in this Act.

(2) This Part applies for the purposes of:

(a) Part 5.7;

(b) Chapter 5 as applying by virtue of Part 5.7; and

(c) Part 9.2;

as if a reference in this Part to a person or to a body corporate included a reference to a Part 5.7 body.

Location of other interpretation provisions

7. (1) Most of the interpretation provisions for this Act are in this Part.

(2) However, interpretation provisions relevant only to Chapters 6, 7 and 8, respectively, are to be found at the beginning of those Chapters.

(3) Also, interpretation provisions relevant to a particular Part, Division or Subdivision may be found at the beginning of that Part, Division or Subdivision.

(4) Occasionally, an individual section contains its own interpretation provisions, not necessarily at the beginning.

Interpretation provisions to operate distributively

8. (1) The effect that an interpretation provision has for the purposes of a particular provision of this Act is additional to, and does not prejudice, its effect for the purposes of any other provision of this Act.

(2) For the purposes of subsection (1), an interpretation provision, as it has effect for the purposes (in this subsection called the relevant purposes) of:

(a) a particular provision of this Act; or


 

(b) something that is, by any other application or applications of this subsection, deemed for the purposes of that subsection to be a distinct provision of this Act;

shall be deemed to be a provision of this Act distinct from the interpretation provision as it has effect otherwise than for the relevant purposes.

(3) In this section:

interpretation provision means:

(a) a provision of this Part; or

(b) any other provision of this Act, whether in the form of a definition or not, that purports to give, or has the effect of giving, a particular meaning to an expression.

Dictionary

9. Unless the contrary intention appears:

A

accounting records includes:

(a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry; and

(b) such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up;

accounting standard, except in sections 283 and 288, means an instrument in force under section 283, or a provision of such an instrument;

accounts, in Parts 3.6 and 3.7, means profit and loss accounts and balance-sheets and includes statements, reports and notes, other than auditors reports and directors reports, attached to or intended to be read with any of those profit and loss accounts or balance-sheets;

acquire:

(a) in relation to a futures contract—has the meaning given by sections 23, 26, 27 and 28;

(b) in relation to shares—has, in Chapters 6 and 7, the meaning given by subsection 51 (1); or

(c) in relation to marketable securities within the meaning of Chapter 6—has, in Chapter 6, the meaning given by subsection 51 (1) as applying by virtue of section 605;

Act, in the case of a reference to this Act, includes the regulations;

adjustment agreement means a standardised agreement the effect of which is that:

(a) a particular person will either be under a Chapter 8 obligation to pay, or will have a Chapter 8 right to receive, an amount of money;


 

(b) whether the person will be under such an obligation to pay, or will have such a right to receive, the amount of money will depend on a particular state of affairs existing at a particular future time, including, without limiting the generality of the foregoing, a state of affairs that relates to fluctuations in the value or price of a commodity or other property, or in an index or other factor; and

(c) the amount of money will be calculated in a particular manner by reference to that state of affairs;

whether or not the agreement has any other effect or is capable of being varied or discharged before that future time;

affidavit includes affirmation;

agency means an agency, authority, body or person;

agreement means:

(a) in Chapter 6 or 7—a relevant agreement; or

(b) in Chapter 8—a Chapter 8 agreement;

amount includes a nil amount and zero;

ancillary offence means an offence against:

(a) section 6, 7 or 7a of the Crimes Act 1914; or

(b) subsection 86 (1) of that Act by virtue of paragraph 86 (1) (a) of that Act;

annual general meeting, in relation to a company, means a meeting of the company that section 245 requires to be held;

annual return means the return that section 335 requires to be made and includes any document accompanying the return;

applicable accounting standard, in relation to, or in relation to accounts or group accounts forming part of, a companys financial statements for a financial year, means an accounting standard that, when the financial statements are made out:

(a) applies to that financial year; and

(b) is relevant to the financial statements;

approved securities organisation means a body corporate:

(a) that is an eligible corporation; and

(b) in relation to which an approval under section 770 is in force;

arbitrage transaction means a purchase or sale of securities effected in the ordinary course of trading on a stock market together with an offsetting sale or purchase of those securities effected at the same time, or at as nearly the same time as practicable, in the ordinary course of trading on another stock market for the purpose of obtaining a profit from the difference between the prices of those securities in the 2 stock markets;

arrangement, in Part 5.1, includes a reorganisation of the share capital of a body corporate by the consolidation of shares of different


 

classes, by the division of shares into shares of different classes, or by both of those methods;

articles means articles of association;

assets means:

(a) in relation to the holder of a futures brokers licence—all the assets of the holder, whether or not used in connection with a business of dealing in futures contracts; and

(b) in relation to the holder of a dealers licence—all the assets of the holder, whether or not used in connection with a securities business;

associate has the meaning given by Division 2;

Australia includes:

(a) except in Parts 3.5 and 5.2—an external Territory to which this Act extends; and

(b) in Part 3.5 or 5.2—all the external Territories;

Australian bank means:

(a) a bank as defined in section 5 of the Banking Act 1959; or

(b) a bank constituted by or under a law of a State or Territory;

Australian company law means:

(a) this Act; or

(b) the company law of a State or Territory;

Australian court means a federal court or a court of a State or Territory;

Australian law means a law of the Commonwealth or of a State or Territory;

authorised trustee corporation means a body corporate that is declared by the regulations to be an authorised trustee corporation for the purposes of the provision in which the expression appears;

available, in relation to a name, means available by virtue of Part 4.2;

B

bankers books means:

(a) books of an Australian bank, including documents used in the ordinary business of an Australian bank;

(b) cheques, orders for the payment of money, bills of exchange and promissory notes in an Australian banks possession;

(c) scrip in an Australian banks possession, whether by way of pledge or otherwise; or

(d) documents that create or evidence futures contracts and are in an Australian banks possession;

banking corporation means a body corporate that carries on, as its sole or principal business, the business of banking (other than State banking not extending beyond the limits of the State concerned);

banning order means:


 

(a) in Chapter 7—an order by the Commission in force under Division 5 of Part 7.3; or

(b) in Chapter 8—an order by the Commission in force under Division 5 of Part 8.3;

benefit means any benefit, whether by way of payment of cash or otherwise;

Board means:

(a) in Part 3.6 or 3.7—the Accounting Standards Review Board;

(b) in Part 7.10—the board of SEGC; or

(c) in Part 9.2—the Companies Auditors and Liquidators Disciplinary Board;

board, in relation to a body corporate, means the committee of management, board of directors, council or other governing authority of the body corporate;

body includes a society or association;

body corporate includes:

(a) a foreign company; and

(b) a body corporate or foreign company that is being wound up or has been dissolved;

books includes:

(a) a register;

(b) any other record of information;

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

(d) a document;

borrowing corporation means a body corporate that is or will be under a liability to repay any money received or to be received by it in response to:

(a) an invitation to subscribe for or buy debentures of the body corporate or an offer of debentures of the body corporate for subscription or purchase; or

(b) an offer of debentures as consideration for the acquisition, under a takeover scheme, of shares in a body corporate;

bought position means:

(a) in relation to a commodity agreement, or in relation to a futures contract, being a commodity agreement—the position of a person who, by virtue of the agreement, is under a Chapter 8 obligation to accept delivery in accordance with the agreement; or

(b) in relation to a futures contract, being an adjustment agreement—the position of a person who, by virtue of the agreement:

(i) will, if the value or worth of the agreement (as determined in accordance with the agreement) as at a


 

particular future time is less by a particular amount than the value or worth of the agreement (as so determined) as at a particular earlier time, be under a Chapter 8 obligation to pay that amount; and

(ii) will, if the value or worth of the agreement (as so determined) as at a particular future time exceeds by a particular amount the value or worth of the agreement (as so determined) as at a particular earlier time, have a Chapter 8 right to receive that amount;

branch register means:

(a) in relation to a company—a branch register, kept under section 214, of members of the company; or

(b) in relation to a foreign company—except in section 351, a branch register, kept under section 352, of members of the foreign company;

business day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned;

buy-back arrangements, in relation to a deed relating to prescribed interests, means arrangements made to ensure that the management company can comply with a buy-back covenant contained in the deed;

buy-back covenant, in relation to a deed relating to prescribed interests, means a covenant binding the management company that it will, if asked by the holder of a prescribed interest to which the deed relates, buy the prescribed interest, or cause it to be bought, from the holder at a price calculated in accordance with the deed;

C

Capital Territory means the Australian Capital Territory and the Jervis Bay Territory;

carry on has a meaning affected by Division 3;

cash management trust interest means a prescribed interest:

(a) in relation to which there is in force a deed that, for the purposes of Division 5 of Part 7.12, is an approved deed; and

(b) that relates to an undertaking, scheme, enterprise, contract or arrangement of the kind commonly known as a cash management trust;

cause includes procure;

certified means:

(a) in relation to a copy of, or extract from, a document-certified by a statement in writing to be a true copy of, or extract from, the document; or

(b) in relation to a translation of a document—certified by a statement in writing to be a correct translation of the document into English;


 

Chapter 8 agreement means:

(a) a relevant agreement;

(b) a proposed relevant agreement;

(c) a relevant agreement as varied, or as proposed to be varied;

(d) where a relevant agreement has been varied—the relevant agreement as in force at any time before the variation; or

(e) where a relevant agreement has been discharged—the relevant agreement as in force at any time before its discharge;

Chapter 8 obligation has the meaning given by section 55;

Chapter 8 right has the meaning given by section 55;

charge means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise;

chargee means the holder of a charge and includes a person in whose favour a charge is to be given or executed, whether on demand or otherwise, under an agreement;

class has:

(a) in relation to futures contracts—a meaning affected by subsection 72 (3); and

(b) in relation to shares—a meaning affected by section 57;

clearing house means:

(a) in relation to a body corporate:

(i)    in any case—a person who provides, or proposes to provide, clearing house facilities for a futures market conducted by that body; or

(ii)   in the case of a futures exchange—a body corporate that is an eligible corporation and in relation to which an approval as a clearing house for that futures exchange is in force under subsection 1131 (2); and

(b) in relation to a futures market:

(i)    in any case—a person who provides, or proposes to provide, clearing house facilities for that futures market; or

(ii)   in the case of a futures market of a futures exchange— a body corporate that is an eligible corporation and in relation to which an approval as a clearing house for that futures exchange is in force under subsection 1131 (2);

clearing house facilities, in relation to a futures market, means facilities for the registration of futures contracts acquired or disposed of on that futures market;

client, in relation to a futures broker, means, except in Division 2 of Part 8.3, a person on whose behalf the broker deals, or from whom the broker accepts instructions to deal, in futures contracts;


 

clients segregated account, in relation to a person, means an account that:

(a) is maintained by the person with an Australian bank;

(b) is designated as a clients segregated account; and

(c) does not contain money other than money deposited by the person in the account under section 1209 or a corresponding law;

close corporation means a close corporation registered under the Close Corporations Act 1989;

close out, in relation to a futures contract, means:

(a) discharge the Chapter 8 obligations of the person in the bought position, or sold position, under the futures contract as a result of the matching up of the futures contract with a futures contract of the same kind under which the person has assumed an offsetting sold position, or offsetting bought position, as the case may be; or

(b) otherwise discharge the Chapter 8 obligations of a party to the futures contract;

commencement, in relation to an accounting standard, means the time when:

(a) in the case of an accounting standard as originally in effect— the accounting standard took effect; or

(b) in the case of an accounting standard as varied by a particular provision of an instrument made under subsection 283 (1)— that provision took effect;

Commission means the Australian Securities Commission;

Commission Act means the Australian Securities Commission Act 1989;

Commission delegate has the same meaning as in the Commission Act;

commodity, except in Part 4.4, means:

(a) any thing that is capable of delivery pursuant to an agreement for its delivery; or

(b) without limiting the generality of paragraph (a), an instrument creating or evidencing a thing in action;

commodity agreement means a standardised agreement the effect of which is that:

(a) a person is under a Chapter 8 obligation to make delivery; or

(b) a person is under a Chapter 8 obligation to accept delivery;

at a particular future time of a particular quantity of a particular commodity for a particular price or for a price to be calculated in a particular manner, whether or not:

(c) the subject matter of the agreement is in existence;

(d) the agreement has any other effect; or


 

(e) the agreement is capable of being varied or discharged before that future time;

company means:

(a) except in relation to a State or Territory or in Chapter 6:

(i)    a company incorporated under Division 1 of Part 2.2; or

(ii)   a body corporate that is a company by virtue of subsection 150 (3);

(b) in relation to a State or Territory—a body corporate that is a company for the purposes of the company law of the State or Territory; and

(c) in Chapter 6—a body corporate that is incorporated in Australia and has a share capital;

company having a share capital includes an unlimited company with a share capital;

company law, in relation to a State or Territory, means the law, or a previous law, of the State or Territory relating to companies;

company limited by guarantee means a company formed on the principle of having the liability of its members limited by the memorandum to the respective amounts that the members undertake to contribute to the property of the company if it is wound up;

company limited by shares means:

(a) except in relation to a State or Territory—a company; or

(b) in relation to a State or Territory—a company of the State or Territory;

formed on the principle of having the liability of its members limited by the memorandum to the amount (if any) unpaid on the shares respectively held by them;

condition, in relation to a licence, means a condition or restriction to which the licence is subject, or will be subject, as the case requires;

conduct:

(a) in relation to a futures market, a stock market, or any other market, exchange, place or facility—includes maintain or provide; and

(b) in Chapter 7—has a meaning affected by section 762;

constitution, in relation to a body corporate or an unincorporated body, means:

(a) in the case of a company, a company of a State or Territory, or any other body that has a memorandum and articles—the memorandum and articles of the company or other body; or

(b) in any other case:

(i)    the bodys charter or memorandum; or

(ii)   any other instrument or law (other than this Act or the company law of a State or Territory) constituting,


 

or defining the constitution of, the body or governing activities or conduct of the body or its members;

contributing member, in relation to a futures organisation, means:

(a) in the case of a futures exchange—a member or member organisation of the futures exchange; or

(b) in the case of a futures association:

(i)    a member of that futures association that is a member of no futures exchange; or

(ii)   a member organisation of that futures association that is a member organisation of no futures exchange;

contributory means:

(a) in relation to a company other than a no liability company:

(i)    a person liable as a member or past member to contribute to the property of the company if it is wound up;

(ii)   in the case of a company having a share capital—a holder of fully paid shares in the company; and

(iii)  before the final determination of the persons who are contributories by virtue of subparagraphs (i) and (ii)— a person alleged to be such a contributory;

(b) in relation to a body corporate to which Part 5.7 applies:

(i)    a person who is a contributory by virtue of section 586; and

(ii)   before the final determination of the persons who are contributories by virtue of that section—a person alleged to be such a contributory; and

(c) in relation to a no liability company—subject to section 385, a member of the company;

convertible note has the same meaning as in Division 3a of Part III of the Income Tax Assessment Act 1936;

corporation means:

(a) a foreign corporation;

(b) a trading corporation;

(c) a body corporate that is incorporated in a Territory or in an excluded Territory;

(d) a banking corporation;

(e) an insurance corporation;

(f) a company or a close corporation; or

(g) a holding company of a body corporate of a kind referred to in paragraph (a), (b), (c), (d), (e) or (f);

corresponding, in relation to a law, has the meaning given by section 58;

Court means the Federal Court of Australia or the Supreme Court of a State or Territory;


 

creditors voluntary winding up means a winding up under Part 5.5, other than a members voluntary winding up;

D

daily newspaper means a newspaper that is ordinarily published on each day that is a business day in the place where the newspaper is published, whether or not the newspaper is ordinarily published on other days;

deadline, in relation to a financial year of a company, means:

(a) if, before the end of the period within which section 245 requires the company to hold an annual general meeting in relation to that financial year, the company so holds an annual general meeting notice of which was sent, at least 14 days before the last day of that period, to persons entitled to receive notice of general meetings of the company:

(i)    if notice of the meeting was so sent at least 14 days before the day of the meeting—the end of the fourteenth day before that day; or

(ii)   otherwise—the time when notice of the meeting was so sent; or

(b) otherwise—the end of the fourteenth day before the last day of the period within which section 245 requires the company to hold an annual general meeting in relation to that financial year;

deal:

(a) in relation to a futures contract—has the meaning given by Division 4;

(b) in relation to securities—subject to subsection 93 (4), means (whether as principal or agent) acquire, dispose of, subscribe for or underwrite the securities, or make or offer to make, or induce or attempt to induce a person to make or to offer to make, an agreement:

(i)    for or with respect to acquiring, disposing of, subscribing for or underwriting the securities; or

(ii)   the purpose or purported purpose of which is to secure a profit or gain to a person who acquires, disposes of, subscribes for or underwrites the securities or to any of the parties to the agreement in relation to the securities;

dealer means:

(a) a person who carries on a securities business; or

(b) 2 or more persons who together carry on a securities business;

dealers licence means a dealers licence granted under Part 7.3;

debenture, in relation to a body corporate, means a document issued by the body that evidences or acknowledges indebtedness of the body in respect of money that is or may be deposited with or lent


 

to the body, whether constituting a charge on property of the body or not, other than:

(a) a document acknowledging a debt incurred by a body corporate:

(i)    in the ordinary course of carrying on so much of a business as neither comprises, nor forms part of, a business of borrowing money and providing finance; and

(ii)   in respect of money that is or may be deposited with or lent to the body by a person in the ordinary course of a business carried on by the person;

(b) a document that merely acknowledges the receipt of money by a corporation where, in respect of the money, the corporation issues, in compliance with section 1023, a document prescribed by subsection 1023 (2) and complies with the other requirements of that section;

(c) a document issued by an Australian bank in the ordinary course of its banking business that evidences or acknowledges indebtedness of the bank arising in the ordinary course of that business;

(d) a cheque, order for the payment of money or bill of exchange;

(e) a promissory note having a face value of not less than $50,000; or

(f) for the purposes of the application of this definition to a provision in respect of which the regulations provide that the word debenture does not include a prescribed document or a document in a prescribed class of documents—that document or a document in that class, as the case may be;

and includes a unit of a debenture;

deed includes an instrument having the effect of a deed and, in relation to prescribed interests, includes an instrument amending or affecting the deed concerned;

defalcation, in Part 7.9, includes a contravention of subsection 870 (3);

director has the meaning given by section 60;

discretionary account has the meaning given by section 61;

dispose of:

(a) in relation to a futures contract—has the meaning given by sections 24, 26, 27 and 28;

(b) in relation to shares—has, in Chapter 6, the meaning given by subsection 51 (2); or

(c) in relation to marketable securities within the meaning of Chapter 6—has, in Chapter 6, the meaning given by subsection 51 (2) as applying by virtue of section 605;

Division 1 company means a company incorporated under Division 1 of Part 2.2;


 

Division 2 company means a body corporate that, because of its registration under Division 2 of Part 2.2, is a company by virtue of subsection 150 (3);

Division 2 or 3 company means a Division 2 company or a Division 3 company;

Division 3 company means a body corporate that, because of its registration under Division 3 of Part 2.2, is a company by virtue of subsection 150 (3);

Division 4 company means a body corporate that, because of its registration under Division 4 of Part 2.2, is a company by virtue of subsection 150 (3);

document includes:

(a) any paper or other material on which there is writing or printing or on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(b) a disc, tape or other article from which sounds, images or messages are capable of being reproduced; and

(c) a disc, tape or other article, or any material, from which sounds, images, writings or messages are capable of being reproduced with or without the aid of any other article or device;

and without limiting the generality of the foregoing, includes any summons, order and other legal process and any notice;

document of title, in relation to securities, includes an instrument of transfer relating to the securities;

dormant, in relation to a body corporate, has the meaning given by section 62;

eligible circumstances has the meaning given by section 63;

eligible commodity agreement means a commodity agreement (in this definition called the relevant agreement), where, at the time when the relevant agreement:

(a) unless paragraph (b) applies—is entered into; or

(b) if the relevant agreement is not a commodity agreement at the time when it is entered into—becomes a commodity agreement;

it appears likely, having regard to all relevant circumstances (other than the respective intentions of the person in the sold position, and the person in the bought position, under the relevant agreement), including, without limiting the generality of the foregoing:

(c) the provisions of any agreement;

(d) the rules and practices of any market; and

(e) the manner in which the respective Chapter 8 obligations of persons in sold positions, and persons in bought positions,


 

under agreements of the same kind as the first-mentioned agreement are generally discharged;

that:

(f) the Chapter 8 obligation of the person in the sold position under the relevant agreement to make delivery in accordance with the relevant agreement will be discharged otherwise than by the person so making delivery;

(g) the Chapter 8 obligation of the person in the bought position under the relevant agreement to accept delivery in accordance with the relevant agreement will be discharged otherwise than by the person so accepting delivery; or

(h) the person in the sold position, or bought position, under the relevant agreement will assume an offsetting bought position, or offsetting sold position, as the case may be, under an agreement of the same kind as the relevant agreement;

eligible communications service means a postal, telegraphic, telephonic or other like service, within the meaning of paragraph 51 (5) of the Constitution;

eligible corporation means a foreign corporation or a trading corporation;

eligible exchange-traded option means a contract that is entered into on a futures market of a futures exchange and under which a party acquires from another party an option or right, exercisable at or before a specified time:

(a) to purchase from, or to sell to, that other party a specified quantity of a specified commodity at a price specified in, or to be determined in accordance with, the contract; or

(b) to be paid by that other party an amount of money to be determined by reference to the amount by which a specified number is greater or less than the number of a specified index, being the Australian Stock Exchanges All Ordinaries Price Index or a prescribed index, as at the time when the option or right is exercised;

eligible futures advice business has the meaning given by section 71;

eligible futures adviser means:

(a) a corporation that holds a futures advisers licence, or is an exempt futures adviser by virtue of subsection 67 (1);

(b) a person, in so far as the person carries on a futures advice business in a capacity referred to in any of paragraphs 67 (4) (a) to (g), inclusive; or

(c) a prescribed person, in so far as is prescribed;

eligible futures broker means:

(a) a corporation that holds a futures brokers licence, or is an exempt futures broker by virtue of subsection 67 (1);


 

(b) a person, in so far as the person carries on a futures broking business in a capacity referred to in any of paragraphs 67 (4) (a) to (g), inclusive; or

(c) a prescribed person, in so far as is prescribed;

eligible futures broking business means, subject to subsection 25 (4):

(a) a business of dealing in futures contracts on behalf of corporations; or

(b) a business of dealing in futures contracts, in eligible circumstances, on behalf of other persons;

eligible futures conduct means conduct in the course of, for the purposes of, or otherwise in connection with:

(a) if the person who engages in, or proposes, or represents that the person proposes, to engage in, the conduct is a corporation:

(i)    dealing in futures contracts;

(ii)   advising a person about futures contracts; or

(iii)  giving to a person a futures report; or

(b) in any other case, but without prejudice to the effect of this definition by virtue of paragraph (a):

(i)    dealing in futures contracts on behalf of a corporation;

(ii)   dealing in futures contracts in eligible circumstances;

(iii)  advising a corporation, or giving to a corporation an analysis or report, about futures contracts; or

(iv)  doing in eligible circumstances any of the following:

(a) advising a person about futures contracts;

(b) giving to a person a futures report;

eligible futures contract means a futures contract acquired, or to be acquired, in eligible circumstances or on an eligible futures market;

eligible futures market means:

(a) a futures market conducted by a corporation; or

(b) a futures market, in so far as it is conducted in eligible circumstances;

eligible investment advice business has the meaning given by section 77;

eligible money market dealer means a body corporate in respect of which a declaration is in force under paragraph 65 (1) (a);

eligible negotiable instrument, in relation to a body corporate, means:

(a) a bill of exchange, promissory note, cheque or other negotiable instrument;

(b) an indorsement on, or order in, a bill of exchange, promissory note, cheque or other negotiable instrument; or

(c) a letter of credit;

of, or purporting to be issued or signed by or on behalf of, the body;

eligible securities means:


 

(a) debentures, stocks or bonds issued or proposed to be issued by the Commonwealth or an authority of the Commonwealth or by the Government of a Territory or of a foreign country or an authority of such a Government;

(b) shares in, debentures of, or prescribed interests made available by, a corporation;

(c) a contract under which a party acquires from another party an option or right, exercisable at or before a specified time, to buy from, or to sell to, that other party a number of specified securities of a kind mentioned in paragraph (a) or (b), at a price specified in, or to be determined in accordance with, the contract; or

(d) a contract that is entered into on a stock market of a securities exchange within the meaning of Chapter 7 or on an exempt stock market and under which a party acquires from another party an option or right, exercisable at or before a specified time, to buy from, or to sell to, that other party an amount of a specified foreign currency at a price specified in, or to be determined in accordance with, the contract;

but does not include a futures contract or an excluded security;

eligible securities business has the meaning given by section 93;

eligible securities conduct means conduct in the course of, for the

purposes of, or otherwise in connection with:

(a) if the person who engages in, or proposes, or represents that the person proposes, to engage in, the conduct is a corporation:

(i)    dealing in securities;

(ii)   advising a person about securities; or

(iii)  giving to a person a securities report; or

(b) in any other case, but without prejudice to the effect of this definition by virtue of paragraph (a):

(i)    dealing in eligible securities;

(ii)   dealing in securities on behalf of a corporation;

(iii)  dealing in securities in eligible circumstances;

(iv)  advising a person, or giving to a person an analysis or report, about eligible securities;

(v)   advising a corporation, or giving to a corporation an analysis or report, about securities; or

(vi)  doing in eligible circumstances any of the following:

(a) advising a person about securities;

(b) giving to a person a securities report;

emoluments means the amount or value of any money, consideration or benefit given, directly or indirectly, to a director of a body corporate in connection with the management of affairs of the body


 

or of any holding company or subsidiary of the body, whether as a director or otherwise, but does not include amounts in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the body;

enter into:

(a) in relation to a futures contract—has a meaning affected by subsection 72 (2);

(b) in relation to a transaction, in relation to shares or securities, has, in section 51 and Chapter 6, the meaning given by section 64;

event includes any happening, circumstance or state of affairs;

Exchange means Australian Stock Exchange Limited;

exchange member, in relation to a futures exchange, means:

(a) a corporation that is a member of the futures exchange;

(b) a partnership that is a member of the futures exchange; or

(c) a member of such a partnership;

Exchange subsidiary, in Chapter 6 or 7, means a securities exchange or stock exchange within the meaning of that Chapter that is a subsidiary of the Exchange;

EXCLUDED

excluded corporation has the meaning given by section 65;

excluded invitation, in relation to securities, has the meaning given by subsection 66 (3);

excluded issue, in relation to securities, has the meaning given by subsection 66 (2);

excluded offer, in relation to securities, has the meaning given by subsection 66 (3);

excluded security means:

(a) where:

(i)    there is attached to a share or debenture a right to participate in a retirement village scheme; and

(ii)   each of the other rights, and each interest (if any), attached to the share or debenture is a right or interest that is merely incidental to the right referred to in subparagraph (i);

the share or debenture or a unit in the share or debenture; or

(b) a prescribed interest constituted by a right to participate in a retirement village scheme;

excluded Territory means an external Territory to which this Act does not extend;

executive officer, in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body,


 

who is concerned, or takes part, in the bodys management and, in the case of a close corporation, includes a member of the body;

EXEMPT

exempt broker means a person who is an exempt broker by virtue of section 67;

exempt dealer has the meaning given by section 68;

exempt foreign company means a foreign company of a kind referred to in subsection 349 (8), whether or not Division 2 of Part 4.1 applies to it;

exempt futures market means a futures market in relation to which a declaration under section 1127 is in force;

exempt investment adviser has the meaning given by section 68; exempt proprietary company has the meaning given by section 69;

exempt public authority means a body corporate that is incorporated within Australia and is a public authority or an authority of the Crown in right of the Commonwealth or of a State, Territory or excluded Territory;

exempt stock market means a stock market in relation to which, or a stock market in a class of stock markets in relation to which, a declaration is in force under section 771; expert, in relation to a matter, means a person whose profession or reputation gives authority to a statement made by him or her in relation to that matter;

extend, in relation to a period:

(a) includes further extend; and

(b) has a meaning affected by section 70;

externally-administered body corporate means a body corporate:

(a) that is being wound up;

(b) in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting;

(c) that is under official management; or

(d) that has entered into a compromise or arrangement with another person the administration of which has not been concluded;

F

fidelity fund means:

(a) in relation to a futures organisation—the fidelity fund (if any) that section 1228 requires the futures organisation to keep; or

(b) in relation to a securities exchange within the meaning of Chapter 7—the fidelity fund (if any) that section 895 requires or required the securities exchange to keep;


 

financial corporation means a financial corporation within the meaning of paragraph 51 (20) of the Constitution;

financial statements, in relation to a financial year of a body corporate, means the accounts, and the group accounts (if any), of the body required by Part 3.6 or a corresponding law to be made out in relation to that financial year;

financial year, in relation to a body corporate, means any of the following, whether ending before, at or after the commencement of this section:

(a) if the body is a company—a period of 12 months, or such other period (whether longer or shorter that 12 months) of not more than 18 months as the directors (subject to the requirements of section 245 as to the holding of annual general meetings of the body) resolve (even if at the time of the resolution the body is not a company), beginning:

(i)    if there has been no previous financial year of the body—on the day of the bodys incorporation; or

(ii)   otherwise—at the end of the previous financial year of the body;

(b) if the body has been, but is no longer, a company—a period that:

(i)    ended at a time when the body was a company; and

(ii)   was a financial year of the body for the purposes of this Act as in force at that time;

(c) if the body is a close corporation—a period that is a financial year of the body for the purposes of the Close Corporations Act 1989;

(d) if the body has been, but is no longer, a close corporation— a period that:

(i)    ended at a time when the body was a close corporation; and

(ii)   was a financial year of the body for the purposes of the Close Corporations Act 1989 as in force at that time;

(e) in any case—a period that:

(i)    ended at a time when the body was not a company but was a company of a State or Territory; and

(ii)   was a financial year of the body for the purposes of the company law of that State or Territory as in force at that time; or

(f) in any case—a period that:

(i)    ended at a time when the body was neither a company nor a company of a State or Territory; and

(ii)   in respect of which a profit and loss account of the body was made out, or was required by the law of


 

the bodys incorporation as at that time to be made out;

and, in relation to a deed within the meaning of Division 5 of Part 7.12, means the 12 months ending on 30 June or on such other day as the deed specifies instead of 30 June;

floating charge includes a charge that conferred a floating security at the time of its creation but has since become a fixed or specific charge;

foreign companies law, in relation to a State, Territory or excluded Territory, means the law, or a previous law, of that State, Territory or excluded Territory relating to foreign companies within the meaning of that law or previous law;

foreign company means:

(a) a foreign corporation;

(b) a body corporate incorporated in an excluded Territory; or

(c) an unincorporated body that:

(i)    is formed in an excluded Territory or outside Australia and the external Territories;

(ii)   under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and

(iii)  does not have its head office or principal place of business in Australia;

but does not include a corporation sole or an exempt public authority;

foreign corporation means a foreign corporation within the meaning of paragraph 51 (20) of the Constitution;

function includes a duty;

Fund means the National Guarantee Fund established under subsection 929 (1);

FUTURES

futures advice business has the meaning given by section 71;

futures adviser means a person who carries on, or 2 or more persons who together carry on, a futures advice business;

futures advisers licence means a futures advisers licence granted under Part 8.3;

futures association means a body corporate:

(a) that is an eligible corporation; and

(b) in relation to which an approval under section 1132 is in force;

futures broker means:

(a) except in Parts 8.4 and 8.5:


 

(i)    a person who carries on, or 2 or more persons who together carry on, a futures broking business, whether or not the person, or any of the persons, also deals in futures contracts on the persons own account; or

(ii)   the holder of a futures brokers licence; and

(b) in Part 8.4 or 8.5—a corporation that holds a futures brokers licence;

futures brokers licence means a futures brokers licence granted under Part 8.3;

futures broking business, in relation to a person, means, subject to subsection 25 (4), a business of dealing in futures contracts on behalf of other persons;

futures contract has the meaning given by section 72;

futures exchange means a body corporate:

(a) that is an eligible corporation; and

(b) in relation to which an approval under section 1126 is in force;

futures law means a provision of, or a law corresponding to a provision of, Chapter 8;

futures licence means a futures brokers licence or a futures advisers licence;

futures licensee means a person who holds a futures licence;

futures market means a market, exchange or other place at which, or a facility by means of which, futures contracts are regularly acquired or disposed of;

futures option means an option or Chapter 8 right to assume, at a specified price or value and within a specified period, a bought position, or a sold position, in relation to an eligible commodity agreement or in relation to an adjustment agreement;

futures organisation means:

(a) except in Part 8.6—a futures exchange or a futures association; or

(b) in Part 8.6:

(i)    a futures exchange; or

(ii)   a futures association, other than a futures association each of whose members is also a member of a futures exchange;

futures report means an analysis or report about futures contracts;

futures representative has the meaning given by section 73;

G

Gazette notice means a notice published in the Gazette;

group, in relation to a company that is a group holding company at the end of a financial year, means all of the following:

(a) the company;


 

(b) its subsidiaries as at the end of that financial year;

group accounts, in relation to a body corporate, means, if the body is a group holding company at the end of the financial year concerned:

(a) a set of consolidated accounts for the group;

(b) 2 or more sets of consolidated accounts together covering the group;

(c) separate accounts for each body corporate in the group; or

(d) the combination of one or more sets of consolidated accounts, and one or more sets of separate accounts, together covering the group;

group holding company has the meaning given by section 74;

guarantor body, in relation to a borrowing corporation, means a body corporate that has guaranteed, or has agreed to guarantee, the repayment of any money received or to be received by the borrowing corporation in response to:

(a) an invitation to subscribe for or buy debentures of the borrowing corporation or an offer of debentures of the borrowing corporation for subscription or purchase; or

(b) an offer of debentures as consideration for the acquisition, under a takeover scheme, of shares in a body corporate;

h

have, in relation to information, includes be in possession of the information;

hold, in relation to a person, in relation to a document that is, or purports to be, a copy of a licence, means have in the persons possession;

holding company means:

(a) in relation to a body corporate—a body corporate of which the first-mentioned body is a subsidiary by virtue of Division 6; or

(b) in Part 3.6 or 3.7—a company of which some body corporate is a subsidiary by virtue of Division 6 of this Part;

i

included, in relation to an official list, has the meaning given by section 75;

incorporate, except in section 112, includes form;

incorporated in Australia has a meaning affected by section 76;

industrial instrument means:

(a) a contract of employment; or

(b) a law, award, determination or agreement relating to terms or conditions of employment;

information includes complaint;

information service means:


 

(a) a broadcasting service;

(b) an interactive or broadcast videotext or teletext service or a similar service;

(c) an online database service or a similar service; or

(d) any other prescribed service;

injury compensation means compensation payable under any law relating to workers compensation;

inside information, in relation to a futures contract, means information that is not generally available but, if it were generally available, would be likely to affect materially the price for dealing in:

(a) that futures contract; or

(b) a futures contract of the same kind as that futures contract;

insolvent under administration means a person who:

(a) under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or

(b) under the law of a country other than Australia or the law of an external Territory, has the status of an undischarged bankrupt;

and includes:

(c) a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external Territory or of the law of a country other than Australia, where the terms of the deed have not been fully complied with; and

(d) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external Territory or of the law of a country other than Australia where a final payment has not been made under that composition;

insurance corporation means a body corporate that carries on, as its sole or principal business, insurance (other than State insurance not extending beyond the limits of the State concerned);

interstate, in relation to carrying on business, has the meaning given by section 22;

invalid futures authority has the meaning given by subsection 87 (2);

invalid securities authority has the meaning given by subsection 88 (2);

investment advice business has the meaning given by section 77;

investment adviser means a person who carries on, or 2 or more persons who together carry on, an investment advice business;

investment advisers licence means an investment advisers licence granted under Part 7.3;

investment contract means any contract, scheme or arrangement that, in substance and irrespective of its form, involves the investment of


 

money in or under such circumstances that the investor acquires or may acquire an interest in, or right in respect of, property, whether in Australia or elsewhere, that, under, or in accordance with, the terms of investment will, or may at the option of the investor, be used or employed in common with any other interest in, or right in respect of, property, whether in Australia or elsewhere, acquired in or under like circumstances;

involved, in relation to a contravention, has the meaning given by section 79;

issue includes:

(a) in relation to prescribed interests—make available; and

(b) otherwise—circulate, distribute and disseminate;

J

Judge means a judge of the Court;

L

law, in relation to a State or Territory, means, subject to section 58, a law of, or a law in force in, the State or Territory;

lawyer means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person;

leave of absence means long service leave, extended leave, recreation leave, annual leave, sick leave or any other form of leave of absence from employment;

licence means:

(a) in Chapter 7—a securities licence; or

(b) in Chapter 8—a futures licence;

licensee means:

(a) in Chapter 7—a securities licensee;

(b) in Chapter 8—a futures licensee; or

(c) in relation to a licence—the person who holds the licence;

limited company means a company limited by shares, a company limited by guarantee or a company limited both by shares and by guarantee, but does not include a no liability company;

liquidating trade means a transaction whereby, for the purpose of closing out a futures contract, the person in the bought position, or sold position, under the futures contract assumes an offsetting sold position, or offsetting bought position, as the case may be, under another futures contract;

liquidator, in sections 475, 531, 532 and 535 to 540, inclusive, and in Chapters 7 and 8, includes a provisional liquidator;

listed corporation means a body corporate that is included in an official list of a securities exchange in Australia or an external Territory;

listing rules has:

(a) in Chapter 6—the meaning given by section 603; or

(b) in Chapter 7—the meaning given by section 761;


 

local agent, in relation to a foreign company, means a person who is a local agent of the foreign company by virtue of subsection 346 (5);

lodge means lodge with the Commission;

M

machine-copy, in relation to a document, means a copy made of the document by any machine in which, or process by which, an image of the contents of the document is reproduced from surface contact with the document or by the use of photo-sensitive material other than transparent photographic film;

management company, in relation to any prescribed interests made available or proposed to be made available or in relation to any deed that relates to prescribed interests made available or proposed to be made available, means the corporation by or on behalf of which the prescribed interests have been or are proposed to be made available, and includes any person for the time being exercising the functions of the management company;

manager has a meaning affected by section 90;

marketable securities means debentures, stocks, shares or bonds of any Government, of any local government authority or of any corporation, association or society, and includes any right or option in respect of shares in any corporation and any prescribed interest;

member:

(a) in relation to a securities exchange or stock exchange within the meaning of the provision where the expression occurs— means, except in paragraph (a) of the definition of member organisation, a person who is, or who is a partner in, a member organisation of the securities exchange; or

(b) in relation to a body corporate that is, or proposes to become, a futures organisation—has a meaning affected by section 56;

member firm, in relation to a securities exchange within the meaning of Chapter 7, means a partnership that is a member organisation of the securities exchange;

member organisation means:

(a) in relation to a securities exchange or stock exchange within the meaning of the provision where the expression occurs:

(i)    a member of the securities exchange who carries on a business of dealing in securities otherwise than in partnership; or

(ii)   a partnership that the securities exchange recognises as a member organisation or member firm and that carries on a business of dealing in securities; and

(b) in relation to a futures organisation:


 

(i)    a member of the futures organisation that carries on a business of dealing in futures contracts otherwise than in partnership; or

(ii)   a partnership that the futures organisation recognises as a member organisation, that carries on a business of dealing in futures contracts and each partner in which is a member of some futures organisation;

members voluntary winding up means a winding up under Part 5.5 where a declaration has been made and lodged pursuant to section 494;

memorandum means memorandum of association;

minerals means minerals in any form, whether solid, liquefied or gaseous and whether organic or inorganic;

minimum subscription, in relation to any shares offered to the public for subscription or for which the public are invited to subscribe, means the amount stated in the prospectus relating to the offer or invitation under section 1035 as the minimum amount that, in the opinion of the directors, must be raised by the issue of the shares;

mining company means a company:

(a) whose memorandum contains a provision stating the objects of the company; and

(b) whose sole objects are mining purposes;

mining purposes means any or all of the following purposes:

(a) prospecting for ores, metals or minerals;

(b) obtaining, by any mode or method, ores, metals or minerals;

(c) the sale or other disposal of ores, metals, minerals or other products of mining;

(d) the carrying on of any business or activity necessary for, or incidental to, any of the foregoing purposes;

whether in Australia or elsewhere, but does not include quarrying operations for the sole purpose of obtaining stone for building, roadmaking or similar purposes;

Minister, in relation to a State, means:

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

(b) in any other case—a Minister of the Crown of that State;

Ministerial Council means the Ministerial Council for Companies and Securities established by the Agreement made on 22 December 1978 between the Commonwealth and the States a copy of which is set out in the Schedule to the National Companies and Securities Commission Act 1979, being that agreement as amended or affected by any other agreement;

“modifications includes additions, omissions and substitutions;


 

money includes a payment order;

N

NCSC means the National Companies and Securities Commission;

negative, in relation to a document, means a transparent negative photograph used, or intended to be used, as a medium for reproducing the contents of the document, and includes a transparent photograph made from surface contact with the original negative photograph;

new company has the meaning given by section 81;

no liability company means a company that does not have under its constitution a contractual right to recover calls made on its shares from a shareholder who defaults in payment of those calls;

nominee corporation means a body corporate whose principal business is the business of holding marketable securities as a trustee or nominee;

non-broker means a person who is neither a futures broker nor one of 2 or more persons who together constitute a futures broker;

non-dealer means a person who is neither a dealer nor one of 2 or more persons who together constitute a dealer;

non-voting share, in relation to a body corporate, means an issued share in the body that is not a voting share in the body;

notice includes a circular and an advertisement;

NSEGC means the National Securities Exchanges Guarantee Corporation referred to in a law corresponding to Part 7.10;

O

oath includes affirmation;

of, in relation to securities, means, in the case of prescribed interests, made available by;

offence means an offence against a law of the Commonwealth or a State or Territory;

officer, in relation to a body corporate, includes:

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

(b) a receiver and manager, appointed under a power contained in an instrument, of property of the body;

(c) an official manager, or deputy official manager, of the body;

(d) a liquidator of the body appointed in a voluntary winding up of the body;

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

(f) in the case of a close corporation—a member of the body;

but does not include:

(g) a receiver who is not also a manager;


 

(h) a receiver and manager appointed by a court; or

(j) a liquidator appointed by a court;

official liquidator means a person registered as an official liquidator under section 1283 or deemed to be registered as an official liquidator under this Act;

official manager means a person appointed as an official manager under Part 5.3;

on, in relation to a stock market or futures market, includes at or by means of;

on behalf of includes on the instructions of;

open, in relation to the registered office of a body corporate, means open and accessible to the public;

option contract, in Chapter 7, means:

(a) a contract under which a party acquires from another party an option or right, exercisable at or before a specified time, to buy from, or to sell to, that other party a number of specified securities, or of a specified class of securities, being:

(i)    debentures, stocks or bonds issued or proposed to be issued by a government or an authority of a government; or

(ii)   shares in, debentures of, or prescribed interests made available by, a body corporate;

at a price specified in, or to be determined in accordance with, the contract; or

(b) a contract entered into on a stock market of a securities exchange within the meaning of Chapter 7 or on an exempt stock market, being a contract under which a party to the contract acquires from another party to the contract an option or right, exercisable at or before a specified time:

(i)    to buy from, or to sell to, that other party an amount of a specified foreign currency, or a quantity of a specified commodity, at a price specified in, or to be determined in accordance with, the contract; or

(ii)   to be paid by that other party an amount of money to be determined by reference to the amount by which a specified number is greater or less than the number of a specified index, being the Australian Stock Exchanges All Ordinaries Price Index or a prescribed index, as at the time when the option or right is exercised;

own account has:

(a) in relation to a person dealing in a futures contract—a meaning affected by section 29; or

(b) in relation to a person dealing in, or entering into a transaction in relation to, securities—a meaning affected by section 84;


 

P

paid up, in Part 4.3, includes credited as paid up;

Part 5.1 body means:

(a) a company;

(b) a registered Australian corporation; or

(c) a foreign corporation that is a registered foreign company;

Part 5.7 body means a Type A body or Type B body;

participation interest means any right to participate, or any interest:

(a) in any profits, assets or realisation of any financial or business undertaking or scheme whether in Australia or elsewhere;

(b) in any common enterprise, whether in Australia or elsewhere, in relation to which the holder of the right or interest is led to expect profits, rent or interest from the efforts of the promoter of the enterprise or a third party; or

(c) in any investment contract;

whether or not the right or interest is enforceable, whether the right or interest is actual, prospective or contingent, whether or not the right or interest is evidenced by a formal document and whether or not the right or interest relates to a physical asset, but does not include:

(d) such a right that is a right to participate in a time-sharing scheme;

(e) any share in, unit of a share in, or debenture of, a body corporate;

(f) any interest in, or arising out of, a policy of life insurance;

(g) an interest in a partnership agreement, unless the agreement or proposed agreement:

(i)    relates to an undertaking, scheme, enterprise or investment contract promoted by or on behalf of a person whose ordinary business is or includes the promotion of similar undertakings, schemes, enterprises or investment contracts, whether or not that person is, or is to become, a party to the agreement or proposed agreement; or

(ii)   subject to section 85, is or would be an agreement, or is or would be within a class of agreements, prescribed by the regulations for the purposes of this paragraph;

(h) a cheque, order for the payment of money, bill of exchange or promissory note;

(j) a document issued or executed by an Australian bank in the ordinary course of its banking business, being a document that evidences or acknowledges indebtedness of the bank arising in the ordinary course of that business; or


 

(k) a document that is not a debenture by virtue of paragraph (a) or (f) of the definition of debenture in this section;

party, in relation to a Chapter 8 agreement, means, in the case of a proposed or discharged relevant agreement, a person who would be a party to the relevant agreement if it were in effect;

payment order means a cheque, bank cheque, bank draft, money order or postal order;

place of origin means:

(a) in relation to a registrable Australian corporation—the State or Territory in which the corporation is incorporated; or

(b) in relation to a foreign company or a Part 5.7 body—the place of incorporation of the foreign company or Part 5.7 body;

possession has a meaning affected by section 86;

power includes an authority;

premises includes:

(a) a structure, building, aircraft, vehicle or vessel;

(b) any land or place (whether enclosed or built on or not); and

(c) a part of a structure, building, aircraft, vehicle or vessel or of such a place;

prescribed means prescribed by this Act, by the regulations or by the rules;

prescribed interest means:

(a) a participation interest; or

(b) a right, whether enforceable or not, whether actual, prospective or contingent and whether or not evidenced by a formal document, to participate in a time-sharing scheme;

but does not include a right or interest, or a right or interest included in a class or kind of rights or interests, declared by the regulations to be an exempt right or interest, or a class or kind of exempt rights or interests, for the purposes of Chapter 7;

“‘previous Fund means the National Guarantee Fund that was established under a law corresponding to section 929;

price, in relation to a commodity agreement or a futures contract, or in Chapter 8, includes any amount payable for the delivery of a commodity under an agreement;

principal Australian register, in relation to a foreign company, means a branch register, kept under section 351, of members of the foreign company;

principal executive officer, in relation to a company, means the principal executive officer of the company for the time being, by whatever name called, and whether or not he or she is a director;

principal register, in relation to a company, means the register, kept under section 209, of members of the company;


 

printed includes type-written, lithographed or reproduced by any mechanical means;

procure includes cause;

profit and loss account includes income and expenditure account, revenue account or any other account showing the results of the business of a person or body for a period and, if the person or body concerned is engaged in the development or exploration of natural resources, also includes an operations account or any like account and a development account or any like account;

profit or loss, in Parts 3.6 and 3.7, means:

(a) in relation to a company—the profit or loss resulting from operations of the company; and

(b) in relation to 2 or more bodies corporate—the profit or loss resulting from operations of those bodies;

promoter, in relation to a prospectus issued by or in connection with a body corporate, means a promoter of the body who was a party to the preparation of the prospectus or of any relevant portion of the prospectus, but does not include a person merely because of the person acting in the proper performance of the functions attaching to the persons professional capacity or to the persons business relationship with a promoter of the body;

proper authority has:

(a) in relation to a futures licensee—the meaning given by subsection 87 (1); and

(b) in relation to a securities licensee—the meaning given by subsection 88 (1);

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;

proprietary company means:

(a) except in relation to a State or Territory:

(i)    a company incorporated as a proprietary company by virtue of section 116;

(ii)   a company converted into a proprietary company under subsection 168 (1); or

(iii)  a body corporate registered as a proprietary company under subsection 129 (4) or 137 (4);

being a company that has not since ceased under section 168 or 170 to be a proprietary company; and

(b) in relation to a State or Territory—a body corporate:

(i)    that is a proprietary company for the purposes of the company law of the State or Territory;

(ii)   that has a share capital;