Federal Register of Legislation - Australian Government

Primary content

Australian Securities Commission Act 1989

Act No. 90 of 1989 as amended, taking into account amendments up to Act No. 115 of 1995
Registered 18 Nov 2009
Start Date 09 Dec 1995
End Date 31 Dec 1997
Date of repeal 15 Jul 2001
Repealed by Corporations (Repeals, Consequentials and Transitionals) Act 2001

AUSTRALIAN SECURITIES COMMISSION ACT 1989
- Updated as at 15 December 1995 (HISTACT CHAP 3456 #DATE 15:12:1995)

*1* The Australian Securities Commission Act 1989 as shown in this reprint comprises Act No. 90, 1989 amended as indicated in the Tables below.
Table of Acts
Act Date Date of Application
Number and of assent commencement saving or
year transitional
provisions
Australian Securities Commission Act 1989
90, 1989 27 June 1989 Part 1 (ss. 1-6): Royal Assent
Parts 2-9 (ss. 7-170), Part 13
(ss. 235-240) and Part 15
(ss. 244-251):
1 July 1989 (see Gazette 1989,
No. S217)
Remainder: 1 Jan 1991 (see Gazette
1991, No. S335)
Australian Securities Commission Amendment Act 1990
41, 1990 16 June 1990 1 July 1990 (see Gazette 1990,
No. S175) -
Corporations Legislation Amendment Act 1990
110, 1990 18 Dec 1990 Ss. 8, 9 (1), Parts 4-6 (ss.
10-20): 1 Jan 1991 (see Gazette
1990, No. S335)
S. 9 (2): 8 Apr 1991 (see Gazette
1991, No. S79)
Remainder: Royal Assent
S. 11
Corporations Legislation Amendment Act 1991
110, 1991 27 June 1991 (a) -
Industrial Relations Legislation Amendment Act 1991
122, 1991 27 June 1991 Ss. 4 (1), 10 (b) and 15-20:
1 Dec 1988
Ss. 28 (b)-(e), 30 and 31: 10 Dec
1991 (see Gazette 1991, No. S332)
Remainder: Royal Assent
S. 31 (2)
Cash Transaction Reports Amendment Act 1991
188, 1991 6 Dec 1991 Ss. 1-3 and 7: Royal Assent
Remainder: 6 Dec 1992 (see Gazette
1992, No. GN25)
-
Corporations Legislation (Evidence) Amendment Act 1992
27, 1992 14 May 1992 14 May 1992 S. 10
Superannuation Legislation (Consequential Amendments and
Transitional Provisions) Act 1992
94, 1992 30 June 1992 S. 3: 1 July 1990
Remainder: Royal Assent
-
Corporate Law Reform Act 1992
210, 1992 24 Dec 1992 Part 1 (ss. 1-3): Royal Assent
Ss. 4-26 (1), 27, 28 (2), 174-176
and 178-185: 1 Feb 1993 (see
Gazette 1993, No. S25)
Ss. 26 (2) and 28 (1): 1 Feb 1994
Remainder: 23 June 1993 (see
Gazette 1993, No. S186)
-
Corporate Law Reform Act 1994
31, 1994 4 Mar 1994 Schedule 1 (items 1-86, 95-105,
113 (a), 114-116): 1 July 1994 (see
Gazette 1994, No. S220)
Schedule 1 (items 87-94, 106-112,
113 (b)), Schedules 2 and 6: 4 Sept
1994
Schedules 3 and 4: 15 Apr 1994 (see
Gazette 1994, No. GN13)
Remainder: 4 Mar 1994
S. 9
Corporations Legislation Amendment Act 1994
104, 1994 5 July 1994 S. 7 (2): 5 Jan 1995 (b)
Ss. 8 (3) and 12 (2): Royal Assent
(b)
S. 9 (2): (b) -
Evidence (Transitional Provisions and Consequential Amendments) Act
1995
3, 1995 23 Feb 1995 S. 14: Royal Assent (c)
S. 16 (1): 16 Oct 1995 (see Gazette
1995, No. GN40) (c)
S. 16 (2): 18 Apr 1995 (c)
S. 14
S. 16 (2)
First Corporate Law Simplification Act 1995
115, 1995 17 Oct 1995 Ss. 1 and 2: Royal Assent
Remainder: 9 Dec 1995 (see Gazette
1995, No. GN47)
-
(a) The Australian Securities Commission Act 1989 was amended by sections 10, 11 and 19-23 only of the Corporations Legislation Amendment Act 1991, subsections 2 (6), (7), (8) and (12) of which provide as follows:
"(6) Subject to subsections (7) and (8), the amendments of the Australian Securities Commission Act 1989 that are made by section 11 of this Act are taken to have commenced on 1 January 1991.
"(7) The following amendments of the Australian Securities Commission Act 1989 that are made by section 11 of this Act commence on the day on which this Act receives the Royal Assent:
(a) the insertion of new paragraph 6A (ba);
(b) the amendments of sections 43, 46, 49 and 102.
"(8) The following amendments of the Australian Securities Commission Act 1989 that are made by section 11 of this Act commence on the day on which section 8 of this Act commences:
(a) the amendment of the heading to Division 3 of Part 7;
(b) the repeal and substitution of section 128;
(c) the amendment of section 129.
"(12) The provisions of Part 16 of the Australian Securities Commission Act 1989 (which is added by section 23 of this Act) commence on a day or days to be fixed by Proclamation for the purposes of this subsection."
The date fixed in pursuance of subsection 2 (8) on the commencement of section 8 was 1 August 1991 (see Gazette 1991, No. S208).
The date fixed in pursuance of subsection 2 (12) was 31 July 1992 (see Gazette 1992, No. GN30).
(b) The Australian Securities Commission Act 1989 was amended by the Corporations Legislation Amendment Act 1994, subsections 2 (1), (2), (4) and (5) of which provide as follows:
"(1) Parts 1, 2 and 3 and Schedules 5 and 9 commence on the day on which this Act receives the Royal Assent.
"(2) Schedule 6 commences immediately after all the other provisions of this Act, and all the provisions of the Corporate Law Reform Act 1994, have commenced.
"(4) Subject to subsection (5), the items, and paragraphs of items, of Schedules 2, 4, 7 and 8 commence on a day or days to be fixed by Proclamation.
"(5) If an item, or a paragraph of an item, referred to in subsection (4) does not commence under that subsection within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period."
(c) The Australian Securities Commission Act 1989 was amended by the Evidence (Transitional Provisions and Consequential Amendments) Act 1995, subsections 2 (1) and (3)-(5) of which provide as follows:
"(1) This Part and Parts 2 and 3 commence on the day on which this Act receives the Royal Assent.
"(3) Subject to subsection (4) of this section, subsection 16 (1) commences on a day to be fixed by Proclamation.
"(4) A Proclamation is not to be made under subsection (3) of this section until the law of each State and the law of the Northern Territory have been amended to the effect that the provisions of the Evidence Act 1995 referred to in subsection 16 (1) of this Act apply, for the purposes of the ASC Law, as a law of that State or the Northern Territory (as the case requires).
"(5) Subsection 16 (2) commences on the day on which the provisions of Part IIIA of the Evidence Act 1905 are repealed under subsection 3 (1) of this Act."
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
S. 1 rep. No. 110, 1990
Div. 1 of Part 1 (s. 1)
ad. No. 110, 1990
S. 1 ad. No. 110, 1990
am. No. 110, 1991
Div. 2 of Part 1 (ss. 1A-1E)
ad. No. 110, 1990
Ss. 1A-1E ad. No. 110, 1990
Heading to Div. 3 of Part 1
ad. No. 110, 1990
S. 3 rep. No. 110, 1990
Heading to Div. 4 of Part 1
ad. No. 110, 1990
S. 5 am. No. 110, 1990; No. 110, 1991; Nos. 94 and
210, 1992; No. 104, 1994
S. 6A ad. No. 110, 1990
am. No. 110, 1991
Ss. 6B-6D ad. No. 110, 1990
S. 6E ad. No. 110, 1991
S. 9 am. No. 41, 1990
Ss. 11-14 am. No. 110, 1990
S. 14A ad. No. 110, 1990
S. 15 am. No. 110, 1990
S. 22 am. No. 104, 1994
Ss. 25, 26 am. No. 104, 1994
Ss. 27-29 am. No. 110, 1990
Ss. 35-37 am. No. 110, 1990
S. 40 rs. No. 110, 1990
S. 42 rep. No. 110, 1990
S. 43 am. No. 110, 1990; No. 110, 1991
S. 45 rep. No. 110, 1990
S. 46 am. No. 110, 1990; No. 110, 1991
S. 47 am. No. 104, 1994
S. 49 am. No. 110, 1990; No. 110, 1991
Ss. 50, 51 am. No. 110, 1990
Ss. 53, 54 am. No. 110, 1990
S. 56 am. No. 110, 1990; No. 104, 1994
S. 57 am. No. 110, 1990
S. 59 am. No. 110, 1990
Ss. 61, 62 am. No. 110, 1990
Ss. 63-66 am. No. 104, 1994
S. 67 am. No. 110, 1990; No. 104, 1994
S. 68 am. No. 110, 1990; No. 27, 1992
S. 69 am. No. 104, 1994
S. 75 am. No. 104, 1994
S. 76 am. No. 110, 1990; No. 27, 1992
S. 77 am. No. 110, 1990
Ss. 79-81 am. No. 110, 1990
S. 83A ad. No. 110, 1990
S. 86 am. No. 110, 1990; No. 115, 1995
S. 88 am. No. 110, 1990; No. 110, 1991; No. 3, 1995
S. 91 am. No. 110, 1990; No. 210, 1992; No. 104,
1994
S. 93 am. No 110, 1990
S. 95 am. No. 110, 1990
S. 96 rs. No. 110, 1990
S. 102 am. No. 110, 1990; No. 110, 1991
S. 111 am. No. 122, 1991; No. 94, 1992
S. 113 rs. No. 122, 1991
S. 114 am. No. 94, 1992
Div. 3 to Part 5 (s. 119A)
ad. No. 110, 1990
S. 119A ad. No. 110, 1990
S. 122A ad. No. 110, 1990
S. 125 am. No. 104, 1994
S. 127 am. No. 110, 1990; No. 110, 1991; No. 31,
1994; No. 104, 1994
S. 127A ad. No. 110, 1991
am. No. 104, 1994
Heading to Div. 3 of Part 7
am. No. 110, 1991
S. 128 rs. No. 110, 1991
am. No. 104, 1994
S. 129 am. No. 110, 1991
S. 134 am. No. 110, 1990
S. 135 am. No. 110, 1990; No. 110, 1991
Ss. 147, 148 am. No. 110, 1990
S. 148A ad. No. 31, 1994
Ss. 172, 173 am. No. 110, 1990
S. 174 rs. No. 110, 1990
am. No. 110, 1991
S. 180 rs. No. 122, 1991
Ss. 184, 185 am. No. 110, 1990; No. 104, 1994
Heading to Div. 3 of Part 10
am. No. 104, 1994
S. 187 am. No. 104, 1994
S. 188 rs. No. 104, 1994
S. 189 rs. No. 104, 1994
am. No. 104, 1994
S. 190 am. No. 104, 1994
S. 191 rs. No. 104, 1994
S. 192 am. No. 104, 1994
S. 193 rs. No. 104, 1994
S. 193A ad. No. 104, 1994
S. 194 am. No. 104, 1994
S. 195 rs. No. 104, 1994
Ss. 196, 197 am. No. 110, 1990; No. 104, 1994
Ss. 198-201 am. No. 104, 1994
S. 201A ad. No. 104, 1994
S. 203 am. No. 110, 1991
S. 204 rs. No. 110, 1990
am. No. 110, 1991
S. 213 am. No. 110, 1990
S. 216 am. No. 104, 1994
Ss. 219, 220 am. No. 104, 1994
S. 221 am. No. 110, 1990
Heading to Part 12
rs. No. 110, 1990
S. 224 rs. No. 110, 1990
S. 225 am. No. 110, 1990
S. 226 am. No. 110, 1990; No. 210, 1992
S. 231 am. No. 110, 1990
Ss. 233, 234 am. No. 110, 1990
Part 13 (ss. 235-240)
rep. No. 110, 1990
Ss. 235-240 rep. No. 110, 1990
Ss. 243A-243C ad. No. 110, 1990
S. 243D ad. No. 110, 1990
am. No. 188, 1991
S. 244A ad. No. 104, 1994
S. 245 am. No. 110, 1990
S. 246 am. No. 110, 1990; No. 210, 1992
S. 248 am. No. 110, 1990
Ss. 249, 250 rep. No. 110, 1990
S. 251 am. No. 110, 1990
S. 252 ad. No. 110, 1990
Part 16 (ss. 253-262)
ad. No. 110, 1991
Ss. 253-262 ad. No. 110, 1991
Part 17 (ss. 263-267)
ad. No. 104, 1994
Ss. 263-267 ad. No. 104, 1994
#ADD 16:1:1996

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - TABLE OF PROVISIONS

TABLE

TABLE OF PROVISIONS
Section
PART 1 - PRELIMINARY
Division 1 - Objects
1. Objects
Division 2 - Citation
1A. Short title
1B. Alternative citations of this Act and regulations under
section 251
1C. Citation of provisions of this Act, and regulations
under section 251, applying as law of another
jurisdiction
1D. References to ASC Law and ASC Regulations
1E. Saving of citation provisions of other jurisdictions
Division 3 - Commencement and application
2. Commencement
4. Extension to external Territories
Division 4 - Interpretation
5. Interpretation
6. Giving information
6A. Acting appointments
6B. Alterations of names and constitutions
6C. Presentation of papers to the Parliament
6D. Periodic reports
6E. Liabilities etc. imposed on Commonwealth by other
ASC Laws
PART 2 - THE COMMISSION AND ITS FUNCTIONS AND POWERS
7. Establishment
8. Commission is a body corporate
9. Membership
10. Chairperson and Deputy Chairperson
11. Functions and powers
12. Directions by Minister
PART 3 - INVESTIGATIONS AND INFORMATION-GATHERING
Division 1 - Investigations
13. General powers of investigation
14. Minister may direct investigations
14A. Directions under relevant previous laws
15. Investigation after report of receiver or liquidator
16. Interim report on investigation
17. Final report on investigation
18. Distribution of report
Division 2 - Examination of persons
19. Notice requiring appearance for examination
20. Proceedings at examination
21. Requirements made of examinee
22. Examination to take place in private
23. Examinee's lawyer may attend
24. Record of examination
25. Giving to other persons copies of record
26. Copies given subject to conditions
27. Record to accompany report
Division 3 - Inspection of books
28. When certain powers may be exercised
29. Commission may inspect books without charge
30. Notice to produce books about affairs of body corporate
31. Notice to produce books about securities
32. Notice to produce books about futures contracts
33. Notice to produce documents in person's possession
34. Commission may authorise persons to require production
of books
35. Application for warrant to seize books not produced
36. Grant of warrant
37. Powers where books produced or seized
38. Powers where books not produced
39. Power to require person to identify property of body
corporate
Division 4 - Requirements to disclose information
about securities or futures
40. When certain powers may be exercised
41. Acquisitions and disposals of securities
43. Exercise of certain powers of the Commission in relation
to securities
44. Dealings in futures contracts
46. Exercise of certain powers of Commission in relation to
futures contracts
47. Disclosures to take place in private
48. Lawyer of person making disclosure may attend
Division 5 - Proceedings after an investigation
49. Commission may cause prosecution to be begun
50. Commission may cause civil proceeding to be begun
Division 6 - Hearings
51. Power to hold hearings
52. General discretion to hold hearing in public or private
53. Request by person appearing at hearing that it take
place in public
54. Certain hearings to take place in private
55. Commission may restrict publication of certain material
56. Who may be present when hearing takes place in private
57. Involvement of person entitled to appear at hearing
58. Power to summon witnesses and take evidence
59. Proceedings at hearings
60. Commission to take account of evidence and submissions
61. Reference to Court of question of law arising at hearing
62. Protection of members etc.
Division 7 - Offences
63. Non-compliance with requirements made under this Part
64. False information
65. Obstructing person acting under this Part
66. Contempt of Commission
67. Concealing books relevant to investigation
68. Self-incrimination
69. Legal professional privilege
70. Powers of Court where non-compliance with Part
Division 8 - Commission's powers where
non-compliance with Part
71. Orders by Commission
72. Orders in relation to securities of a body corporate
73. Orders in relation to securities generally
74. Orders in relation to futures contracts
75. Orders under this Division
Division 9 - Evidentiary use of certain material
76. Statements made at an examination: proceedings against
examinee
77. Statements made at an examination: other proceedings
78. Weight of evidence admitted under section 77
79. Objection to admission of statements made at examination
80. Copies of, or extracts from, certain books
81. Report under Division 1
82. Exceptions to admissibility of report
83. Material otherwise admissible
Division 10 - Miscellaneous
83A. Exercise of powers etc. for purposes of investigation
under corresponding law
84. Requirement made of a body corporate
85. Evidence of authority
86. Giving documents to natural persons
87. Place and time for production of books
88. Application of Crimes Act and Evidence Act
89. Allowances and expenses
90. Expenses of investigation under Division 1
91. Recovery of expenses of investigation
92. Compliance with Part
93. Effect of Part
PART 4 - THE COMMISSION'S BUSINESS
Division 1 - General
94. Arrangement of Commission's business
95. Commission to establish offices
96. Regional Commissioners
Division 2 - Divisions of the Commission
97. Commission may establish Division
98. Effect of direction establishing Division
99. Commission may reconstitute Division
100. Effect of reconstituting Division
101. Multiple Divisions
Division 3 - Delegation by the Commission
102. Delegation
Division 4 - Meetings of the Commission
103. Convening of meetings
104. Approved methods of communication
105. Quorum
106. Who is to preside at meetings
107. Procedure at meetings
PART 5 - THE COMMISSION'S MEMBERS
Division 1 - Terms and conditions
108. Term of office as member
109. Term of office as Chairperson or Deputy Chairperson
110. Resignation
111. Termination of appointment
112. Remuneration and allowances etc.
113. Leave of absence
114. Superannuation arrangements
115. Other terms and conditions
Division 2 - Acting appointments
116. Acting members
117. Acting Chairperson
118. Acting Deputy Chairperson
119. Limitation on appointments to act during vacancy
Division 3 - Delegation by members
119A. Delegation by members
PART 6 - THE COMMISSION'S STAFF
120. Staff
121. Consultants etc.
122. Staff seconded to the Commission
122A. Transfer of staff to Australian Public Service
PART 7 - PREVENTING CONFLICTS OF INTEREST AND
MISUSE OF INFORMATION
Division 1 - Disclosure of interests
123. Chairperson to disclose certain interests to Minister
124. Members to disclose certain interests to Chairperson
125. Notification of interests to Commission
126. Defence
Division 2 - Confidentiality
127. Confidentiality
127A. Secrecy
Division 3 - Restrictions on dealing in
futures contracts
128. Certain persons not to deal on the basis of certain
information
129. Compensation to other parties where section 128
contravened
130. Amount of compensation
131. Limitation of actions
132. Commission may sue
PART 8 - FINANCE
Division 1 - General
133. Payments to Commission by Commonwealth
134. The Commission's money
135. How Commission's money to be applied
136. Estimates
137. Limitation on contracts and leases
138. Application of Division 3 of Part XI of Audit Act
139. Liability to taxation
Division 2 - Trust property
140. Commission may accept property on trust
141. Trust money to be paid into bank account
142. How trust property to be applied
143. Accounts relating to trust property
144. Audit in relation to trust property
PART 9 - THE ADVISORY COMMITTEE
Division 1 - General
145. Establishment
146. Advisory Committee is a body corporate
147. Membership
148. Functions
148A. Minister to ask Advisory Committee to advise on
operation of continuous disclosure provisions etc.
149. Term of office as member
150. Resignation
151. Termination of appointment
152. Remuneration and allowances etc.
153. Meetings
154. Advisory Committee to inform itself in any manner
155. Publication of advice or recommendations
Division 2 - Staff and finance
156. Staff
157. Consultants etc.
158. Staff seconded to Advisory Committee
159. Payments to Advisory Committee by Commonwealth
160. The Advisory Committee's money
161. How Advisory Committee's money to be applied
162. Estimates
163. Limitation on contracts and leases
164. Application of Division 3 of Part XI of Audit Act
165. Liability to taxation
166. Advisory Committee may accept property on trust
167. Trust money to be paid into bank account
168. How trust property to be applied
169. Accounts relating to trust property
170. Audit in relation to trust property
PART 10 - THE CORPORATIONS AND SECURITIES PANEL
Division 1 - General
171. Establishment of Panel
172. Membership
173. President
174. Functions and powers of Panel
175. Term of office as member
176. Term of office as President
177. Resignation
178. Termination of appointment
179. Remuneration and allowances
180. Leave of absence
181. Other terms and conditions
182. Acting President
183. Annual report
Division 2 - Conduct of Panel's business
184. Constitution of Panel in relation to particular matters
185. Disclosure of interests by members
186. Application of Divisions 2 and 3 of Part 7
Division 3 - Inquiries by Panel
187. Interpretation
188. Power to hold inquiries
189. Who may be present at inquiry
190. Panel may restrict publication of certain material
191. How information or evidence is given to Panel
192. Power to summon witnesses and take evidence
193. Who presides at inquiry
193A. Quorum and determination of questions at inquiry
194. Representation at hearings
195. Procedure at inquiry
196. Reference to Court of question of law arising at hearing
197. Protection of members etc.
198. Non-compliance with requirements made under section 192
199. False evidence
200. Contempt of Panel
201. Powers of Court where non-compliance with section 192
201A. Undertakings to the Panel
PART 11 - COMPANIES AUDITORS AND LIQUIDATORS
DISCIPLINARY BOARD
Division 1 - Constitution of Disciplinary Board
202. Establishment of Disciplinary Board
203. Membership of Disciplinary Board
204. Functions and powers of Disciplinary Board
205. Term of office
206. Resignation from office
207. Termination of appointment
208. Acting Chairperson
209. Appointment of deputies
210. Meetings
211. Disclosure of interests
212. Remuneration and allowances
213. Confidentiality
214. Annual report
Division 2 - Hearings by Disciplinary Board
215. Interpretation
216. Hearings
217. Power to summon witnesses and take evidence
218. Proceedings at hearings
219. Failure of witnesses to attend and answer questions
220. Contempt of Disciplinary Board
221. Protection of members etc.
222. Hearings deemed to be judicial proceedings
223. Costs
PART 12 - AUSTRALIAN ACCOUNTING STANDARDS BOARD
224. Establishment of Standards Board
225. Membership of the Standards Board
226. Functions and powers
227. Term of office
228. Resignation from office
229. Termination of appointment
230. Acting Director
231. Meetings
232. Remuneration and allowances
233. Confidentiality
234. Annual Report
PART 14 - THE PARLIAMENTARY COMMITTEE
241. Establishment and membership
242. Powers and proceedings
243. Duties
PART 15 - MISCELLANEOUS
243A. Offences under 2 or more ASC Laws
243B. Offences committed partly in and partly out of the
jurisdiction
243C. Reciprocity in relation to offences
243D. Financial transaction reports
244. Review by Administrative Appeals Tribunal of certain
decisions
244A. Notice of reviewable decision and review rights
245. Validity of certain actions
246. Liability for damages
247. Duplicate seals
248. Judicial notice of Commission's seal and members'
signatures
251. The ASC Regulations
252. Regulations for the purposes of non-applied provisions
PART 16 - TRANSITIONAL
253. Interpretation
254. Trust assets of NCSC
255. Money of NCSC
256. Other assets and liabilities of NCSC
257. Effect of transfer of assets and liabilities to
Commission
258. NCSC instruments
259. Pending proceedings
260. Certificates relating to assets, liabilities and
instruments
261. Exemption from taxation
262. Pending proceedings etc. by or against the NCSC
PART 17 - COMMENCEMENT AND APPLICATION OF CERTAIN
AMENDMENTS OF THE ASC LAW
Division 1 - Preliminary
263. Meaning of "ASC Law"
264. Meaning of "amendment of the ASC Law"
Division 2 - Amendments made by the Corporations
Legislation Amendment Act 1994
265. Meaning of "Amending Act"
266. Schedule 4 - application of amendments made by Part 1 of
the Schedule
267. Schedule 5 - application of amendments made by Part 2 of
the Schedule

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - LONG TITLE

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 1
PART 1 - PRELIMINARY

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - Objects

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 1
Objects

SECT

1. (1) The objects of this Act are:
(a) to establish an Australian Securities Commission to administer such laws of the Capital Territory, the States and the other Territories as confer functions and powers under those laws on the Commission; and
(b) to provide for the functions, powers and business of the Commission; and
(c) to establish a Companies and Securities Advisory Committee to provide informed and expert advice to the Minister about the content, operation and administration of those laws, about corporations and about the securities markets and futures markets; and
(d) to establish a Corporations and Securities Panel, a Companies Auditors and Liquidators Disciplinary Board, an Australian Accounting Standards Board and a Parliamentary Joint Committee on Corporations and Securities.


(2) In performing its functions and exercising its powers, the Commission must strive:
(a) to maintain, facilitate, and improve, the performance of companies, and of the securities markets and futures markets, in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and
(b) to maintain the confidence of investors in the securities markets and futures markets by ensuring adequate protection for such investors; and
(c) to achieve uniformity throughout Australia in how the Commission and its delegates perform those functions and exercise those powers; and
(d) to administer national scheme laws effectively but with a minimum of procedural requirements; and
(e) to receive, process, and store, efficiently and quickly, the documents lodged with, and the information given to, the Commission under national scheme laws; and
(f) to ensure that those documents, and that information, are available as soon as possible for access by the public; and
(g) to take whatever action it can take, and is necessary, in order to enforce and give effect to national scheme laws.


(3) This Act has effect, and is to be interpreted, accordingly.


(4) Despite subsection (1), this Act is taken not to be, for the purposes of subsection 22 (3) of the Acts Interpretation Act 1901, an Act providing for the administration or government of a Territory.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Citation

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 1A
Short title

SECT

1A. This Act may be cited as the Australian Securities Commission Act 1989.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 1B
Alternative citations of this Act and regulations under section 251

SECT

1B. (1) This Act may also be referred to as the ASC Law of the Australian Capital Territory or, subject to section 1D, simply as the ASC Law.


(2) Regulations under section 251 may be referred to as the ASC Regulations of the Australian Capital Territory or, subject to section 1D, simply as the ASC Regulations.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 1C
Citation of provisions of this Act, and regulations under section
251, applying as law of another jurisdiction

SECT

1C. (1) This section has effect for the purposes of an Act, a law of the Australian Capital Territory, or an instrument made under an Act or under such a law.


(2) Where a law of a jurisdiction other than the Capital Territory contains provisions corresponding to sections 5 and 6 of the Corporations Act 1989 and also provides for provisions of this Act to apply as law of that jurisdiction, those provisions of this Act, as so applying, are the ASC Law of that jurisdiction.


(3) Where a law of a jurisdiction other than the Capital Territory provides for the regulations in force for the time being under section 251 of this Act to apply for the purposes of the ASC Law of that jurisdiction, those regulations as so applying are the ASC Regulations of that jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 1D
References to ASC Law and ASC Regulations

SECT

1D. (1) The object of this section is to help ensure that, so far as possible:
(a) the bodies established by the ASC Law of the Capital Territory, and the staff of those bodies, can perform functions and exercise powers; and
(b) persons can have dealings with those bodies;
as if the ASC Law of the Capital Territory, together with the ASC Law of each jurisdiction other than the Capital Territory, constituted a single national ASC Law applying of its own force throughout Australia.


(2) Subject to this section, a reference in an instrument to the ASC Law, or to the ASC Regulations, is to be taken, for the purposes of the laws of the Commonwealth and of the laws of the Capital Territory:
(a) to be a reference to the ASC Law, or to the ASC Regulations, of the Capital Territory; and
(b) to include a separate reference to the ASC Law, or to the ASC Regulations, of each jurisdiction other than the Capital Territory.


(3) Subsection (2) has effect except so far as the contrary intention appears in the instrument, or the context of the reference otherwise requires.


(4) Without limiting subsection (3), subsection (2) does not apply in relation to a reference expressed as a reference to the ASC Law, or to the ASC Regulations, of a jurisdiction.


(5) In this section:
"instrument" means:
(a) an Act or an instrument made under an Act; or
(b) a law of the Capital Territory or an instrument made under such a law; or
(c) an award or other industrial determination or order, or an industrial agreement; or
(d) any other order (whether executive, judicial or otherwise); or
(e) a notice, certificate or licence; or
(f) an agreement; or
(g) an application made, information laid, affidavit sworn, or warrant issued, for any purpose; or
(h) an indictment, presentment, summons or writ; or
(j) any other pleading in, or process issued in connection with, a legal or other proceeding; or
(k) any other document whatever.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 1E
Saving of citation provisions of other jurisdictions

SECT

1E. Subject to section 1D, section 1B is not intended to prevent a law of a jurisdiction other than the Capital Territory from:
(a) providing that the ASC Law, or the ASC Regulations, of that jurisdiction may be referred to simply as the ASC Law, or the ASC Regulations; or
(b) providing for how a reference to the ASC Law, or to the ASC Regulations, is to be interpreted for the purposes of the laws of that jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 3
Division 3 - Commencement and application

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 2
Commencement

SECT

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


(2) The remaining provisions of this Act shall commence on a day, or respective days, to be fixed by Proclamation. SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 4
Extension to external Territories

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 4
Division 4 - Interpretation

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 5
Interpretation

SECT

5. (1) In this Act, unless the contrary intention appears:
"absent from office", in relation to a holder of an office, means:
(a) absent from duty or from Australia; or
(b) unable, for any reason, to perform the functions of the office;
"Advisory Committee" means the Companies and Securities Advisory Committee established by section 145;
"affairs", in relation to a body corporate, has the same meaning as in section 260 of the Corporations Law;
"assist", in relation to a Commission delegate, means:
(a) to perform functions:
(i) as a member, officer or employee of the Commission
delegate; and
(ii) in connection with the Commission delegate's performance
or exercise of a function or power delegated under section 102; or
(b) to perform services for the Commission delegate in connection with the Commission delegate's performance or exercise of a function or power delegated under section 102;
"Australia" includes any external Territory to which this Act extends;
"books" includes:
(a) a register;
(b) accounts or accounting records, however compiled, recorded or stored;
(c) a document;
(d) banker's books; and
(e) any other record of information;
"Chairperson" means:
(a) except in Part 11 or in relation to the Disciplinary Board - the Chairperson of the Commission; and
(b) in Part 11 or in relation to the Disciplinary Board - the Chairperson of the Disciplinary Board;
"Commission" means the Australian Securities Commission established by section 7;
"Commission delegate" means a person to whom, or a body to which, a function or power is delegated under section 102;
"contravention", in relation to a law, includes an ancillary offence relating to an offence against that law;
"Convenor" means the Convenor of the Advisory Committee;
"Corporations Law" and "Corporations Regulations" have the meaning provided for by Parts 2 and 3 of the Corporations Act 1989;
"court", except in section 248, includes a tribunal having power to require the production of documents or the answering of questions;
"Deputy Chairperson" means the Deputy Chairperson of the Commission;
"Director" means the Director of the Standards Board;
"Disciplinary Board" means the Companies Auditors and Liquidators Disciplinary Board established by section 202;
"eligible employee" has the same meaning as in the Superannuation Act 1976;
"eligible person", in relation to a person, means a person who:
(a) if the first-mentioned person is a body corporate - is or has been an officer of the body within the meaning of a national scheme law or a corresponding previous law; or
(b) in any case:
(i) is or has been an employee, agent, banker, solicitor or
auditor of; or
(ii) is acting, or has acted, in any other capacity on behalf
of;
the first-mentioned person;
"examination" means:
(a) in this section, and Part 3 (other than subsection 27 (2) and Division 9) - an examination of a person pursuant to a requirement made under section 19; or
(b) in subsection 27 (2) and Division 9 of Part 3 - an examination of a person pursuant to a requirement made under section 19 or a corresponding provision of the ASC Law of another jurisdiction;
"expenses", in relation to an investigation under Division 1 of Part 3, includes costs and expenses incurred in relation to a proceeding begun under section 50 as a result of the investigation;
"fail" means refuse or fail;
"foreign country" means:
(a) an external Territory to which this Act does not extend; or
(b) a country outside Australia and the external Territories; or
(c) a part of such a country;
"give" has:
(a) in relation to a document - a meaning affected by section 86; and
(b) in relation to information - a meaning affected by section 6;
"hearing", in this section and Part 3, means a hearing before the Commission and, in sections 52, 54, 55 and 56, includes a part of such a hearing;
"House" means a House of the Parliament;
"information" has a meaning affected by section 6;
"investigate", in relation to the Commission, means investigate in the course of performing or exercising any of the Commission's functions and powers;
"meeting" means:
(a) in Part 4 - a meeting of the Commission;
(b) in Part 9 - a meeting of the Advisory Committee;
(c) in Part 11 - a meeting of the Disciplinary Board; and
(d) in Part 12 - a meeting of the Standards Board;
"member" means:
(a) except in Division 2 of Part 4, in Part 9, 10, 11, 12 or 14, or in relation to a Division, the Advisory Committee, the Panel, the Disciplinary Board, the Standards Board or the Parliamentary Committee - a member of the Commission;
(b) in Part 9 or in relation to the Advisory Committee - a member of the Advisory Committee;
(c) in Part 10 or in relation to the Panel - a member of the Panel;
(d) in Part 11 or in relation to the Disciplinary Board - the Chairperson or any other member of the Disciplinary Board;
(e) in Part 12 or in relation to the Standards Board - the Director or any other member of the Standards Board; and
(f) in Part 14 or in relation to the Parliamentary Committee - a member of the Parliamentary Committee;
"national scheme law" means:
(a) the following:
(i) the Corporations Act 1989;
(ii) the Corporations Law of the Capital Territory;
(iii) this Act; or
(b) a law of another jurisdiction that corresponds to an Act or Law referred to in paragraph (a);
"national scheme law of this jurisdiction" means an Act or Law referred to in paragraph (a) of the definition of "national scheme law" in this subsection;
"non-applied provisions" means the following provisions of this Act:
Part 1 (other than section 6A)
Part 2
Section 88
Divisions 1 and 4 of Part 4
Part 5
Part 6
Division 1 of Part 7
Part 8
Part 9
Division 1 of Part 10
Division 1 of Part 11
Part 12
Part 14
Sections 251 and 252;
"officer", in relation to a body corporate, includes:
(a) a director, secretary, executive officer or employee of the body;
(b) a receiver, or a receiver and manager, of property of the body;
(ba) an administrator of the body;
(bb) an administrator of a deed of company arrangement executed by the body;
(c) an official manager, or a deputy official manager, of the body;
(d) a liquidator, or a provisional liquidator, of the body; and
(e) a trustee or other person administering a compromise or arrangement made between the body and any other person or persons;
"Panel" means the Corporations and Securities Panel established by section 171;
"Parliamentary Committee" means the Parliamentary Joint Committee on Corporations and Securities referred to in section 241;
"penalty unit" means $100;
"power" includes an authority;
"prescribed" means prescribed by this Act or the regulations;
"President" means the President of the Panel;
"proceeding" means:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a tribunal;
whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature;
"produce", except in Part 3, includes permit access to;
"property" means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action and money;
"record", in relation to an examination, means the whole or a part of a record made under section 24 of statements made at the examination;
"regulations" means the ASC Regulations of this jurisdiction;
"report" includes an interim report;
"staff member" means:
(a) a member of the staff referred to in subsection 120 (1) or a person employed under subsection 120 (3);
(b) a person engaged under subsection 121 (1); or
(c) any of the officers, employees and persons who under section 122 are to assist the Commission;
"Standards Board" means the Australian Accounting Standards Board established by section 224;
"statement", in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination;
"superannuation benefits" includes:
(a) benefits in the nature of superannuation benefits; and
(b) benefits similar to benefits provided under the Superannuation Act 1976; and
(c) benefits similar to the benefits provided under the Superannuation Act 1990;
"Territory" means:
(a) the Capital Territory; or
(b) an external Territory to which this Act extends;
"this Act" includes the regulations;
"this Law" includes the regulations;
"tribunal" means:
(a) a tribunal in Australia; or
(b) any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence;
"trust money" means money the Commission receives or holds on trust;
"witness":
(a) in relation to a hearing before the Commission, means a person appearing at the hearing to give evidence; or
(b) in relation to an inquiry before the Panel, means a person appearing at the inquiry to give evidence;
"written record", in relation to an examination, means:
(a) a record of the examination:
(i) that is made in writing; or
(ii) as reduced to writing; or
(b) a part of such a record.


(2) Subject to this Act, an expression has the same meaning in this Act as in the Corporations Law of the Capital Territory.


(3) Except so far as the contrary intention appears in this Act, Parts 1.2 and 1.3 (except section 8) of the Corporations Law apply for the purposes of this Act as if the provisions of this Act were provisions of that Law.


(4) This Part, and Parts 1.2 and 1.3 of the Corporations Law as applying because of subsection (3) of this section, have effect to the exclusion of the Acts Interpretation Act 1901.


(5) Subject to subsection (4), the Acts Interpretation Act 1901 as amended and in force at the commencement of this subsection applies, and that Act as amended and in force at any later time does not apply, in relation to this Act (other than the non-applied provisions).

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 6
Giving information

SECT

6. A reference in this Act to giving information includes a reference to:
(a) explaining or stating a matter;
(b) identifying a person, matter or thing;
(c) disclosing information; or
(d) answering a question.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 6A
Acting appointments

SECT

6A. Where a provision of the ASC Law of this jurisdiction (other than subsection 109ZB (8) of the Corporations Law as it applies because of subsection 5 (3) of the ASC Law) confers on a person or body (in this section called the "appointer") a power to appoint a person (in this section called the "appointee") to act in a particular office, then, except so far as the ASC Law otherwise provides, the following paragraphs apply in relation to an appointment made under the provision:
(a) the appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment;
(b) the appointer may:
(i) determine the terms and conditions of the appointment,
including remuneration and allowances; and
(ii) terminate the appointment at any time;
(ba) in the case of an appointment to act in a vacant office - the appointee must not continue to act in the office for more than 12 months;
(c) where the appointee is acting in an office other than a vacant office and the office becomes vacant while the appointee is acting, then, subject to paragraph (a), the appointee may continue so to act until:
(i) the appointer otherwise directs; or
(ii) the vacancy is filled; or
(iii) a period of 12 months from the day of the vacancy ends;
whichever happens first;
(d) the appointment ceases to have effect if the appointee resigns in writing delivered to the appointer;
(e) while the appointee is acting in the office:
(i) the appointee has and may exercise all the powers, and
shall perform all the functions and duties, of the holder of the office; and
(ii) any law of this jurisdiction applies in relation to the
appointee as if the appointee were the holder of the office.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 6B
Alterations of names and constitutions

SECT

6B. (1) Where:
(a) the name of a body established by this Act is changed by law (whether or not the body is incorporated); or
(b) the name of an office established by this Act is changed by law;
then, unless the contrary intention appears:
(c) the body or office continues in existence under the new name so that its identity is not affected; and
(d) a reference, in:
(i) any Act of this jurisdiction; or
(ii) any instrument under such an Act; or
(iii) any award or other industrial determination or order or
any industrial agreement; or
(iv) any other order (whether executive, judicial or
otherwise); or
(v) any contract; or
(vi) any pleading in, or process issued in connection with, any
legal or other proceeding; or
(vii) any other instrument;
to the body or the office under the former name, except in relation to matters that occurred before the change took place, is taken as a reference to the body or the office under the new name.


(2) Where the constitution of a body established by this Act is changed by law (whether or not the body is incorporated), then, unless the contrary intention appears:
(a) the body continues in existence as newly constituted so that its identity is not affected; and
(b) the alteration does not affect any functions, powers, property, rights, liabilities or obligations of the body; and
(c) the change does not affect any legal or other proceedings instituted or to be instituted by or against the body, and any legal or other proceedings that might have been continued or commenced by or against the body as previously constituted may be continued or commenced by or against the body as newly constituted; and
(d) the change does not affect any investigation or inquiry being or proposed to be undertaken by any tribunal, authority or person into any action taken or practice engaged in by the body before the change took place, and any investigation or inquiry that might have been continued or commenced into any such action or practice may be continued or commenced as if the action had been taken or the practice had been engaged in by the body as newly constituted.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 6C
Presentation of papers to the Parliament

SECT

6C. (1) Where, by this Act, provision is made requiring or permitting the presentation (however expressed) of a paper to the Parliament or to both Houses, or to each or either House, of the Parliament, it is sufficient compliance with the provision, in relation to a House, if:
(a) the paper is presented in that House in accordance with the rules or orders of the House or, if, under the rules or orders of the House, papers are taken to be presented to the House if they are delivered to the Clerk of the House and recorded in the records of the proceedings of the House, the paper is so delivered and recorded; and
(b) where the provision provides for a specified person to present the paper or to cause the paper to be presented - that person, or any other person who could by virtue of this or any other Act, or of a law of a Territory, act in the place of that person, makes or causes to be made, as the case may be, the presentation or the delivery of the paper referred to in paragraph (a); and
(c) where the provision specifies a period within which the paper is to be presented - the presentation, or the delivery and recording, of the paper referred to in paragraph (a) takes place within that period.


(2) For the purposes of a provision of this Act that refers to papers presented (however the presentation is described) to the Parliament or to both Houses, or to each or either House, of the Parliament:
(a) presentation of a paper in a House of the Parliament in accordance with the rules or orders of the House; or
(b) if, under the rules or orders of a House of the Parliament, papers are to be deemed to be presented to the House if they are delivered to the Clerk of the House and recorded in the records of the proceedings of the House - such a delivery and recording of a paper;
is taken to have been presentation of the paper to that House, as described in this Act, effected or caused by the person who so presented or delivered the paper or caused the paper to be so presented or delivered.


(3) In this section, "paper" includes:
(a) an ordinance, rule, regulation or by-law; and
(b) a report; and
(c) any other document or instrument whatever.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 6D
Periodic reports

SECT

6D. (1) In this section:
"periodic report" means a regular report relating to the activities, operations, business or affairs of a body established by this Act.


(2) Where this or any other Act:
(a) requires a body to furnish a periodic report to the Minister; but
(b) does not specify a period within which the report is to be so furnished;
that body must furnish the report to the Minister as soon as practicable after the end of the particular period to which the report relates and, in any event, within 6 months after the end of that particular period.


(3) Where this or any other Act:
(a) requires a body to furnish a periodic report to the Minister for presentation to the Parliament; but
(b) does not specify a period within which the report is to be so presented;
the Minister must cause a copy of the periodic report to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.


(4) Where:
(a) this or any other Act requires a body to furnish a periodic report to the Minister within a specified period; and
(b) the body is of the opinion that it will not be reasonably possible to comply with the requirement;
the body may, within the specified period, apply to the Minister for an extension of the period, and, where the body does so apply, it must give the Minister a statement in writing explaining why, in the body's opinion, it will not be reasonably possible to comply with the requirement.


(5) The Minister may, on application under subsection (4), grant such extension as he or she considers reasonable in the circumstances.


(6) Despite subsection (2) and any other provisions of this Act, where the Minister grants an extension pursuant to an application under subsection (4):
(a) the Minister must cause to be laid before each House of the Parliament, within 3 sitting days of that House after granting the extension, a copy of the statement given under subsection (4) in respect of the application together with a statement specifying the extension granted and the reasons for granting the extension; and
(b) the body that made the application must furnish the periodic report to the Minister within the period as so extended; and
(c) the Minister must cause a copy of the periodic report to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.


(7) Where this or any other Act requires a body to furnish a periodic report to the Minister within a specified period or an extension of that period under this section and the body fails to do so:
(a) the body must, not later than 14 days after the end of that specified period or extension, as the case may be, give the Minister a statement in writing explaining why the report was not furnished as required; and
(b) the Minister must cause a copy of the statement to be laid before each House of the Parliament within 3 sitting days of that House after receiving the statement.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 6E
Liabilities etc. imposed on Commonwealth by other ASC Laws

SECT

6E. (1) Where Part 16 of the ASC Law of another jurisdiction is expressed to transfer liabilities of the NCSC to the Commonwealth, those liabilities become liabilities of the Commonwealth by force of this subsection.


(2) Where Part 16 of the ASC Law of another jurisdiction is expressed to make the Commonwealth a party to pending proceedings, the Commonwealth becomes a party to those proceedings by force of this subsection.


(3) Where Part 16 of the ASC Law of another jurisdiction is expressed to create a right of action against the Commonwealth, that right against the Commonwealth is created by this subsection.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 2
PART 2 - THE COMMISSION AND ITS FUNCTIONS AND POWERS

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 7
Establishment

SECT

7. An Australian Securities Commission is established.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 8
Commission is a body corporate

SECT

8. The Commission:
(a) is a body corporate, with perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 9
Membership

SECT

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


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


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


(3A) Nothing in this Act or any other law prevents a person appointed as a full-time member from holding an appointment as a full-time member of the National Companies and Securities Commission under the National Companies and Securities Commission Act 1979.


(4) The Minister shall nominate a person as a member only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields, namely, business, the administration of companies, the financial markets, law, economics and accounting.


(5) The performance of the functions or the exercise of the powers of the Commission is not affected by reason only that the number of members, or the number of full-time members, is less than 3 unless a continuous period of 3 months has elapsed since the number of members, or the number of full-time members, as the case may be, fell below 3.


(6) For the purposes of subsection (5), an acting member shall be deemed to be a member.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 10
Chairperson and Deputy Chairperson

SECT

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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 11
Functions and powers

SECT

11. (1) The Commission has such functions and powers as are conferred on it by or under the following:
(a) the Corporations Act 1989;
(b) the Corporations Law of the Capital Territory;
(c) this Act.


(1A) The Commission also has the functions and powers expressed to be conferred upon the NCSC by or under:
(a) any Act that is a relevant Act for the purposes of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980; or
(b) any law of a State that corresponds to such an Act.


(1B) In the performance of a function, or the exercise of a power, referred to in paragraph (1A) (a), the Commission is not subject to any directions other than directions given under section 12.


(2) The Commission also has the following functions:
(a) to provide such staff and support facilities to the Panel, the Disciplinary Board and the Review Board as are necessary or desirable for the performance and exercise by the Panel, the Disciplinary Board and the Review Board of their respective functions and powers;
(b) to advise the Minister about any changes to a national scheme law that, in the Commission's opinion, are needed to overcome, or would assist in overcoming, any problems that the Commission has encountered in the course of performing or exercising any of its functions and powers.


(3) The Commission may, on its own initiative or when requested by the Minister, advise the Minister, and make to the Minister such recommendations as it thinks fit, about any matter of a kind referred to in section 148.


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


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


(7) The Commission has any functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction.


(8) The Commission may, with the consent of the Minister, enter into an agreement or arrangement with a State or Territory for the performance of functions or the exercise of powers by the Commission as an agent of the State or Territory.


(9) The Commission has such functions and powers as are referred to in such an agreement or arrangement.


(10) The Commission has power to do acts in the Capital Territory in the performance or exercise of any function or power:
(a) expressed to be conferred on the Commission by a national scheme law of another jurisdiction; or
(b) referred to in an agreement or arrangement of the kind referred to in subsection (8).

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 12
Directions by Minister

SECT

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


(2) The Minister shall not give a direction under subsection (1) unless he or she has:
(a) notified the Commission in writing that he or she is considering giving the direction; and
(b) given the Chairperson an adequate opportunity to discuss with the Minister the need for the proposed direction.


(3) The Minister shall not give a direction under subsection (1) about a particular case.


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


(5) The Minister shall cause a copy of an instrument under subsection (1):
(a) to be published in the Gazette within 21 days after the instrument is made; and
(b) to be laid before each House of the Parliament within 15 sitting days of that House after the publication;
but failure of the Minister to do so does not affect the instrument's validity.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 3
PART 3 - INVESTIGATIONS AND INFORMATION-GATHERING

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - Investigations

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 13
General powers of investigation

SECT

13. (1) The Commission may make such investigation as it thinks expedient for the due administration of a national scheme law of this jurisdiction where it has reason to suspect that there may have been committed:
(a) a contravention of a national scheme law; or
(b) a contravention of a law of the Commonwealth or of a State or Territory, being a contravention that:
(i) concerns the management or affairs of a body corporate; or
(ii) involves fraud or dishonesty and relates to a body
corporate, securities or futures contracts.


(2) Where the Commission has reason to suspect that unacceptable circumstances within the meaning of Part 6.9 of the Corporations Law of this jurisdiction have, or may have, occurred, the Commission may make such investigation as it thinks expedient:
(a) for the purposes of determining whether or not to make an application under subsection 733 (1) or 734 (2) of that Law; or
(b) otherwise for the due administration of a national scheme law.


(3) Where the Commission has reason to suspect that a contravention of a relevant previous law of this jurisdiction may have been committed, the Commission may make such investigation as it thinks appropriate.


(4) Neither of subsections (1) and (3) limits the generality of the other.


(5) Where:
(a) immediately before the commencement of this subsection, the NCSC was investigating a matter under a relevant previous law of this jurisdiction; and
(b) either or both of subsections (1) and (3) empower the Commission to investigate that matter;
then:
(c) the Commission may continue the NCSC's investigation of that matter; and
(d) the investigation, as continued by the Commission, is taken to be an investigation under that subsection, or each of those subsections, as the case may be.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 14
Minister may direct investigations

SECT

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


(2) This subsection applies to a matter relating to any of the following, whether occurring, or alleged to have occurred, within this jurisdiction or elsewhere:
(a) an alleged or suspected contravention of a national scheme law or of a relevant previous law of a jurisdiction;
(b) an alleged or suspected contravention of a law of the Commonwealth or of a State or Territory, being a contravention that:
(i) concerns the management or affairs of a body corporate; or
(ii) involves fraud or dishonesty and relates to a body
corporate, securities or futures contracts;
(c) the affairs, or particular affairs, of a corporation;
(d) dealing in securities;
(e) dealing in futures contracts;
(f) the establishment or conducting of a stock market or futures market;
(g) the provision of clearing house facilities for a futures market;
(j) the giving of advice, analyses or reports about securities or futures contracts.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 14A
Directions under relevant previous laws

SECT

14A. (1) This section applies where, immediately before the commencement of this section:
(a) a direction was in force under:
(i) subsection 290 (4) or 291 (1), (2) or (3) of the relevant
previous law of this jurisdiction relating to the formation of companies; or
(ii) subsection 16 (1), (2) or (3) of the relevant previous law
of this jurisdiction relating to the securities industry; or
(iii) subsection 22 (1), (2) or (3) of the relevant previous
law of this jurisdiction relating to the futures industry; and
(b) no investigation pursuant to the direction had yet begun, or such an investigation had begun but had not yet been completed or terminated.


(2) The direction has effect:
(a) with such modifications (if any) as are specified, in relation to the direction, in an application order; and
(b) with such other modifications (if any) as the circumstances require;
as if it were a direction to the Commission under subsection 14 (1).


(3) If, immediately before that commencement, an investigation was being carried out pursuant to the direction:
(a) the Commission must comply with the direction, as it has effect because of subsection (2), by continuing the investigation in accordance with the direction as it so has effect; and
(b) the investigation, as continued by the Commission, is taken to be an investigation under section 14.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 15
Investigation after report of receiver or liquidator

SECT

15. Where a report has been lodged under section 422 or 533 of the Corporations Law or under a previous law corresponding to section 422 or 533 of that Law, the Commission may investigate a matter to which the report relates for the purpose of determining whether or not a person ought to be prosecuted for an offence against a national scheme law of this jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 16
Interim report on investigation

SECT

16. (1) Where, in the course of an investigation under this Division, the Commission forms the opinion that:
(a) a serious contravention of a law of the Commonwealth or a State or Territory has been committed;
(b) to prepare an interim report about the investigation would enable or assist the protection, preservation or prompt recovery of property; or
(c) there is an urgent need for a national scheme law to be amended;
it shall prepare an interim report that relates to the investigation and sets out:
(d) if paragraph (a) applies - its findings about the contravention, and the evidence and other material on which those findings are based;
(e) if paragraph (b) applies - such matters as, in its opinion, will so enable or assist; or
(f) if paragraph (c) applies - its opinion about amendment of that law, and its reasons for that opinion;
and such other matters relating to, or arising out of, the investigation as it thinks fit.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 17
Final report on investigation

SECT

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


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


(3) A report under this section shall set out:
(a) the Commission's findings about the matters investigated;
(b) the evidence and other material on which those findings are based; and
(c) such other matters relating to, or arising out of, the investigation as the Commission thinks fit or the Minister directs.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 18
Distribution of report

SECT

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


(2) Where a report, or part of a report, under this Division relates to a serious contravention of a law of the Commonwealth or of a State or Territory, the Commission may give a copy of the whole or a part of the report to:
(a) the Australian Federal Police;
(b) the National Crime Authority;
(c) the Director of Public Prosecutions; or
(d) a prescribed agency.


(3) Where a report, or part of a report, under this Division relates to a person's affairs to a material extent, the Commission may, at the person's request or of its own motion, give to the person a copy of the report or of part of the report.


(4) The Minister may cause the whole or a part of a report under this Division to be printed and published.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Examination of persons

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 19
Notice requiring appearance for examination

SECT

19. (1) This section applies where the Commission, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1.


(2) The Commission may, by written notice in the prescribed form given to the person, require the person:
(a) to give to the Commission all reasonable assistance in connection with the investigation; and
(b) to appear before a specified member or staff member for examination on oath and to answer questions.


(3) A notice given under subsection (2) shall:
(a) state the general nature of the matter referred to in subsection (1); and
(b) set out the effect of subsection 23 (1) and section 68.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 20
Proceedings at examination

SECT

20. The remaining provisions of this Division apply where, pursuant to a requirement made under section 19 for the purposes of an investigation under Division 1, a person (in this Division called the "examinee") appears before another person (in this Division called the "inspector") for examination.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 21
Requirements made of examinee

SECT

21. (1) The inspector may examine the examinee on oath or affirmation and may, for that purpose:
(a) require the examinee to either take an oath or make an affirmation; and
(b) administer an oath or affirmation to the examinee.


(2) The oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true.


(3) The inspector may require the examinee to answer a question that is put to the examinee at the examination and is relevant to a matter that the Commission is investigating, or is to investigate, under Division 1.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 22
Examination to take place in private

SECT

22. (1) The examination shall take place in private and the inspector may give directions about who may be present during it, or during a part of it.


(2) A person shall not be present at the examination unless he or she:
(a) is the inspector, the examinee or a member;
(b) is a staff member approved by the Commission; or
(c) is entitled to be present by virtue of:
(i) a direction under subsection (1); or
(ii) subsection 23 (1).
Penalty: 10 penalty units or imprisonment for 3 months, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 23
Examinee's lawyer may attend

SECT

23. (1) The examinee's lawyer may be present at the examination and may, at such times during it as the inspector determines:
(a) address the inspector; and
(b) examine the examinee;
about matters about which the inspector has examined the examinee.


(2) If, in the inspector's opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the inspector may require the person to stop addressing the inspector, or examining the examinee, as the case requires.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 24
Record of examination

SECT

24. (1) The inspector may, and shall if the examinee so requests, cause a record to be made of statements made at the examination.


(2) If a record made under subsection (1) is in writing or is reduced to writing:
(a) the inspector may require the examinee to read it, or to have it read to him or her, and may require him or her to sign it; and
(b) the inspector shall, if requested in writing by the examinee to give to the examinee a copy of the written record, comply with the request without charge but subject to such conditions (if any) as the inspector imposes.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 25
Giving to other persons copies of record

SECT

25. (1) The Commission may give a copy of a written record of the examination, or such a copy together with a copy of any related book, to a person's lawyer if the lawyer satisfies the Commission that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related.


(2) If the Commission gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, shall not, except in connection with preparing, beginning or carrying on, or in the course of, a proceeding:
(a) use the copy or a copy of it; or
(b) publish, or communicate to a person, the copy, a copy of it, or any part of the copy's contents.
Penalty: 10 penalty units or imprisonment for 3 months, or both.


(3) The Commission may, subject to such conditions (if any) as it imposes, give to a person a copy of a written record of the examination, or such a copy together with a copy of any related book.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 26
Copies given subject to conditions

SECT

26. If a copy is given to a person under subsection 24 (2) or 25 (3) subject to conditions, the person, and any other person who has possession, custody or control of the copy or a copy of it, shall comply with the conditions.
Penalty: 10 penalty units or imprisonment for 3 months, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 27
Record to accompany report

SECT

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


(2) If:
(a) in the Commission's opinion, a statement made at an examination is relevant to any other investigation under Division 1;
(b) a record of the statement was made under section 24; and
(c) a report about the other investigation is prepared under section 17;
a copy of the record shall accompany the report.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 3
Division 3 - Inspection of books

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 28
When certain powers may be exercised

SECT

28. A power conferred by this Division (other than sections 29, 35 and 36) may only be exercised:
(a) for the purposes of the performance or exercise of any of the Commission's functions and powers under a national scheme law of this jurisdiction; or
(b) for the purposes of ensuring compliance with a national scheme law of this jurisdiction; or
(c) in relation to:
(i) an alleged or suspected contravention of a national scheme
law of this jurisdiction; or
(ii) an alleged or suspected contravention of a law of this
jurisdiction, being a contravention that concerns the management or affairs of a body corporate, or involves fraud or dishonesty and relates to a body corporate, securities or futures contracts; or
(d) for the purposes of an investigation under Division 1.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 29
Commission may inspect books without charge

SECT

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


(2) A person authorised under this section may require a person in whose possession the book is to make the book available for inspection by the first-mentioned person.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 30
Notice to produce books about affairs of body corporate

SECT

30. The Commission may give to:
(a) a body corporate that is not an exempt public authority; or
(b) an eligible person in relation to such a body corporate;
a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to affairs of the body.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 31
Notice to produce books about securities

SECT

31. (1) The Commission may give to:
(a) a securities exchange;
(b) a member of the board of a securities exchange;
(c) a person who is or has been (either alone or together with any other person or persons) a dealer, an investment adviser or a securities representative of a person;
(d) a nominee controlled by a person of a kind referred to in paragraph (c) or jointly controlled by 2 or more persons at least one of whom is such a person;
(e) an eligible person in relation to a person of a kind referred to in paragraph (a), (b), (c) or (d); or
(f) any other person who, in the Commission's opinion, has been a party to a dealing in securities;
a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to:
(g) the business or affairs of a securities exchange;
(h) a dealing in securities;
(j) advice given, or an analysis or report issued or published, about securities;
(k) the character or financial position of, or a business carried on by, a person of a kind referred to in paragraph (c) or (d); or
(m) an audit of, or a report of an auditor about, a dealing in securities or accounts or records of a dealer or investment adviser.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 32
Notice to produce books about futures contracts

SECT

32. (1) The Commission may give to:
(a) a futures exchange;
(b) a clearing house for a futures market;
(c) a futures association;
(d) a member of the board of a body corporate that is a futures exchange, a clearing house for a futures market, or a futures association;
(e) a person who is or has been (either alone or together with any other person or persons) a futures broker, a futures adviser or a futures representative of a person;
(f) a nominee controlled by a person of a kind referred to in paragraph (e) or jointly controlled by 2 or more persons at least one of whom is such a person;
(g) an eligible person in relation to a person of a kind referred to in a preceding paragraph; or
(h) any other person who, in the Commission's opinion, has been a party to a dealing in a futures contract;
a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to:
(j) the business or affairs of a futures exchange, of a clearing house for a futures market, or of a futures association;
(k) a dealing in a futures contract;
(m) advice given, or an analysis or report issued or published, about futures contracts;
(n) the character or financial position of, or a business carried on by, a person referred to in paragraph (e) or (f); or
(p) an audit of, or a report of an auditor about, a dealing in a futures contract or accounts or records of a futures broker or futures adviser.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 33
Notice to produce documents in person's possession

SECT

33. The Commission may give to a person a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books that are in the first-mentioned person's possession and relate to:
(a) affairs of a body corporate; or
(b) a matter referred to in any of paragraphs 31 (1) (g) to (m), inclusive, and 32 (1) (j) to (p), inclusive.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 34
Commission may authorise persons to require production of books

SECT

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


(2) An authorisation under this section may be of general application or may be limited by reference to either or both of the following:
(a) the persons of whom requirements may be made;
(b) the books production of which may be required.


(3) Where an authorisation of a person is in force under this section, the person may make a requirement in accordance with the authorisation as if, in sections 30, 31, 32 and 33:
(a) a reference to the Commission were a reference to the person;
(b) a reference to specified books were a reference to books that the person specifies, whether in the requirement or not and whether orally or in writing, to the person of whom the requirement is made; and
(c) a reference to production to a specified person were a reference to production to the first-mentioned person.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 35
Application for warrant to seize books not produced

SECT

35. (1) Where a member or staff member has reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises within this jurisdiction, books:
(a) whose production has been required under this Division or a corresponding law of another jurisdiction; and
(b) that have not been produced in compliance with that requirement;
he or she may:
(c) lay before a magistrate an information on oath setting out those grounds; and
(d) apply for the issue of a warrant to search the premises for those books.


(2) On an application under this section, the magistrate may require further information to be given, either orally or by affidavit, in connection with the application.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 36
Grant of warrant

SECT

36. (1) This section applies where, on an application under section 35, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, particular books:
(a) whose production has been required under this Division or a corresponding law of another jurisdiction; and
(b) that have not been produced in compliance with that requirement.


(2) The magistrate may issue a warrant authorising a member of the Australian Federal Police, whether or not named in the warrant, together with any person so named, with such assistance, and by such force, as is necessary and reasonable:
(a) to enter on or into the premises;
(b) to search the premises;
(c) to break open and search anything, whether a fixture or not, in or on the premises; and
(d) to take possession of, or secure against interference, books that appear to be any or all of those books.


(3) If the magistrate issues such a warrant, he or she shall set out on the information laid before him or her under subsection 35 (2) for the purposes of the application:
(a) which of the grounds set out in the information; and
(b) particulars of any other grounds;
he or she has relied on to justify the issue of the warrant.


(4) A warrant under this section shall:
(a) specify the premises and books referred to in subsection (1);
(b) state whether entry is authorised to be made at any time of the day or night or only during specified hours; and
(c) state that the warrant ceases to have effect on a specified day that is not more than 7 days after the day of issue of the warrant.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 37
Powers where books produced or seized

SECT

37. (1) This section applies where:
(a) books are produced to a person under a requirement made under this Division;
(b) under a warrant issued under section 36, a person:
(i) takes possession of books; or
(ii) secures books against interference; or
(c) by virtue of a previous application of subsection (8) of this section, books are delivered into a person's possession.


(2) If paragraph (1) (a) applies, the person may take possession of any of the books.


(3) The person may inspect, and may make copies of, or take extracts from, any of the books.


(4) The person may use, or permit the use of, any of the books for the purposes of a proceeding.


(5) The person may retain possession of any of the books for so long as is necessary:
(a) for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7));
(b) for any of the purposes referred to in paragraphs 28 (a), (b) and (d);
(c) for a decision to be made about whether or not a proceeding to which the books concerned would be relevant should be begun; or
(d) for such a proceeding to be begun and carried on.


(6) No-one is entitled, as against the person, to claim a lien on any of the books, but such a lien is not otherwise prejudiced.


(7) While the books are in the person's possession, the person:
(a) shall permit another person to inspect at all reasonable times such (if any) of the books as the other person would be entitled to inspect if they were not in the first-mentioned person's possession; and
(b) may permit another person to inspect any of the books.


(8) Unless subparagraph (1) (b) (ii) applies, the person may deliver any of the books into the possession of the Commission or of a person authorised by it to receive them.


(9) If paragraph (1) (a) or (b) applies, the person, or a person into whose possession the person delivers any of the books under subsection (8), may require:
(a) if paragraph (1) (a) applies - a person who so produced any of the books; or
(b) in any case - a person who was a party to the compilation of any of the books;
to explain to the best of his or her knowledge and belief any matter about the compilation of any of the books or to which any of the books relate.


(10) In this section:
"proceeding" includes a proceeding under a law of another jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 38
Powers where books not produced

SECT

38. Where a person fails to produce particular books in compliance with a requirement made by another person under this Division, the other person may require the first-mentioned person to state, to the best of his or her knowledge and belief:
(a) where the books may be found; and
(b) who last had possession, custody or control of the books and where that person may be found.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 39
Power to require person to identify property of body corporate

SECT

39. A person who has power under this Division to require another person to produce books relating to affairs of a body corporate may, whether or not that power is exercised, require the other person, so far as the other person can do so:
(a) to identify property of the body; and
(b) to explain how the body has kept account of that property.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 4
Division 4 - Requirements to disclose information about
securities or futures contracts

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 40
When certain powers may be exercised

SECT

40. A power conferred by section 41 or 44 may only be exercised:
(a) for the purposes of the performance or exercise of any of the Commission's functions and powers under a national scheme law of this jurisdiction; or
(b) for the purposes of ensuring compliance with a national scheme law of this jurisdiction; or
(c) in relation to:
(i) an alleged or suspected contravention of a national scheme
law of this jurisdiction; or
(ii) an alleged or suspected contravention of a law of this
jurisdiction, being a contravention that concerns the management or affairs of a body corporate, or involves fraud or dishonesty and relates to a body corporate, securities or futures contracts; or
(d) for the purposes of an investigation under Division 1.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 41
Acquisitions and disposals of securities

SECT

41. (1) The Commission may require a dealer to disclose to it, in relation to an acquisition or disposal of securities:
(a) the name of the person from or through whom, or on whose behalf, the securities were acquired; or
(b) the name of the person to or through whom, or on whose behalf, the securities were disposed of;
as the case may be, and the nature of the instructions given to the dealer in relation to the acquisition or disposal.


(2) The Commission may require a person to disclose to it, in relation to an acquisition or disposal of securities by the person, whether or not the person acquired or disposed of the securities as trustee for, or for or on behalf of, another person, and, if so:
(a) the name of the other person; and
(b) the nature of any instructions given to the first-mentioned person in relation to the acquisition or disposal.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 43
Exercise of certain powers of the Commission in relation to securities

SECT

43. (1) This section applies where the Commission considers that:
(a) it may be necessary to exercise, in relation to securities of a body corporate, a power under section 775 of the Corporations Law of this jurisdiction;
(b) a contravention of section 845, or Division 2 of Part 7.11, of the Corporations Law of this jurisdiction may have been committed in relation to securities of a body corporate;
(c) a contravention of Part 6.7 or 6.8 of the Corporations Law of this jurisdiction may have been committed in relation to shares in a body corporate;
(d) a contravention of a law of this jurisdiction may have been committed, being a contravention that involves fraud or dishonesty and relates to securities of a body corporate;
(e) unacceptable circumstances within the meaning of Part 6.9 of the Corporations Law of this jurisdiction have, or may have, occurred:
(i) in relation to an acquisition of shares in a body
corporate; or
(ii) as a result of conduct engaged in by a person in relation
to shares in, or the affairs of, a body corporate; or
(f) a person has, or may have, contravened subsection 734 (5) of the Corporations Law of this jurisdiction.


(2) The Commission may require a director, secretary or executive officer of the body to disclose to the Commission information of which he or she is aware and that:
(a) may have affected a dealing that has taken place; or
(b) may affect a dealing that may take place;
in securities of the body.


(3) If the Commission believes on reasonable grounds that a person can give, information about particular matters, being any or all of the following:
(a) a dealing in securities of the body;
(b) advice, or an analysis or report, that a dealer, an investment adviser, or a securities representative of a person, has given, issued or published about such securities;
(c) the financial position of a business carried on by a person who:
(i) is or has been (either alone or together with any other
person or persons) a dealer or investment adviser; and
(ii) has dealt in, has given advice about, or has issued or
published an analysis or report about, such securities;
(d) the financial position of a business carried on by a nominee controlled by a person of a kind referred to in paragraph (c) or jointly controlled by 2 or more persons at least one of whom is such a person;
(e) an audit of, or a report of an auditor about, accounts or records of a dealer or investment adviser, being accounts or records relating to dealings in such securities;
the Commission may require the person to disclose to it the information that the person has about those particular matters.


(4) The Commission shall not exercise a power conferred by subsection (2) or (3) except:
(a) if paragraph (1) (a) applies - for the purpose of determining whether or not to exercise a power as mentioned in that paragraph;
(b) if paragraph (1) (b), (c) or (d) applies - for the purpose of investigating the possible contravention; or
(c) if paragraph (1) (e) or (f) applies - for the purpose of determining whether or not to make an application under subsection 733 (1) or 734 (2), or section 736, as the case may be, of the Corporations Law.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 44
Dealings in futures contracts

SECT

44. (1) The Commission may require a futures broker to disclose to it, in relation to a dealing by the futures broker in a futures contract, whether or not the dealing was effected on another person's behalf, and, if so:
(a) the name of the other person; and
(b) the nature of the instructions given to the futures broker in relation to the dealing.


(2) The Commission may require a person to disclose to it, in relation to a dealing in a futures contract effected on the person's instructions, whether or not the person gave the instructions as trustee for, or for or on behalf of, another person, and, if so:
(a) the name of the other person; and
(b) the nature of any instructions given to the first-mentioned person in relation to the dealing.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 46
Exercise of certain powers of Commission in relation to futures
contracts

SECT

46. (1) The Commission shall not exercise a power conferred by this section except:
(a) where it considers that it may be necessary to give a direction under section 1138 of the Corporations Law of this jurisdiction - for the purpose of determining whether or not to give such a direction; or
(b) where it considers that there may have been committed:
(i) a contravention of Part 8.7 (other than sections 1258 and
1267) of the Corporations Law of this jurisdiction; or
(ii) a contravention of a law of this jurisdiction, being a
contravention that involves fraud or dishonesty and relates to futures contracts;
for the purpose of investigating the possible contravention.


(2) Where the Commission believes on reasonable grounds that a person can give information about particular matters, being any or all of the following:
(a) a dealing in futures contracts;
(b) advice, or an analysis or report, that a futures broker, a futures adviser, or a futures representative of a person, has given, issued or published about futures contracts;
(c) the financial position of a business carried on by a person who is or has been (either alone or together with any other person or persons) a futures broker or futures adviser;
(d) the financial position of a business carried on by a nominee controlled by a person of a kind referred to in paragraph (c) or jointly controlled by 2 or more persons at least one of whom is such a person;
(e) an audit of, or a report of an auditor about, accounts or records of a futures broker or futures adviser, being accounts or records relating to dealings in futures contracts;
the Commission may require the person to disclose to it the information that the person has about those particular matters.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 47
Disclosures to take place in private

SECT

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


(2) A person shall not be present during a disclosure unless he or she:
(a) is a member;
(b) is a staff member approved by the Commission; or
(c) is entitled to be present by virtue of:
(i) a direction under subsection (1); or
(ii) subsection 48 (1).
Penalty: 10 penalty units or imprisonment for 3 months, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 48
Lawyer of person making disclosure may attend

SECT

48. (1) The lawyer of a person making a disclosure to the Commission pursuant to a requirement made under this Division may be present during the disclosure and may, at such times during it as the representative of the Commission presiding at the meeting during which the disclosure is made determines, address the representatives of the Commission about the disclosure.


(2) If, in the presiding representative's opinion, a person is trying to obstruct the disclosure by exercising rights under subsection (1), the presiding representative may require the person to stop addressing the representatives of the Commission.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 5
Division 5 - Proceedings after an investigation

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 49
Commission may cause prosecution to be begun

SECT

49. (1) This section applies where:
(a) as a result of an investigation; or
(b) from a record of an examination;
conducted under this Part or a corresponding law, it appears to the Commission that a person:
(c) may have committed an offence against a national scheme law, or a relevant previous law, of this jurisdiction; and
(d) ought to be prosecuted for the offence.


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


(3) If:
(a) the Commission, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or
(b) the offence relates to matters being, or connected with, affairs of a body corporate, or to matters including such matters;
the Commission may, whether before or after a prosecution for the offence is begun, by writing given to the person, or to an eligible person in relation to the body, as the case may be, require the person or eligible person to give all reasonable assistance in connection with such a prosecution.


(4) Subsection (3) does not apply in relation to:
(a) the person referred to in subsection (1); or
(b) a person who is or has been that person's lawyer.


(5) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983 or that Act as it applies as a law of this jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 50
Commission may cause civil proceeding to be begun

SECT

50. Where, as a result of an investigation or from a record of an examination (being an investigation or examination conducted under this Part or a corresponding law), it appears to the Commission to be in the public interest for a person to begin and carry on a proceeding for:
(a) the recovery of damages for fraud, negligence, default, breach of duty, or other misconduct, committed in connection with a matter to which the investigation or examination related; or
(b) recovery of property of the person;
the Commission:
(c) if the person is a company - may cause; or
(d) otherwise - may, with the person's written consent, cause;
such a proceeding to be begun and carried on in the person's name.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 6
Division 6 - Hearings

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 51
Power to hold hearings

SECT

51. (1) The Commission may hold hearings for the purposes of the performance or exercise of any of its functions and powers under a national scheme law of this jurisdiction, other than a function or power conferred on it by Division 1 of this Part or by section 733, 734 or 736 of the Corporations Law.


(2) Where:
(a) immediately before the commencement of this section, the NCSC was holding a hearing, under a relevant previous law of this jurisdiction, in relation to a matter; and
(b) subsection (1) empowers the Commission to hold a hearing in relation to that matter;
then:
(c) the Commission may continue the NCSC's hearing, so far as it relates to that matter; and
(d) the hearing, as continued by the Commission, is taken to be a hearing under subsection (1).

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 52
General discretion to hold hearing in public or private

SECT

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


(2) In exercising its discretion under subsection (1), the Commission shall have regard to:
(a) whether evidence that may be given, or a matter that may arise, during the hearing is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence;
(b) any unfair prejudice to a person's reputation that would be likely to be caused if the hearing took place in public;
(c) whether it is in the public interest that the hearing take place in public; and
(d) any other relevant matter.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 53
Request by person appearing at hearing that it take place in public

SECT

53. (1) Subject to section 54, where:
(a) a national scheme law of this jurisdiction requires the Commission to give a person an opportunity to appear at a hearing; and
(b) the person requests that the hearing or part of the hearing take place in public;
the hearing or part shall take place in public.


(2) Despite subsection (1), where the Commission is satisfied, having regard to the matters referred to in subsection 52 (2), that it is desirable that a hearing or part of a hearing take place in private, it may direct that the hearing or part take place in private.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 54
Certain hearings to take place in private

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 55
Commission may restrict publication of certain material

SECT

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


(2) In determining whether or not to give a direction under subsection (1), the Commission shall have regard to:
(a) whether evidence that has been or may be given, or a matter that has arisen or may arise, during the hearing is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against an Australian law;
(b) any unfair prejudice to a person's reputation that would be likely to be caused unless the Commission exercises its powers under this section;
(c) whether it is in the public interest that the Commission exercises its powers under this section; and
(d) any other relevant matter.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 56
Who may be present when hearing takes place in private

SECT

56. (1) The Commission may give directions about who may be present during a hearing that is to take place in private.


(2) A direction under subsection (1) does not prevent:
(a) a person whom a national scheme law of this jurisdiction requires to be given the opportunity to appear at a hearing; or
(b) a person representing under section 59:
(i) a person of a kind referred to in paragraph (a) of this
subsection; or
(ii) a person who, by virtue of such a direction, is entitled
to be present at a hearing;
from being present during the hearing.


(3) Where the Commission directs that a hearing take place in private, a person shall not be present at the hearing unless he or she:
(a) is a member;
(b) is a staff member approved by the Commission; or
(c) is entitled to be present by virtue of:
(i) a direction under subsection (1); or
(ii) subsection (2).
Penalty: 10 penalty units or imprisonment for 3 months.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 57
Involvement of person entitled to appear at hearing

SECT

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


(2) The Commission shall appoint a place and time for the hearing and cause written notice of that place and time to be given to the person.


(3) If the person does not wish to appear at the hearing, the person may, before the day of the hearing, lodge with the Commission any written submissions that the person wishes the Commission to take into account in relation to the matter concerned.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 58
Power to summon witnesses and take evidence

SECT

58. (1) A member may, by written summons in the prescribed form given to a person:
(a) require the person to appear before the Commission at a hearing to give evidence, to produce specified documents, or to do both; and
(b) require the person to attend from day to day unless excused, or released from further attendance, by a member.


(2) At a hearing, the Commission may take evidence on oath or affirmation, and for that purpose a member may:
(a) require a witness at the hearing to either take an oath or make an affirmation; and
(b) administer an oath or affirmation to a witness at the hearing.


(3) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.


(4) The member presiding at a hearing:
(a) may require a witness at the hearing to answer a question put to the witness; and
(b) may require a person appearing at the hearing pursuant to a summons issued under this section to produce a document specified in the summons.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 59
Proceedings at hearings

SECT

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


(2) At a hearing, the Commission:
(a) is not bound by the rules of evidence;
(b) may, on such conditions as it thinks fit, permit a person to intervene; and
(c) shall observe the rules of natural justice.


(3) Subject to subsection (4), Division 4 of Part 4 (other than section 104) applies, so far as practicable, in relation to a hearing as if the hearing were a meeting of the Commission.


(4) At a hearing before a Division of the Commission, 2 members of the Division form a quorum.


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


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


(7) An unincorporated association, or a person in the person's capacity as a member of an unincorporated association, may be represented at a hearing by a member or officer of the association approved by the Commission.


(8) Any person may be represented at a hearing by a barrister or solicitor of the Supreme Court of a State or Territory or of the High Court.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 60
Commission to take account of evidence and submissions

SECT

60. The Commission shall take into account:
(a) evidence given, or a submission made, to it at a hearing; or
(b) a submission lodged with it under section 57;
in making a decision on a matter to which the evidence or submission relates.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 61
Reference to Court of question of law arising at hearing

SECT

61. (1) The Commission may, of its own motion or at a person's request, refer to the Court for decision a question of law arising at a hearing.


(3) Where a question has been referred under subsection (1), the Commission shall not, in relation to a matter to which the hearing relates:
(a) give while the reference is pending a decision to which the question is relevant; or
(b) proceed in a manner, or make a decision, that is inconsistent with the Court's opinion on the question.


(4) Where a question is referred under subsection (1):
(a) the Commission shall send to the Court all documents that were before the Commission in connection with the hearing; and
(b) at the end of the proceeding in the Court in relation to the reference, the Court shall cause the documents to be returned to the Commission.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 62
Protection of members etc.

SECT

62. (1) A member has, in the performance or exercise of any of his or her functions and powers as a member in relation to a hearing, the same protection and immunity as a Justice of the High Court.


(1A) A delegate of a member has, in the performance or exercise of any delegated function or power in relation to a hearing, the same protection and immunity as a Justice of the High Court.


(2) A barrister, solicitor or other person appearing on a person's behalf at a hearing has the same protection and immunity as a barrister has in appearing for a party in a proceeding in the High Court.


(3) Subject to this Law, a person who is required by a summons under section 58 to appear at a hearing, or a witness at a hearing, has the same protection as a witness in a proceeding in the High Court.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 7
Division 7 - Offences

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 63
Non-compliance with requirements made under this Part

SECT

63. (1) A person shall not, without reasonable excuse, fail to comply with a requirement made under section 19, subsection 21 (3), section 30, 31, 32, 33 or 34, subsection 37 (9) or section 38 or 39.
Penalty: 100 penalty units or imprisonment for 2 years, or both.


(2) A person shall not, without reasonable excuse, fail to comply with a requirement made under section 41, 42, 43, 44, 45 or 46.
Penalty: 50 penalty units or imprisonment for 12 months, or both.


(3) A person shall not, without reasonable excuse, fail to comply with a requirement made under subsection 21 (1) or 29 (2), paragraph 24 (2) (a) or subsection 49 (3) or 58 (1), (2) or (4).
Penalty: 10 penalty units or imprisonment for 3 months, or both.


(4) A person shall comply with a requirement made under subsection 23 (2) or 48 (2).
Penalty: 5 penalty units.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 64
False information

SECT

64. (1) A person shall not:
(a) in purported compliance with a requirement made under this Part; or
(b) in the course of an examination of the person;
give information, or make a statement, that is false or misleading in a material particular.
Penalty: 100 penalty units or imprisonment for 2 years, or both.


(2) A person shall not, at a hearing, give evidence that is false or misleading in a material particular.
Penalty: 10 penalty units or imprisonment for 3 months, or both.


(3) It is a defence to a prosecution for a contravention of subsection (1) or (2) if it is proved that the defendant, when giving the information or evidence or making the statement, believed on reasonable grounds that it was true and not misleading.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 65
Obstructing person acting under this Part

SECT

65. (1) A person shall not, without reasonable excuse:
(a) obstruct or hinder a person in the exercise of a power under this Part; or
(b) obstruct or hinder a person who is executing a warrant issued under section 36.
Penalty: 100 penalty units or imprisonment for 2 years, or both.


(2) The occupier, or person in charge, of premises that a person enters under a warrant issued under section 36 shall provide to that person all reasonable facilities and assistance for the effective exercise of his or her powers under the warrant.
Penalty: 25 penalty units or imprisonment for 6 months, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 66
Contempt of Commission

SECT

66. (1) A person shall not:
(a) obstruct or hinder the Commission or a member in the performance or exercise of any of the Commission's functions and powers; or
(b) disrupt a hearing.
Penalty: 50 penalty units or imprisonment for 1 year, or both.


(2) A person shall not, without reasonable excuse, contravene a direction given under subsection 55 (1).
Penalty: 50 penalty units or imprisonment for 1 year, or both.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 67
Concealing books relevant to investigation

SECT

67. (1) Where the Commission is investigating, or is about to investigate, a matter, a person shall not:
(a) in any case - conceal, destroy, mutilate or alter a book relating to that matter; or
(b) if a book relating to that matter is in a particular State or Territory - take or send the book out of that State or Territory or out of Australia.
Penalty: 200 penalty units or imprisonment for 5 years, or both.


(2) It is a defence to a prosecution for a contravention of subsection (1) if it is proved that the defendant intended neither to defeat the purposes of a national scheme law of this jurisdiction nor to delay or obstruct an investigation, or a proposed investigation, by the Commission.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 68
Self-incrimination

SECT

68. (1) For the purposes of this Part, of Division 3 of Part 10, and of Division 2 of Part 11, it is not a reasonable excuse for a person to refuse or fail:
(a) to give information;
(b) to sign a record; or
(c) to produce a book;
in accordance with a requirement made of the person, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the person or make the person liable to a penalty.


(2) Subsection (3) applies where:
(a) before:
(i) making an oral statement giving information; or
(ii) signing a record;
pursuant to a requirement made under this Part, Division 3 of Part 10 or Division 2 of Part 11, or under a corresponding law of another jurisdiction, a person (other than a body corporate) claims that the statement, or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and
(b) the statement, or signing the record, as the case may be, might in fact tend to incriminate the person or make the person so liable.


(3) The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in:
(a) a criminal proceeding; or
(b) a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
(c) in the case of the making of a statement - the falsity of the statement; or
(d) in the case of the signing of a record - the falsity of any statement contained in the record.


(4) Subsections (2) and (3), as in force after the commencement of section 4 of the Corporations Legislation (Evidence) Amendment Act 1992, apply in relation to a requirement made, as mentioned in paragraph (2) (a) of this section as so in force, at or after that commencement.


(5) Subsections (2) and (3), as in force before that commencement, continue to apply in relation to a requirement made, as mentioned in paragraph (2) (a) as so in force, before that commencement.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 69
Legal professional privilege

SECT

69. (1) This section applies where:
(a) under this Part, Division 3 of Part 10, or Division 2 of Part 11, a person requires a lawyer:
(i) to give information; or
(ii) to produce a book; and
(b) giving the information would involve disclosing, or the book contains, as the case may be, a privileged communication made by, on behalf of or to the lawyer in his or her capacity as a lawyer.


(2) The lawyer is entitled to refuse to comply with the requirement unless:
(a) if the person to whom, or by or on behalf of whom, the communication was made is a body corporate that is under official management or being wound up - the official manager or liquidator of the body; or
(b) otherwise - the person to whom, or by or on behalf of whom, the communication was made;
consents to the lawyer complying with the requirement.


(3) If the lawyer so refuses, he or she shall, as soon as practicable, give to the person who made the requirement a written notice setting out:
(a) if the lawyer knows the name and address of the person to whom, or by or on behalf of whom, the communication was made - that name and address;
(b) if subparagraph (1) (a) (i) applies and the communication was made in writing - sufficient particulars to identify the document containing the communication; and
(c) if subparagraph (1) (a) (ii) applies - sufficient particulars to identify the book, or the part of the book, containing the communication.
Penalty: 10 penalty units or imprisonment for 3 months, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 70
Powers of Court where non-compliance with Part

SECT

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


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


(3) If the Commission does so, the Court may inquire into the case and may order the person to comply with the requirement as specified in the order.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 8
Division 8 - Commission's powers where non-compliance with Part

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 71
Orders by Commission

SECT

71. This Division applies where, in the Commission's opinion, information about:
(a) affairs of a body corporate;
(b) securities; or
(c) futures contracts;
needs to be found out for the purposes of the exercise of any of the Commission's powers under this Part but cannot be found out because a person has failed to comply with a requirement made under this Part.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 72
Orders in relation to securities of a body corporate

SECT

72. If paragraph 71 (a) applies, the Commission may make one or more of the following:
(a) an order restraining a specified person from disposing of any interest in specified securities of the body corporate referred to in that paragraph;
(b) an order restraining a specified person from acquiring any interest in specified securities of the body;
(c) an order restraining the exercise of voting or other rights attached to specified securities of the body;
(d) an order directing the holder of securities in respect of which an order under this section is in force to give written notice of that order to any person whom the holder knows to be entitled to exercise a right to vote attached to the securities;
(e) an order directing the body not to pay, except in the course of winding up, a sum due from the body in respect of specified securities of the body;
(f) an order directing the body not to register the transfer or transmission of specified securities of the body;
(g) an order directing the body not to issue to a person who holds shares in the body shares that the body proposed to issue to the person:
(i) because the person holds shares in the body; or
(ii) pursuant to an offer or invitation made or issued to the
person because the person holds shares in the body.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 73
Orders in relation to securities generally

SECT

73. If paragraph 71 (b) applies, the Commission may make one or more of the following:
(a) an order restraining a specified person from disposing of any interest in specified securities;
(b) an order restraining a specified person from acquiring any interest in specified securities;
(c) an order restraining the exercise of voting or other rights attached to specified securities;
(d) an order directing the holder of securities in respect of which an order under this section is in force to give written notice of that order to any person whom the holder knows to be entitled to exercise a right to vote attached to the securities;
(e) an order directing a body corporate not to pay, except in the course of winding up, a sum due from the body in respect of specified securities;
(f) an order directing a body corporate not to register the transfer or transmission of specified securities;
(g) an order directing a body corporate not to issue to a person who holds shares in the body shares that the body proposed to issue to the person:
(i) because the person holds such shares; or
(ii) pursuant to an offer or invitation made or issued to the
person because the person holds such shares.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 74
Orders in relation to futures contracts

SECT

74. (1) If paragraph 71 (c) applies, the Commission may make one or more of the following:
(a) an order restraining a specified person from disposing of specified futures contracts;
(b) an order restraining a specified person from acquiring specified futures contracts;
(c) an order restraining a specified person from exercising rights under specified futures contracts;
(d) an order requiring a specified person to dispose of specified futures contracts, or to dispose of specified futures contracts in a specified manner.


(2) An order under subsection (1) does not prejudice or affect a right of a futures exchange, or of a clearing house for a futures exchange:
(a) to cause a futures contract to be closed out, or to close out a futures contract, because of a failure to meet a call for a deposit or margin;
(b) to enter into a liquidating trade in order so to cause a futures contract to be closed out, or in order so to close out a futures contract;
(c) to cause to be registered in a person's name, or to register in a person's name, a futures contract that was previously registered in another person's name.


(3) In this section:
"right" includes a right enforceable neither at law nor in equity.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 75
Orders under this Division

SECT

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


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


(3) Where an order is made under this Division (other than subsection (1)), the Commission shall cause to be given to the person to whom the order is directed:
(a) a copy of the order; and
(b) a copy of each order varying or revoking it.


(4) Where an order under this Division relates to securities, the Commission shall cause:
(a) a copy of the order; and
(b) a copy of each order varying or revoking it;
to be given to:
(c) in any case - the person who issued or made available, or who will issue or make available, the securities; or
(d) if the securities are rights or options - the person against whom the right or option is, or would be enforceable.


(5) A person shall comply with an order in force under this Division.
Penalty: 25 penalty units or imprisonment for 6 months, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 9
Division 9 - Evidentiary use of certain material

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 76
Statements made at an examination: proceedings against examinee

SECT

76. (1) A statement that a person makes at an examination of the person is admissible in evidence against the person in a proceeding unless:
(a) because of subsection 68 (3), the statement is not admissible in evidence against the person in the proceeding;
(b) the statement is not relevant to the proceeding and the person objects to the admission of evidence of the statement;
(c) the statement is qualified or explained by some other statement made at the examination, evidence of the other statement is not tendered in the proceeding and the person objects to the admission of evidence of the first-mentioned statement; or
(d) the statement discloses matter in respect of which the person could claim legal professional privilege in the proceeding if this subsection did not apply in relation to the statement, and the person objects to the admission of evidence of the statement.


(2) Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person.


(3) Where a written record of an examination of a person is signed by the person under subsection 24 (2) or authenticated in any other prescribed manner, the record is, in a proceeding, prima facie evidence of the statements it records, but nothing in this Part limits or affects the admissibility in the proceeding of other evidence of statements made at the examination.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 77
Statements made at an examination: other proceedings

SECT

77. Where direct evidence by a person (in this section called the "absent witness") of a matter would be admissible in a proceeding, a statement that the absent witness made at an examination of the absent witness and that tends to establish that matter is admissible in the proceeding as evidence of that matter:
(a) if it appears to the court or tribunal that:
(i) the absent witness is dead or is unfit, because of physical
or mental incapacity, to attend as a witness;
(ii) the absent witness is outside the State or Territory in
which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or
(iii) all reasonable steps have been taken to find the absent
witness but he or she cannot be found; or
(b) if it does not so appear to the court or tribunal - unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 78
Weight of evidence admitted under section 77

SECT

78. (1) This section applies where evidence of a statement made by a person at an examination of the person is admitted under section 77 in a proceeding.


(2) In deciding how much weight (if any) to give to the statement as evidence of a matter, regard shall be had to:
(a) how long after the matters to which it related the statement was made;
(b) any reason the person may have had for concealing or misrepresenting a material matter; and
(c) any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.


(3) If the person is not called as a witness in the proceeding:
(a) evidence that would, if the person had been so called, have been admissible in the proceeding for the purpose of destroying or supporting his or her credibility is so admissible; and
(b) evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.


(4) However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceeding and denied the matter in cross-examination, evidence of the matter would not have been admissible if adduced by the cross-examining party.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 79
Objection to admission of statements made at examination

SECT

79. (1) A party (in this section called the "adducing party") to a proceeding may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party:
(a) will apply to have admitted in evidence in the proceeding specified statements made at an examination; and
(b) for that purpose, will apply to have evidence of those statements admitted in the proceeding.


(2) A notice under subsection (1) shall set out, or be accompanied by writing that sets out, the specified statements.


(3) Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:
(a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and
(b) specifies, in relation to each of those statements, the grounds of objection.


(4) The period prescribed by subsection (3) may be extended by the court or tribunal or by agreement between the parties concerned.


(5) On receiving a notice given under subsection (3), the adducing party shall give to the court or tribunal a copy of:
(a) the notice under subsection (1) and any writing that subsection (2) required to accompany that notice; and
(b) the notice under subsection (3).


(6) Where subsection (5) is complied with, the court or tribunal may either:
(a) determine the objections as a preliminary point before the hearing of the proceeding begins; or
(b) defer determination of the objections until the hearing.


(7) Where a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless:
(a) the other party has, in accordance with subsection (3), objected to the statement being so admitted; or
(b) the court or tribunal gives the other party leave to object to the statement being so admitted.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 80
Copies of, or extracts from, certain books

SECT

80. (1) A copy of, or an extract from, a book relating to:
(a) affairs of a body corporate; or
(b) a matter referred to in any of paragraphs 31 (1) (g) to (m), inclusive, and 32 (1) (j) to (p), inclusive;
is admissible in evidence in a proceeding as if the copy were the original book, or the extract were the relevant part of the original book, as the case may be, whether or not the copy or extract was made under section 37.


(2) A copy of, or an extract from, a book is not admissible in evidence under subsection (1) unless it is proved that the copy or extract is a true copy of the book, or of the relevant part of the book, as the case may be.


(3) For the purposes of subsection (2), a person who has compared:
(a) a copy of a book with the book; or
(b) an extract from a book with the relevant part of the book;
may give evidence, either orally or by an affidavit or statutory declaration, that the copy or extract is a true copy of the book or relevant part, as the case may be.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 81
Report under Division 1

SECT

81. Subject to section 82, where a copy of a report under Division 1 or a corresponding law of another jurisdiction purports to be certified by the Commission as a true copy of such a report, the copy is admissible in a proceeding (other than a criminal proceeding) as prima facie evidence of:
(a) the Commission's report of its opinion for the purposes of paragraph 461 (h) or subparagraph 583 (c) (iii) of the Corporations Law of this jurisdiction; and
(b) any facts or matters that the report states the Commission to have found to exist.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 82
Exceptions to admissibility of report

SECT

82. (1) This section applies where a party to a proceeding tenders a copy of a report as evidence against another party.


(2) The copy is not admissible under section 81 in the proceeding as evidence against the other party unless the court or tribunal is satisfied that:
(a) a copy of the report has been given to the other party; and
(b) the other party, and the other party's lawyer, have had a reasonable opportunity to examine that copy and to take its contents into account in preparing the other party's case.


(3) Before or after the copy referred to in subsection (1) is admitted in evidence, the other party may apply to cross-examine, in relation to the report, a specified person who, or 2 or more specified persons each of whom:
(a) was concerned in preparing the report or making a finding about a fact or matter that the report states the Commission to have found to exist; or
(b) whether or not pursuant to a requirement made under this Part, gave information, or produced a book, on the basis of which, or on the basis of matters including which, such a finding was made.


(4) The court or tribunal shall grant an application made under subsection (3) unless it considers that, in all the circumstances, it is not appropriate to do so.


(5) If:
(a) the court or tribunal grants an application or applications made under subsection (3);
(b) a person to whom the application or any of the applications relates, or 2 or more such persons, is or are unavailable, or does not or do not attend, to be cross-examined in relation to the report; and
(c) the court or tribunal is of the opinion that to admit the copy under section 81 in the proceeding as evidence against the other party without the other party having the opportunity so to cross-examine the person or persons would unfairly prejudice the other party;
the court or tribunal shall refuse so to admit the copy, or shall treat the copy as not having been so admitted, as the case requires.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 83
Material otherwise admissible

SECT

83. Nothing in this Division renders evidence inadmissible in a proceeding in circumstances where it would have been admissible in that proceeding if this Division had not been enacted.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 10
Division 10 - Miscellaneous

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 83A
Exercise of powers etc. for purposes of investigation under corresponding law

SECT

83A. Where an investigation is being conducted under the provisions of a law of another jurisdiction that correspond to this Part, actions may be taken, and powers may be exercised, within this jurisdiction, for the purposes of that investigation as if the investigation were being conducted under this Part.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 84
Requirement made of a body corporate

SECT

84. Where a provision of this Part empowers a person to make a requirement of a body corporate, the provision also empowers the person to make that requirement of a person who is or has been an officer of the body.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 85
Evidence of authority

SECT

85. A person (in this section called the "inspector"), other than the Commission, who is about to make, or has made, a requirement of another person under this Part (other than Division 6) shall, if the other person requests evidence of the inspector's authority to make the requirement, produce to the other person:
(a) a current identity card that was issued to the inspector by the Commission and incorporates a photograph of the inspector;
(b) if the requirement will be, or was, made under an authorisation by the Commission - a document that was issued by the Commission and sets out the effect of so much of the authorisation as is relevant to making the requirement; and
(c) otherwise - such evidence (if any) of the inspector's authority to make the requirement as the Commission determines.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 86
Giving documents to natural persons

SECT

86. Section 109X of the Corporations Law of this jurisdiction has effect for the purposes of this Part as if a reference in subparagraph (1) (a) (ii) or subsection (3) of that section to leaving a document at an address were a reference to leaving it at that address with a person whom the person leaving the document believes on reasonable grounds:
(a) to live or work at that address; and
(b) to have attained the age of 16 years.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 87
Place and time for production of books

SECT

87. A provision of this Part that empowers a person to require the production of books at a place and time specified by the person shall be taken:
(a) to require the person to specify a place and time that are reasonable in all the circumstances; and
(b) if it is reasonable in all the circumstances for the person to require the books to be produced forthwith - to empower the person to require the books to be produced forthwith.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 88
Application of Crimes Act and Evidence Act

SECT

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


(1A) For the purposes of a national scheme law of this jurisdiction:
(a) an offence under Part III of the Crimes Act 1914 as it applies in relation to an examination or hearing is taken to be an offence against this section; and
(b) an offence under Part III of the Crimes Act 1914 as it applies, in relation to an examination or hearing held under the ASC Law of another jurisdiction, as a law of that jurisdiction is taken to be an offence against Part 3 of the ASC Law of that jurisdiction.


(2) Part 2.2, sections 69, 70, 71 and 147 and Division 2 of Part 4.6 of the Evidence Act 1995 apply to an examination in the same way that they apply to a proceeding to which that Act applies under section 4 of that Act.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 89
Allowances and expenses

SECT

89. (1) A person who, pursuant to a requirement made under section 19, appears for examination is entitled to the prescribed allowances and expenses (if any).


(2) A person who, pursuant to a summons issued under section 58, appears at a hearing is entitled to be paid:
(a) if the summons was issued at another person's request - by that other person; or
(b) otherwise - by the Commission;
the prescribed allowances and expenses (if any).


(3) The Commission may pay such amount as it thinks reasonable on account of the costs and expenses (if any) that a person incurs in complying with a requirement made under this Part.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 90
Expenses of investigation under Division 1

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 91
Recovery of expenses of investigation

SECT

91. (1) Subject to subsection (1A), where:
(a) a person is convicted of an offence against a law of this jurisdiction in a prosecution; or
(b) a judgment is awarded, or a declaration or other order is made, against a person in a proceeding in a court of this jurisdiction;
begun as a result of an investigation under Division 1 or a corresponding law of another jurisdiction, the Commission may make one of the following orders:
(c) an order that the person pay the whole, or a specified part, of the expenses of the investigation;
(d) an order that the person reimburse the Commission to the extent of a specified amount of such of the expenses of the investigation as the Commission has paid;
(e) an order that the person pay, or reimburse the Commission in respect of, the whole, or a specified part, of the cost to the Commission of making the investigation, including the remuneration of a member or staff member concerned in the investigation.


(1A) The Commission may not make an order under subsection (1) in respect of expenses or costs that have already been paid, or recovered by the Commission, pursuant to an order made under a provision of a law of another jurisdiction that corresponds to that subsection.


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


(3) A person shall comply with an order under this section that is applicable to the person.
Penalty: 50 penalty units or imprisonment for 1 year, or both.


(4) The Commission may recover in a court of competent jurisdiction as a debt due to the Commission so much of the amount payable under an order made under this section or a corresponding law of another jurisdiction as is not paid in accordance with the order.


(5) A report under Division 1 may include recommendations about the making of orders under this section.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 92
Compliance with Part

SECT

92. A person is neither liable to a proceeding, nor subject to a liability, merely because the person has complied, or proposes to comply, with a requirement made, or purporting to have been made, under this Part.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 93
Effect of Part

SECT

93. (1) Except as expressly provided, nothing in this Part limits the generality of anything else in this Part.


(2) The functions and powers that this Part confers are in addition to, and do not derogate from, any other function or power conferred by a law of the Commonwealth or of this or any other jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 4
PART 4 - THE COMMISSION'S BUSINESS

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - General

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 94
Arrangement of Commission's business

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 95
Commission to establish offices

SECT

95. (1) For the purpose of performing its functions and exercising its powers under national scheme laws, the Commission must establish a regional office in each jurisdiction, and may establish such other offices as it thinks fit.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 96
Regional Commissioners

SECT

96. (1) There is to be a different Regional Commissioner, employed by the Commission under subsection 120 (3), for each jurisdiction.


(2) A Regional Commissioner for a jurisdiction is to manage the regional office established under section 95 in that jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Divisions of the Commission

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 97
Commission may establish Division

SECT

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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 98
Effect of direction establishing Division

SECT

98. (1) Where a direction under section 97 is in force, this section has effect for the purposes of the performance or exercise by the Division, in accordance with the direction, of functions or powers of the Commission.


(2) The Commission shall be deemed to consist of the Division.


(3) If the Chairperson is not a member of the Division, the member whom the direction specifies as the Division's chairperson shall be deemed to be the Chairperson.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 99
Commission may reconstitute Division

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 100
Effect of reconstituting Division

SECT

100. (1) This section has effect where, as at the time when a direction is amended under section 99 so as to change a Division's membership, the Division as constituted before the change has, in relation to a particular matter, begun but not yet completed the performance of functions, or the exercise of powers, in accordance with the direction as in force before the amendment.


(2) The Division as constituted after the change may, in relation to that matter, perform functions, and exercise powers, in accordance with the direction as in force after the amendment.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 101
Multiple Divisions

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 3
Division 3 - Delegation by the Commission

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 102
Delegation

SECT

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


(2) The Commission shall not, without the Minister's approval, delegate a function or power to a person other than:
(a) a member;
(b) a staff member; or
(c) a person who, by virtue of the regulations, is a prescribed person in relation to the delegation.


(3) In subsections (1) and (2):
"person" includes a body.


(4) In exercising its power under subsection (1), the Commission shall seek to ensure that:
(a) the persons who make decisions affecting a particular business community are located as close to that community as practicable; and
(b) members of business communities throughout Australia have prompt and convenient access to decision-making and to the Commission's facilities.


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


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


(7) Where a body to which a function or power is delegated under this section is not a person, section 109ZF of the Corporations Law applies as if it were.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 4
Division 4 - Meetings of the Commission

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 103
Convening of meetings

SECT

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


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 104
Approved methods of communication

SECT

104. (1) If all the members who are not absent from office so agree, a meeting may be held by means of a method of communication, or by means of a combination of methods of communication, approved by the Commission for the purposes of that meeting.


(2) For the purposes of this Part, a member who participates in a meeting held as permitted by subsection (1) is present at the meeting even if he or she is not physically present at the same place as another member participating in the meeting.


(3) In this section:
"meeting" includes a part of a meeting.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 105
Quorum

SECT

105. At a meeting:
(a) if the Commission consists of 3 or 4 members - 2 members; or
(b) in any other case - 3 members;
form a quorum.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 106
Who is to preside at meetings

SECT

106. (1) The Chairperson shall preside at all meetings at which he or she is present.


(2) If the Chairperson is not present at a meeting but the Deputy Chairperson is present, the Deputy Chairperson shall preside.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 107
Procedure at meetings

SECT

107. (1) Questions arising at a meeting shall be determined by a majority of the votes of the members present at the meeting.


(2) The member presiding at a meeting has a deliberative vote but not a casting vote.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 5
PART 5 - THE COMMISSION'S MEMBERS

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - Terms and conditions

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 108
Term of office as member

SECT

108. (1) Subject to this Act, a person appointed as a member holds office for such term of at most 5 years as is specified in the instrument of appointment, but is eligible for re-appointment.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 109
Term of office as Chairperson or Deputy Chairperson

SECT

109. (1) Subject to this Act, a member appointed as Chairperson or Deputy Chairperson holds office as such until:
(a) in any case - the end of his or her current term as a member;
(b) in any case - he or she otherwise stops being a member; or
(c) in the case of a member appointed as Deputy Chairperson - he or she is appointed as Chairperson;
whichever happens first.


(2) A person is not ineligible to be appointed under section 10 merely because he or she has been so appointed before.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 110
Resignation

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 111
Termination of appointment

SECT

111. (1) The Governor-General may terminate a member's appointment because of misbehaviour, or the physical or mental incapacity, of the member or if the member:
(a) becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or assigns remuneration or property for their benefit;
(b) is a full-time member and engages without the Minister's consent in paid employment outside the duties of the member's office;
(c) is a full-time member and is absent from duty, except on leave of absence, for 14 consecutive days, or for 28 days in any period of 12 months;
(d) is a part-time member and is absent, except on leave granted in accordance with subsection 113 (2), from 3 consecutive meetings of the Commission;
(e) without reasonable excuse, contravenes section 123, subsection 124 (2), (4) or (6) or section 125; or
(f) contravenes section 128.


(2) The Governor-General may, with the consent of a full-time member who is:
(a) an eligible employee; or
(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990;
retire the member from office on the ground of incapacity.


(3) In spite of anything contained in this section, a member who:
(a) is an eligible employee; and
(b) has not reached his or her maximum retiring age within the meaning of the Superannuation Act 1976;
is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.


(4) In spite of anything contained in this section, a member who:
(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 112
Remuneration and allowances etc.

SECT

112. (1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, a member shall be paid such remuneration as the Minister determines in writing.


(2) A member shall be paid such allowances, and, subject to subsection (3), provided with such other benefits, as the Minister determines in writing.


(3) The benefits in respect of which the Minister may make a determination under subsection (2) are such benefits (including benefits by way of financial or other assistance in connection with housing, transport, insurance, long service leave and superannuation) as, in the Minister's opinion, are necessary or desirable to assist a member in, or place the member in a position that may facilitate, the performance of his or her functions.


(4) The Commission may reimburse a member for any loss or expenditure incurred by the member because of, or in the course of, the performance of his or her functions.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 113
Leave of absence

SECT

113. (1) Subject to section 87E of the Public Service Act 1922, a full-time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.


(2) The Minister may:
(a) grant a full-time member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines; and
(b) grant a part-time member leave of absence from a meeting of the Commission.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 114
Superannuation arrangements

SECT

114. (1) The Minister may make a written determination about the provision of superannuation benefits for or in relation to a specified full-time member who, when the determination is made, is not an eligible employee or a member of the superannuation scheme established by deed under the Superannuation Act 1990.


(2) The Minister may, by writing, vary or revoke a determination made under subsection (1), even if it has been varied at least once before.


(3) The Minister must not make a determination under subsection (1), or vary or revoke a determination so made, except in accordance with arrangements approved by the Minister under the Superannuation Benefits (Supervisory Mechanisms) Act 1990.


(4) Superannuation benefits may be provided in accordance with a determination under subsection (1) as that determination is in force when the benefits are provided.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 115
Other terms and conditions

SECT

115. A member holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Minister determines in writing.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Acting appointments

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 116
Acting members

SECT

116. (1) The Minister may:
(a) appoint a person to act as a full-time member during any period when there are less than 8 persons who are members or are acting as members in accordance with this paragraph or paragraph (b);
(b) appoint a person to act as a part-time member during any period when there are less than 8 persons who are members or are acting as members in accordance with this paragraph or paragraph (a) and there are at least 3 persons who are full-time members or are acting as members in accordance with paragraph (a); or
(c) appoint a person to act as a full-time member or as a part-time member during any period when a full-time member (other than the Chairperson or the Deputy Chairperson) or a part-time member, as the case may be, is absent from office, is acting as Deputy Chairperson in accordance with section 118 or, in the case of a part-time member, is, for any reason, unable to perform the functions of his or her office.


(2) Except so far as the contrary intention appears, a reference in this Act to a member of the Commission includes a reference to a person who is acting as a member under subsection (1).

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 117
Acting Chairperson

SECT

117. The Minister may appoint a member to act as Chairperson:
(a) during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chairperson is absent from office.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 118
Acting Deputy Chairperson

SECT

118. The Minister may appoint a member to act as Deputy Chairperson:
(a) during a vacancy in the office of Deputy Chairperson, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Deputy Chairperson is absent from office or is acting as Chairperson.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 119
Limitation on appointments to act during vacancy

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 3
Division 3 - Delegation by members

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 119A
Delegation by members

SECT

119A. (1) A member may, in writing, delegate to a person all or any of his or her functions and powers.


(2) A member must not, without the Minister's approval, delegate a function or power to a person other than:
(a) a staff member; or
(b) a person who, by virtue of the regulations, is a prescribed person in relation to the delegation.


(3) In the performance of a function, or the exercise of a power, delegated under this section, the delegate is subject to the member's directions.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 6
PART 6 - THE COMMISSION'S STAFF

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 120
Staff

SECT

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


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


(3) In addition to the staff referred to in subsection (1), the Commission may, on the Commonwealth's behalf, employ under written agreements such persons as the Commission thinks necessary for the performance or exercise of any of its functions and powers.


(4) The terms and conditions of employment of persons employed under subsection (3) are such as the Commission determines from time to time with the Minister's written approval.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 121
Consultants etc.

SECT

121. (1) The Commission may, on the Commonwealth's behalf, engage, under written agreements, as consultants to, or to perform services for, the Commission in connection with the performance or exercise of any of its functions or powers, persons having suitable qualifications and experience.


(2) The terms and conditions of engagement of persons engaged under subsection (1) are such as the Commission determines from time to time.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 122
Staff seconded to the Commission

SECT

122. In addition to the other staff members:
(a) officers and employees of Departments of the Australian Public Service, and of authorities of the Commonwealth, whose services are made available to the Commission in connection with the performance or exercise of any of its functions or powers; and
(b) persons whose services are so made available under arrangements made under section 249;
shall assist the Commission.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 122A
Transfer of staff to Australian Public Service

SECT

122A. Section 81B of the Public Service Act 1922 has effect in relation to any person who, immediately before the commencement of this Part:
(a) was employed by the NCSC; and
(b) was an unattached officer for the purposes of the Public Service Act 1922;
as if the person had ceased to be an officer of the Australian Public Service immediately before the commencement of this Part.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 7
PART 7 - PREVENTING CONFLICTS OF INTEREST
AND MISUSE OF INFORMATION

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - Disclosure of interests

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 123
Chairperson to disclose certain interests to Minister

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 124
Members to disclose certain interests to Chairperson

SECT

124. (1) This section has effect where a member:
(a) is to take part, or is taking part, in determining a matter before the Commission; and
(b) has or acquires a direct or indirect pecuniary or other interest that could conflict with the proper performance of the member's functions in relation to determining the matter.


(2) If the member is not the Chairperson, the member shall disclose the interest to the Chairperson.


(3) If the member is not the Chairperson and the Chairperson becomes aware that the member has the interest, the Chairperson shall:
(a) if the Chairperson considers that the member should not take part, or not continue to take part, as the case requires, in determining the matter - direct the member accordingly; or
(b) in any other case - cause the member's interest to be disclosed to the persons concerned in the matter.


(4) The member shall comply with a direction under paragraph (3) (a).


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


(6) Subject to subsection (4), the member shall not take part, or continue to take part, as the case requires, in determining the matter unless everyone concerned in it consents to the member so taking part.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 125
Notification of interests to Commission

SECT

125. (1) This section has effect where a person, in the course of:
(a) performing functions or services as a staff member (otherwise than as a person appointed or employed under the Public Service Act 1922);
(b) performing a function, or exercising a power, as a Commission delegate; or
(c) performing functions or services by way of assisting a Commission delegate;
is required to consider a matter in which the person has a direct or indirect pecuniary or other interest that could involve a conflict with the proper performance or exercise by the person of those functions, services or powers.


(2) The person shall forthwith give to the Commission a written notice:
(a) stating that he or she is required to consider the matter and has an interest in it; and
(b) setting out particulars of the interest.


(3) The person shall do whatever is necessary to avoid the conflict referred to in subsection (1).
Penalty: 50 penalty units or imprisonment for 12 months, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 126
Defence

SECT

126. It is a defence to a prosecution of a person for a contravention of section 125 if it is established that when the person was required to consider the matter he or she was not aware of a fact or thing whose existence obliged him or her to comply with that section in relation to the matter.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Confidentiality

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 127
Confidentiality

SECT

127. (1) The Commission shall take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction.


(2) For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the Commonwealth or a prescribed law of this or any other jurisdiction shall be taken to be authorised use and disclosure of the information.


(3) For the purposes of subsection (1), the disclosure of information by a person for the purposes of:
(a) performing the person's functions as:
(i) a member, staff member or Commission delegate; or
(ii) a person who is acting as a member or staff member or who
is authorised to perform or exercise a function or power of, or on behalf of, the Commission; or
(b) the performance of functions or services by the person by way of assisting a Commission delegate;
shall be taken to be authorised use and disclosure of the information.


(4) Where the Chairperson is satisfied that particular information:
(a) will enable or assist an agency, being the Advisory Committee, the Panel, the Disciplinary Board, the Review Board or any other agency within the meaning of the Freedom of Information Act 1982, to perform or exercise any of the agency's functions or powers;
(b) will enable or assist the government, or an agency, of a State or Territory to perform a function or exercise a power; or
(c) will enable or assist a government, or an agency, of a foreign country to perform a function, or exercise a power, conferred by a law in force in that foreign country;
the disclosure of the information to the agency or government by a person whom the Chairperson authorises for the purpose shall be taken to be authorised use and disclosure of the information.


(4A) The Chairperson may impose conditions to be complied with in relation to information disclosed under subsection (4).


(4B) The disclosure of information to a body corporate specified in regulations under subsection (4C) is authorised use and disclosure of the information if:
(a) the Chairperson is satisfied that the information will enable or assist the body corporate to monitor compliance with, enforce, or perform functions or exercise powers under:
(i) the Corporations Law of a State or internal Territory; or
(ii) the business rules, or the listing rules (if any), of the
body corporate; and
(b) the disclosure is by a person authorised by the Chairperson for the purpose.


(4C) The regulations may specify a body corporate for the purposes of subsection (4B) if, and only if, the body corporate:
(a) conducts a stock market or a futures market; or
(b) is the securities clearing house or a clearing house for a futures exchange.


(4D) The Chairperson may impose conditions to be complied with by a body corporate and its officers, employees and agents in relation to information disclosed to the body corporate under subsection (4B).


(4E) A person must comply with a condition imposed under subsection (4D).
Penalty: 100 penalty units or imprisonment for 2 years, or both.


(4F) If information is disclosed to a body corporate under subsection (4B), the body corporate, or an officer, employee or agent of the body corporate, must not, without the written consent of the Chairperson:
(a) disclose the information to a person who is not an officer, employee or agent of the body corporate; or
(b) use the information otherwise than for the purpose of monitoring compliance with, enforcing, or performing functions or exercising powers under:
(i) the Corporations Law of a State or internal Territory; or
(ii) the business rules, or the listing rules (if any), of the
body corporate.
Penalty: 100 penalty units or imprisonment for 2 years, or both.


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


(6) Nothing in any of subsections (2), (3), (4) and (4B) limits:
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.


(7) This section does not apply in relation to information in relation to which section 127A applies.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 127A
Secrecy

SECT

127A. (1) Subject to this section, a person who was at any time:
(a) appointed for the purposes of a law specified in an application order; or
(b) engaged as a member of the staff of the NCSC; or
(c) authorised to perform or exercise any function or power of the NCSC or any function or power on behalf of the NCSC;
must not, except to the extent necessary to perform his or her official duties, or to perform or exercise such a function or power, either directly or indirectly, make a record of, or disclose to any person, any information that is or was acquired by him or her because of having been so appointed, engaged or authorised, or make use of any such information, for any purpose other than the performance of his or her official duties or the performance or exercise of that function or power.
Penalty: 50 penalty units or imprisonment for one year, or both.


(2) Nothing in subsection (1) precludes a person from:
(a) producing a document to a court in the course of criminal proceedings or in the course of any proceedings under the National Companies and Securities Commission Act 1979 or under a prescribed law or national scheme law of this or any other jurisdiction; or
(b) disclosing to a court in the course of any proceedings referred to in paragraph (a) any matter or thing that came under his or her notice in the performance of official duties or in the performance of a function or the exercise of a power referred to in that subsection; or
(c) producing a document or disclosing information to a person to whom, in the opinion of the Commission, it is in the public interest that the document be produced or the information be disclosed; or
(d) producing a document or disclosing information that is required or permitted by any Act of this or any other jurisdiction to be produced or disclosed, as the case may be; or
(e) producing a document or disclosing information to the Commission.


(3) The following table sets out prescribed laws of this and the other jurisdictions for the purposes of paragraph (2) (a):
Acts of the Commonwealth
Companies Act 1981
Companies (Acquisition of Shares) Act 1980
Futures Industry Act 1986
Securities Industry Act 1980
Acts of New South Wales
Companies Act 1961
Companies (Application of Laws) Act 1981
Companies (Acquisition of Shares) (Application of Laws)
Act 1981
Futures Industry (Application of Laws) Act 1986
National Companies and Securities Commission (State
Provisions) Act 1981
Securities Industry Act 1975
Securities Industry (Application of Laws) Act 1981
Acts of the Northern Territory
Companies Act 1963
Companies (Acquisition of Shares) (Application of Laws)
Act 1986
Companies (Application of Laws) Act 1986
Futures Industry (Application of Laws) Act 1986
National Companies and Securities Commission (Northern
Territory Provisions) Act 1986
Securities Industry (Application of Laws) Act 1986
Acts of Queensland
Companies Act 1961
Companies (Application of Laws) Act 1981
Companies (Acquisition of Shares) (Application of Laws)
Act 1981
Company Takeovers Act 1979
Futures Industry (Application of Laws) Act 1986
National Companies and Securities Commission (State
Provisions) Act 1981
Securities Industry Act 1975
Securities Industry (Application of Laws) Act 1981
Acts of South Australia
Companies Act 1962-1982
Companies (Application of Laws) Act 1982
Companies (Acquisition of Shares) (Application of Laws)
Act 1981
Company Take-overs Act 1980
Futures Industry (Application of Laws) Act 1986
National Companies and Securities Commission (State
Provisions) Act 1981
Securities Industry Act 1979-1980
Securities Industry (Application of Laws) Act 1981
Acts of Tasmania
Companies Act 1962
Companies (Application of Laws) Act 1982
Companies (Acquisition of Shares) (Application of Laws)
Act 1981
Futures Industry (Application of Laws) Act 1987
National Companies and Securities Commission (State
Provisions) Act 1981
Securities Industry (Application of Laws) Act 1981
Acts of Victoria
Companies Act 1961
Companies (Application of Laws) Act 1981
Companies (Acquisition of Shares) (Application of Laws)
Act 1981
Futures Industry (Application of Laws) Act 1986
National Companies and Securities Commission (State
Provisions) Act 1981
Securities Industry Act 1975
Securities Industry (Application of Laws) Act 1981
Acts of Western Australia
Companies Act 1961
Companies (Application of Laws) Act 1981
Companies (Acquisition of Shares) (Application of Laws)
Act 1981
Company Take-overs Act 1979
Futures Industry (Application of Laws) Act 1986
Securities Industry Act 1975
Securities Industry (Application of Laws) Act 1981
Securities Industry (Release of Sureties) Act 1977
Acts and Ordinances of the Capital Territory
Companies Ordinance 1962

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 3
Division 3 - Restrictions on dealing in futures contracts

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 128
Certain persons not to deal on the basis of certain information

SECT

128. Where:
(a) because of being, or having at any time been, or acting as, or having at any time acted as, a member or staff member; or
(b) because of being, or having at any time been, a Commission delegate; or
(c) in the course of assisting, or because of assisting, or having at any time assisted, a Commission delegate;
a person has acquired information that is not generally available but that, if it were, would be likely to affect materially the price for dealing in a futures contract, the person must not deal in, or procure another person to deal in, that futures contract or a futures contract of the same kind as that futures contract.
Penalty: 200 penalty units or imprisonment for 5 years, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 129
Compensation to other parties where section 128 contravened

SECT

129. (1) A person who contravenes section 128 is liable to compensate any other party to the transaction for any loss sustained by that party because of any difference between the price at which the dealing in the futures contract took place and the price at which it would be likely to have taken place if the information had been generally available.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 130
Amount of compensation

SECT

130. (1) Where a person is liable under section 129 to compensate another person for a loss in relation to a transaction, the amount of the compensation is:
(a) if the first-mentioned person has already been found by a court to be liable under section 129 to pay an amount or amounts to a person or persons in relation to the transaction - the amount of that loss less the amount, or the sum of the amounts, that the first-mentioned person has been so found to be liable to pay; or
(b) in any other case - the amount of that loss.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 131
Limitation of actions

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 132
Commission may sue

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 8
PART 8 - FINANCE

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - General

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 133
Payments to Commission by Commonwealth

SECT

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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 134
The Commission's money

SECT

134. The Commission's money shall consist of:
(a) money paid to the Commission under subsection 133 (1); and
(b) any other money paid to the Commission (including money paid by a State or Territory, but not including money received by the Commission on behalf of a State or Territory in the course of performing functions or exercising powers pursuant to an agreement or arrangement entered into under subsection 11 (8)).

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 135
How Commission's money to be applied

SECT

135. (1) Subject to subsection (3), the Commission's money may be applied only:
(a) in paying or discharging expenses, charges, obligations or liabilities that:
(i) the Commission;
(ii) the Panel;
(iii) the Disciplinary Board; or
(iv) the Standards Board;
incurs or undertakes in connection with performing or exercising any of its functions and powers under a national scheme law of this or any other jurisdiction;
(b) in paying remuneration or allowances payable under this Act (other than remuneration or allowances payable to members of the Advisory Committee);
(c) in connection with the provision, in accordance with subsection 112 (2), of benefits to members;
(d) in connection with the provision, in accordance with subsection 114 (4), of superannuation benefits; or
(e) in making, in respect of a full-time member who is not an eligible employee, contributions under a superannuation or retirement scheme, however established.


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


(3) Any of the Commission's money that is not immediately required for purposes of the Commission may be invested:
(a) on deposit with a bank that, for the purposes of section 63J of the Audit Act 1901, is an approved bank in relation to the Commission;
(b) in Commonwealth securities; or
(c) in any other manner the Treasurer approves.


(4) This section has effect subject to a provision that a national scheme law of this or any other jurisdiction makes about money or property that vests in the Commission under such a law.


(5) The Minister may by writing require the Commission to pay to the Commonwealth so much of the Commission's money as:
(a) is not immediately required for the purposes of the Commission; and
(b) does not exceed a specified amount.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 136
Estimates

SECT

136. (1) The Commission shall:
(a) prepare estimates of the receipts and expenditure of the Commission, in such form as the Minister directs, for:
(i) each financial year; and
(ii) any other period specified by the Minister; and
(b) give the estimates to the Minister within such time as the Minister directs.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 137
Limitation on contracts and leases

SECT

137. (1) Except as otherwise provided by the regulations, the Commission shall not, without the approval of the Minister:
(a) enter into a contract under which the Commission is to pay or receive an amount exceeding $250,000 or, if a higher amount is prescribed, that higher amount; or
(b) enter into a lease of land for a period exceeding 10 years.


(2) In paragraph (1) (a):
"contract" does not include an agreement entered into under subsection 120 (3) or 121 (1) or an agreement entered into in the exercise of a power conferred by subsection 135 (3).

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 138
Application of Division 3 of Part XI of Audit Act

SECT

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


(2) A report by the Commission, under section 63M of the Audit Act 1901, of its operations during a year ending on a particular 30 June shall:
(a) describe the specific goals the Commission has pursued, and the priorities it has followed, during that year, in performing its functions and pursuing the objectives referred to in subsection 3 (2);
(b) describe what progress the Commission has made during that year towards achieving those goals; and
(c) describe any matters that, during that year, have adversely affected the Commission's effectiveness or have hindered the Commission in pursuing any of those goals and objectives.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 139
Liability to taxation

SECT

139. (1) Subject to subsection (2), the Commission is not subject to taxation under:
(a) a law of the Commonwealth (other than a law imposing sales tax, the Debits Tax Act 1982 or the Fringe Benefits Tax Act 1986); or
(b) a law of a State or Territory.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Trust property

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 140
Commission may accept property on trust

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 141
Trust money to be paid into bank account

SECT

141. The Commission shall ensure that trust money is paid into an account or accounts:
(a) maintained by the Commission under section 63J of the Audit Act 1901; and
(b) containing only trust money.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 142
How trust property to be applied

SECT

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


(2) Money that the Commission holds on trust may be invested in any manner in which:
(a) the terms of the trust authorise the Commission to invest the money; or
(b) a law in force in a State or internal Territory authorises trustees to invest trust funds.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 143
Accounts relating to trust property

SECT

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


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 144
Audit in relation to trust property

SECT

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


(2) For the purposes of subsection 63L (4) of the Audit Act 1901:
(a) the receipt or payment by the Commission of trust money is the receipt or payment of money by the Commission; and
(b) the acquisition, receipt, custody or disposal by the Commission of an asset the Commission receives or holds on trust is the acquisition, receipt, custody or disposal of an asset by the Commission.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 9
PART 9 - THE ADVISORY COMMITTEE

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - General

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 145
Establishment

SECT

145. A Companies and Securities Advisory Committee is established.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 146
Advisory Committee is a body corporate

SECT

146. The Advisory Committee:
(a) is a body corporate, with perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 147
Membership

SECT

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


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


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


(4) The Minister shall appoint a person as a member only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields, namely, business, the administration of companies, the financial markets, law, economics and accounting.


(5) In appointing the members:
(a) the Minister must have regard to the desirability of the views of business communities throughout Australia being adequately represented among the members; and
(b) the Minister must ensure so far as practicable that at any time there is at least one member of the Advisory Committee from each State and the Northern Territory.


(6) For the purposes of subsection (5), a member is from a particular State or Territory if he or she is a resident of that State or Territory.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 148
Functions

SECT

148. (1) The Advisory Committee's functions are, on its own initiative or when requested by the Minister, to advise the Minister, and to make to the Minister such recommendations as it thinks fit, about any matter connected with:
(a) a proposal to make a national scheme law, or to make amendments of a national scheme law;
(b) the operation or administration of a national scheme law;
(c) law reform in relation to a national scheme law;
(d) companies, securities or the futures industry; or
(e) a proposal for improving the efficiency of the securities markets or futures markets.


(2) In performing its functions, the Advisory Committee must have regard to the implications of any recommendations made by it for the laws of the jurisdictions other than the Capital Territory.


(3) In this section:
"national scheme law" means a national scheme law of the Capital Territory.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 148A
Minister to ask Advisory Committee to advise on operation of
continuous disclosure provisions etc.

SECT

148A. (1) Subject to this section, the Minister must, under section 148, request the Advisory Committee to advise the Minister about how effectively the following provisions are operating:
(a) sections 1001A and 1001B of the Corporations Law of the Capital Territory;
(b) sections 776, 777 and 779 of the Corporations Law of the Capital Territory;
(c) section 127 of this Act.


(2) The Minister must make the request at, or as soon as practicable after, the end of 18 months after the day on which item 92 of Schedule 1 to the Corporate Law Reform Act 1994 commences.


(3) The Advisory Committee must provide its advice within 6 months of the request being made.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 149
Term of office as member

SECT

149. Subject to this Act, a person appointed as a member holds office for such term of at least one year and at most 3 years as is specified in the instrument of appointment, but is eligible for re-appointment.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 150
Resignation

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 151
Termination of appointment

SECT

151. The Minister may terminate the appointment of a member:
(a) because of the physical or mental incapacity of the member; or
(b) if the member becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or assigns remuneration or property for their benefit.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 152
Remuneration and allowances etc.

SECT

152. (1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, a member shall be paid such remuneration as the Minister determines in writing.


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


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


(4) In this section:
"member" does not include the Chairperson of the Commission.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 153
Meetings

SECT

153. (1) Where the Convenor is absent from a meeting, the members who are present at the meeting may appoint one of their number to act as Convenor for the purposes of that meeting.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 154
Advisory Committee to inform itself in any manner

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 155
Publication of advice or recommendations

SECT

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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Staff and finance

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 156
Staff

SECT

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


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


(3) In addition to the staff referred to in subsection (1), the Advisory Committee may, on the Commonwealth's behalf, employ under written agreements such persons as the Advisory Committee thinks necessary for the performance or exercise of any of its functions and powers.


(4) The terms and conditions of employment of persons employed under subsection (3) are such as the Advisory Committee determines from time to time with the Minister's written approval.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 157
Consultants etc.

SECT

157. (1) The Advisory Committee may, on the Commonwealth's behalf, engage, under written agreements, as consultants to, or to perform services for, the Advisory Committee, in connection with the performance or exercise of any of its functions or powers, persons having suitable qualifications and experience.


(2) The terms and conditions of engagement of persons engaged under subsection (1) are such as the Advisory Committee determines from time to time.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 158
Staff seconded to Advisory Committee

SECT

158. In addition to the other staff of the Advisory Committee:
(a) officers and employees of Departments of the Australian Public Service, and of authorities of the Commonwealth, whose services are made available to the Advisory Committee in connection with the performance or exercise of any of its functions or powers; and
(b) persons whose services are so made available under arrangements made under section 249;
shall assist the Advisory Committee.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 159
Payments to Advisory Committee by Commonwealth

SECT

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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 160
The Advisory Committee's money

SECT

160. The Advisory Committee's money shall consist of:
(a) money paid to the Advisory Committee under subsection 159 (1); and
(b) any other money paid to the Advisory Committee.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 161
How Advisory Committee's money to be applied

SECT

161. (1) Subject to subsection (3), the Advisory Committee's money may be applied only:
(a) in paying or discharging expenses, charges, obligations, or liabilities, that the Advisory Committee incurs or undertakes in connection with performing or exercising any of its functions and powers; or
(b) in paying remuneration or allowances payable under this Act to members of the Advisory Committee.


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


(3) Any of the Advisory Committee's money that is not immediately required for purposes of the Advisory Committee may be invested:
(a) on deposit with a bank that, for the purposes of section 63J of the Audit Act 1901, is an approved bank in relation to the Advisory Committee;
(b) in Commonwealth securities; or
(c) in any other manner the Treasurer approves.


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


(5) The Minister may by writing require the Advisory Committee to pay to the Commonwealth so much of the Advisory Committee's money as:
(a) is not immediately required for the purposes of the Advisory Committee; and
(b) does not exceed a specified amount.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 162
Estimates

SECT

162. (1) The Advisory Committee shall:
(a) prepare estimates of the receipts and expenditure of the Advisory Committee, in such form as the Minister directs, for:
(i) each financial year; and
(ii) any other period specified by the Minister; and
(b) give the estimates to the Minister within such time as the Minister directs.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 163
Limitation on contracts and leases

SECT

163. (1) Except as otherwise provided by the regulations, the Advisory Committee shall not, without the approval of the Minister:
(a) enter into a contract under which the Advisory Committee is to pay or receive an amount exceeding $50,000 or, if a higher amount is prescribed, that higher amount; or
(b) enter into a lease of land for a period exceeding 10 years.


(2) In paragraph (1) (a):
"contract" does not include an agreement entered into under subsection 156 (3) or 157 (1).

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 164
Application of Division 3 of Part XI of Audit Act

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 165
Liability to taxation

SECT

165. (1) Subject to subsection (2), the Advisory Committee is not subject to taxation under:
(a) a law of the Commonwealth (other than a law imposing sales tax, the Debits Tax Act 1982 or the Fringe Benefits Tax Act 1986); or
(b) a law of a State or Territory.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 166
Advisory Committee may accept property on trust

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 167
Trust money to be paid into bank account

SECT

167. The Advisory Committee shall ensure that trust money is paid into an account or accounts:
(a) maintained by the Advisory Committee under section 63J of the Audit Act 1901; and
(b) containing only trust money.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 168
How trust property to be applied

SECT

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


(2) Money that the Advisory Committee holds on trust may be invested in any manner in which:
(a) the terms of the trust authorise the Advisory Committee to invest the money; or
(b) a law in force in a State or internal Territory authorises trustees to invest trust funds.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 169
Accounts relating to trust property

SECT

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


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 170
Audit in relation to trust property

SECT

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


(2) For the purposes of subsection 63L (4) of the Audit Act 1901:
(a) the receipt or payment by the Advisory Committee of trust money is the receipt or payment of money by the Advisory Committee; and
(b) the acquisition, receipt, custody or disposal by the Advisory Committee of an asset the Commission receives or holds on trust is the acquisition, receipt, custody or disposal of an asset by the Advisory Committee.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 10
PART 10 - THE CORPORATIONS AND SECURITIES PANEL

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - General

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 171
Establishment of Panel

SECT

171. A Corporations and Securities Panel is established.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 172
Membership

SECT

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


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


(3) Each of the members may be appointed as a full-time member or as a part-time member.


(4) The Minister shall nominate a person as a member only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields, namely, business, the administration of companies, the financial markets, law, economics and accounting.


(4A) Each person who is the Minister for a jurisdiction other than this jurisdiction may from time to time give to the Minister the names of persons who, in the opinion of the first-mentioned Minister:
(a) are qualified for appointment as members of the Panel by virtue of their knowledge of, or experience in, one or more of the following fields, namely, business, the administration of companies, the financial markets, law, economics and accounting; and
(b) ought to be considered for appointment as members of the Panel.


(4B) In nominating persons as members of the Panel, the Minister must ensure so far as practicable that, at any time, at least one member of the Panel is a person whose name has been given to the Minister under subsection (4A).


(5) The performance of the functions or the exercise of the powers of the Panel is not affected merely because its membership is not as prescribed by subsections (1) and (3), unless a continuous period of 3 months has elapsed since its membership ceased to be as so prescribed.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 173
President

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 174
Functions and powers of Panel

SECT

174. (1) The Panel has the functions and powers conferred on it by or under a national scheme law of this or any other jurisdiction.


(2) The Panel has power to do acts in the Capital Territory in the performance or exercise of any function or power expressed to be conferred on the Panel by a national scheme law of another jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 175
Term of office as member

SECT

175. (1) Subject to this Act, a person appointed as a member holds office for such term of at most 5 years as is specified in the instrument of appointment, but is eligible for re-appointment.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 176
Term of office as President

SECT

176. (1) Subject to this Act, a person appointed as President holds office as such until:
(a) the end of his or her current term as a member; or
(b) he or she otherwise stops being a member;
whichever happens first.


(2) A person is not ineligible to be appointed under section 173 merely because he or she has been so appointed before.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 177
Resignation

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 178
Termination of appointment

SECT

178. (1) The Governor-General may terminate a member's appointment because of misbehaviour, or the physical or mental incapacity, of the member or if the member:
(a) becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or assigns remuneration or property for their benefit;
(b) is a full-time member and engages without the Minister's consent in paid employment outside the duties of the member's office;
(c) is a full-time member and is absent from duty, except on leave granted in accordance with section 180, for 14 consecutive days, or for 28 days in any period of 12 months;
(d) contravenes section 128; or
(e) without reasonable excuse, contravenes section 185.


(2) The Governor-General may, with the consent of a full-time member who is an eligible employee, retire the member from office on the ground of incapacity.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 179
Remuneration and allowances

SECT

179. (1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, a member shall be paid such remuneration as the Minister determines in writing.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 180
Leave of absence

SECT

180. (1) Subject to section 87E of the Public Service Act 1922, a full-time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.


(2) The Minister may grant a full-time member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 181
Other terms and conditions

SECT

181. A member holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Minister determines in writing.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 182
Acting President

SECT

182. (1) The Minister may appoint a member to act as President:
(a) during a vacancy in the office of President, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the President is absent from office.


(2) A person appointed under subsection (1) to act during a vacancy shall not continue for more than 12 months to act during the vacancy.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 183
Annual report

SECT

183. (1) The Panel shall, as soon as practicable after 30 June, and in any event before 31 October, in each year:
(a) prepare a report describing the operations of the Panel during the year that ended on 30 June in that year; and
(b) give to the Minister a copy of the report.


(2) Where a copy of a report is given to the Minister under subsection (1), he or she shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after he or she receives the first-mentioned copy.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Conduct of Panel's business

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 184
Constitution of Panel in relation to particular matters

SECT

184. (1) The Panel shall, for the purposes of the performance or exercise of its functions or powers in relation to a particular matter, be constituted by 3 members in respect of whom a direction is in force under this section in relation to that matter.


(2) The President may give directions about the members (in this section called the "sitting members") who are to constitute the Panel for the purposes of performing or exercising its functions or powers in relation to particular matters.


(3) A direction under subsection (2) shall:
(a) unless the sitting members include the President - designate one of them as President; and
(b) in any case - designate one of the sitting members as Deputy President;
of the Panel as constituted in relation to the matter concerned.


(4) Where the President gives a direction as to the sitting members, he or she may:
(a) at any time after the giving of the direction and before the commencement of an inquiry in relation to the matter; or
(b) if one of those persons ceases to be a member, or ceases to be available for the purposes of an inquiry in relation to the matter, during the inquiry or after the completion of the inquiry but before the matter to which the inquiry relates is determined - at any time after the person so ceases to be a member or to be available;
revoke the direction and give a further direction under subsection (2) as to the additional members.


(5) In this section:
"functions or powers" means functions or powers of the Panel under a national scheme law of this jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 185
Disclosure of interests by members

SECT

185. (1) Where a member is, or is to be, a member of the Panel as constituted for the purposes of the performance or exercise of its functions or powers in relation to a particular matter and the member has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to that matter:
(a) the member must disclose the interest to the President and to the parties involved in the matter; and
(b) except with the President's consent, the member must not take part in the performance or exercise of the Panel's functions or powers in relation to the matter.


(1A) The President must not, under paragraph (1) (b), consent to a member taking part in the performance or exercise of the Panel's functions or powers in relation to a matter unless the President believes, on reasonable grounds, that the member's interest is immaterial or indirect and will not prevent the member from acting impartially in relation to the matter.


(2) Where the President becomes aware that a member who is, or is to be, a member of the Panel as constituted for the purposes of the performance or exercise of its functions or powers in relation to a particular matter has in relation to that matter such an interest as is mentioned in subsection (1), then:
(a) the President must revoke the direction given under subsection 184 (2) in relation to the matter unless the President believes, on reasonable grounds, that the member's interest is immaterial or indirect and will not prevent the member from acting impartially in relation to the matter; or
(b) if the President is not required to revoke that direction under paragraph (a), the President must cause the member's interest to be disclosed to the parties involved in the matter.


(3) In this section:
"functions or powers" means functions or powers of the Panel under a national scheme law of this jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 186
Application of Divisions 2 and 3 of Part 7

SECT

186. Divisions 2 and 3 of Part 7 apply in relation to the Panel, and in relation to a member of the Panel, as if:
(a) a reference in section 127 to the Commission included a reference to the Panel; and
(b) a reference in paragraph 128 (1) (a) to a member of the Commission included a reference to a member of the Panel.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 3
Division 3 - Inquiries by Panel

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 187
Interpretation

SECT

187. (1) In this Division:
"inquiry" means an inquiry held by the Panel and, in section 190, includes a part of such an inquiry.


(2) For the purposes of the performance or exercise, in relation to a particular matter, of any of the Panel's functions and powers, this Division has effect as if:
(a) a reference to the Panel were a reference to the Panel as constituted in relation to that matter;
(b) a reference to a member were a reference to a member of the Panel as so constituted;
(c) if the President is not a member of the Panel as so constituted - a reference to the President were a reference to the member designated, in a direction in force under subsection 184 (2), as the President of the Panel as so constituted; and
(d) a reference to the Deputy President were a reference to the member designated, in a direction in force under subsection 184 (2), as Deputy President of the Panel as so constituted.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 188
Power to hold inquiries

SECT

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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 189
Who may be present at inquiry

SECT

189. (1) An inquiry is to take place in private, unless the Panel directs that the inquiry, or a part of it, is to take place in public.


(2) A person must not be present at an inquiry, or a part of an inquiry, that takes place in private unless the person is:
(a) a member; or
(b) a member of the Commission, or a staff member, approved by the Panel; or
(c) entitled to be present under a direction given by the Panel.
Penalty: 10 penalty units or imprisonment for 3 months, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 190
Panel may restrict publication of certain material

SECT

190. (1) Where, during an inquiry, the Panel is satisfied that it is desirable to do so, the Panel may give directions preventing or restricting the publication of submissions or evidence made or given to, or of matters contained in documents lodged with, the Panel.


(2) In determining whether or not to give a direction under subsection (1), the Panel shall have regard to:
(a) whether submissions or evidence made or given, or that may be made or given, or a matter that has arisen or may arise, during the inquiry is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against an Australian law;
(b) any unfair prejudice to a person's reputation that would be likely to be caused unless the Panel exercises its powers under this section;
(c) whether it is in the public interest that the Panel exercises its powers under this section; and
(d) any other relevant matter.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 191
How information or evidence is given to Panel

SECT

191. (1) Generally, information or evidence is to be given to the Panel for the purposes of an inquiry by lodging with the Panel, in accordance with the requirements (if any) of the regulations, a written submission containing the information or evidence.


(2) A person may, however, appear before the Panel and give evidence at the inquiry if:
(a) the person is required by summons under section 192 to do so; or
(b) the Panel decides, in its discretion, to allow the person to do so.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 192
Power to summon witnesses and take evidence

SECT

192. (1) A member may, by written summons in the prescribed form given to a person:
(a) require the person to appear before the Panel at an inquiry to give evidence, to produce specified documents, or to do both; and
(b) require the person to attend from day to day unless excused, or released from further attendance, by a member.


(2) At an inquiry, the Panel may take evidence on oath or affirmation, and for that purpose a member may:
(a) require a witness at the inquiry to either take an oath or make an affirmation; and
(b) administer an oath or affirmation to a witness at the inquiry.


(3) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.


(4) The member presiding at an inquiry:
(a) may require a witness at the inquiry to answer a question put to the witness; and
(b) may require a person appearing at the inquiry pursuant to a summons issued under this section to produce a document specified in the summons.


(6) A person who, pursuant to a summons issued under this section, appears at an inquiry is entitled to be paid:
(a) if the summons was issued at another person's request - by that other person; or
(b) otherwise - by the Commission;
the prescribed allowances and expenses (if any).


(7) The Panel may pay such amount as it thinks reasonable on account of the costs and expenses (if any) that a person incurs in complying with a requirement made under this section.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 193
Who presides at inquiry

SECT

193. (1) The President is to preside at all inquiries at which he or she is present.


(2) If the President is not present at an inquiry, the Deputy President is to preside.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 193A
Quorum and determination of questions at inquiry

SECT

193A. (1) At an inquiry, 2 members form a quorum.


(2) Questions arising at an inquiry are to be determined by a majority of the votes of the members present at the inquiry.


(3) The member presiding at an inquiry has a deliberative vote but not a casting vote.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 194
Representation at hearings

SECT

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


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


(3) An unincorporated association, or a person in the person's capacity as a member of an unincorporated association, may be represented at an inquiry by a member or officer of the association approved by the Panel.


(4) A person who appears at an inquiry is entitled to have another person present to assist the person and a person who so assists is entitled to address the Panel.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 195
Procedure at inquiry

SECT

195. (1) An inquiry is to be conducted in accordance with (in order of priority):
(a) the requirements of this Division; and
(b) the requirements of the regulations; and
(c) the requirements of the Panel.


(2) Without limiting the generality of paragraph (1) (b), the regulations may deal with:
(a) the making of submissions or the giving of evidence to or at an inquiry; and
(b) the right (if any) to appear, or be represented, at an inquiry; and
(c) the matters to be taken into account by the Panel when making a decision in the course of an inquiry.


(3) The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of this Act and the Regulations made under it, apply to an inquiry.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 196
Reference to Court of question of law arising at hearing

SECT

196. (1) The Panel may, of its own motion, refer to the Court for decision a question of law arising at an inquiry.


(3) Where a question has been referred under subsection (1), the Panel shall not, in relation to a matter to which the inquiry relates:
(a) give while the reference is pending a decision to which the question is relevant; or
(b) proceed in a manner, or make a decision, that is inconsistent with the Court's opinion on the question.


(4) Where a question is referred under subsection (1):
(a) the Panel shall send to the Court all documents that were before the Panel in connection with the inquiry; and
(b) at the end of the proceeding in the Court in relation to the reference, the Court shall cause the documents to be returned to the Panel.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 197
Protection of members etc.

SECT

197. (1) A member has, in the performance or exercise of any of his or her functions and powers as a member in relation to an inquiry, the same protection and immunity as a Justice of the High Court.


(3) Subject to this Law, a person who is required by a summons under section 192 to appear at an inquiry, or a witness at an inquiry, has the same protection as a witness in a proceeding in the High Court.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 198
Non-compliance with requirements made under section 192

SECT

198. A person shall not, without reasonable excuse, fail to comply with a requirement made under subsection 192 (1), (2) or (4).
Penalty: 10 penalty units or imprisonment for 3 months, or both.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 199
False evidence

SECT

199. (1) A person must not:
(a) in a written submission given to the Panel for the purposes of an inquiry; or
(b) while appearing before the Panel at an inquiry;
give information or evidence that is false or misleading in a material particular.
Penalty: 10 penalty units or imprisonment for 3 months, or both.


(2) It is a defence to a prosecution for a contravention of subsection (1) if it is proved that the defendant, when giving the information or evidence, believed on reasonable grounds that it was true and not misleading.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 200
Contempt of Panel

SECT

200. (1) A person shall not:
(a) obstruct or hinder the Panel or a member in the performance or exercise of any of the Panel's functions and powers; or
(b) disrupt an inquiry.
Penalty: 50 penalty units or imprisonment for 1 year, or both.


(2) A person shall not, without reasonable excuse, contravene a direction given under subsection 190 (1).
Penalty: 50 penalty units or imprisonment for 1 year, or both.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 201
Powers of Court where non-compliance with section 192

SECT

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


(2) The Panel as so constituted may by writing certify the failure to the Court.


(3) If the Panel does so, the Court may inquire into the case and may order the person to comply with the requirement as specified in the order.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 201A
Undertakings to the Panel

SECT

201A. (1) During an inquiry, the Panel may accept a written undertaking from a person affected, or likely to be affected, by the inquiry about a matter relevant to the inquiry.


(2) The person may withdraw or vary the undertaking at any time, but only with the consent of the Panel.


(3) If the Panel considers that the person has breached any of the terms of the undertaking, the Panel may apply to the Court for an order under subsection (4).


(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;
(c) any other order that the Court considers appropriate.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 11
PART 11 - COMPANIES AUDITORS AND LIQUIDATORS
DISCIPLINARY BOARD

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - Constitution of Disciplinary Board

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 202
Establishment of Disciplinary Board

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 203
Membership of Disciplinary Board

SECT

203. (1) The Disciplinary Board shall consist of:
(a) a Chairperson;
(b) a member selected by the Minister from a panel of 5 persons, being persons resident in Australia, nominated by the National Council of the Institute of Chartered Accountants in Australia; and
(c) a member selected by the Minister from a panel of 5 persons, being persons resident in Australia, nominated by the National Council of the Australian Society of Certified Practising Accountants.


(2) A person is not eligible for appointment as Chairperson unless he or she is enrolled as a barrister, as a solicitor, as a barrister and solicitor or as a legal practitioner of the High Court, of any federal court or of the Supreme Court of a State or Territory and has been so enrolled for a period of at least 5 years.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 204
Functions and powers of Disciplinary Board

SECT

204. (1) The Disciplinary Board has the functions and powers conferred on it by or under a national scheme law of this or any other jurisdiction.


(2) The Disciplinary Board has power to do acts in the Capital Territory in the performance or exercise of any function or power expressed to be conferred on the Disciplinary Board by a national scheme law of another jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 205
Term of office

SECT

205. Subject to this Act, the Chairperson, each other member and each deputy of a member holds office for such term of at most 3 years as is specified in the instrument of his or her appointment, but is eligible for re-appointment.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 206
Resignation from office

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 207
Termination of appointment

SECT

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


(2) If the Chairperson, any other member or a deputy of a member:
(a) is absent, without leave of the Disciplinary Board, from 3 consecutive meetings of the Board (being, in the case of a deputy of a member, meetings that the deputy is required to attend);
(b) becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or assigns remuneration or property for their benefit;
(c) is convicted in Australia of an offence punishable by imprisonment for 12 months or longer;
(d) becomes of unsound mind; or
(e) fails, without reasonable excuse, to comply with section 211;
the Minister shall terminate his or her appointment.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 208
Acting Chairperson

SECT

208. The Minister may appoint a person who is eligible for appointment as Chairperson to act as Chairperson:
(a) during a vacancy in the office of Chairperson, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chairperson is absent from office.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 209
Appointment of deputies

SECT

209. (1) The Minister may:
(a) appoint a person selected by him or her from the panel referred to in paragraph 203 (1) (b) to be the deputy of the member referred to in that paragraph; and
(b) appoint a person selected by him or her from the panel referred to in paragraph 203 (1) (c) to be the deputy of the member referred to in that paragraph.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 210
Meetings

SECT

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


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


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


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


(5) At a meeting, the Chairperson has a deliberative vote and, in the event of an equality of votes, also has a casting vote.


(6) Subject to this section, the procedures for convening meetings of the Disciplinary Board and for the conduct of business by the Disciplinary Board shall be as the Disciplinary Board determines.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 211
Disclosure of interests

SECT

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


(2) A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Disciplinary Board shall, as soon as possible after the relevant facts have come to his or her knowledge, disclose the nature of his or her interest at a meeting of the Disciplinary Board.


(3) A disclosure under subsection (2) shall be recorded in the minutes of the meeting of the Disciplinary Board and the member shall not, unless the Minister or the Disciplinary Board otherwise determines:
(a) be present during any deliberation of the Disciplinary Board with respect to that matter; or
(b) take part in any decision of the Disciplinary Board with respect to that matter.


(4) For the purpose of the making of a determination by the Disciplinary Board under subsection (3) in relation to a member who has made a disclosure under subsection (2), a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a) be present during any deliberation of the Disciplinary Board for the purpose of making the determination; or
(b) take part in the making by the Disciplinary Board of the determination.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 212
Remuneration and allowances

SECT

212. (1) In this section:
"member" includes a deputy of a member.


(2) A member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, a member shall be paid such remuneration as the Minister determines in writing.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 213
Confidentiality

SECT

213. (1) The Disciplinary Board shall take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction.


(2) For the purposes of subsection (1), the disclosure of information:
(a) as required or permitted by a law of the Commonwealth or a prescribed law of this or any other jurisdiction; or
(b) in order to enable or assist an authority or person in:
(i) a State or Territory; or
(ii) a country outside Australia and the external Territories;
to perform or exercise a function or power that corresponds, or is analogous, to any of the Disciplinary Board's, or the Commission's functions and powers;
shall be taken to be authorised disclosure of the information.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 214
Annual report

SECT

214. (1) The Disciplinary Board shall, as soon as practicable after 30 June, and in any event before 31 October, in each year:
(a) prepare a report describing the operations of the Disciplinary Board during the year that ended on 30 June in that year; and
(b) give to the Minister a copy of the report.


(2) Where a copy of a report is given to the Minister under subsection (1), he or she shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after he or she receives the first-mentioned copy.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Hearings by Disciplinary Board

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 215
Interpretation

SECT

215. In this Division:
"hearing" means a hearing held by the Disciplinary Board under this Division.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 216
Hearings

SECT

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


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


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


(4) The Disciplinary Board may give directions as to the persons who may be present at a hearing that is to take place in private.


(5) Where, at a hearing that is taking place in public at the request of a person, the Disciplinary Board is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or in order to protect the interests of any other person, the Disciplinary Board may:
(a) direct that a part of the hearing take place in private and give directions as to the persons who may be present; or
(b) give directions preventing or restricting the publication of evidence given before the Disciplinary Board or of matters contained in documents lodged with or produced to the Disciplinary Board.


(6) Nothing in a direction given by the Disciplinary Board under subsection (4) or paragraph (5) (a) prevents the presence at a hearing of:
(a) a person representing the Commission pursuant to subsection 218 (3);
(b) a person who is entitled to be given an opportunity to appear at the hearing;
(c) a person representing, pursuant to subsection 218 (3), a person referred to in paragraph (b); or
(d) a person representing, pursuant to subsection 218 (3), a person who, by reason of a direction given by the Disciplinary Board under subsection (4), or paragraph (5) (a), of this section is entitled to be present at the hearing.


(7) Where the Disciplinary Board directs that a hearing or part of a hearing take place in private, a person (other than the Chairperson, a member, or a member of the staff of the Disciplinary Board approved by the Disciplinary Board) shall not be present at the hearing unless he or she is entitled to be present by virtue of the direction or by virtue of subsection (6).
Penalty: 10 penalty units or imprisonment for 3 months.


(8) Where the Disciplinary Board is required to give a person an opportunity to appear at a hearing, the Disciplinary Board shall appoint a day, time and place for the hearing and cause notice in writing of the day, time and place to be given to the person.


(9) A person who is entitled to be given an opportunity to appear at a hearing and who does not wish to appear at the hearing may, before the day of the hearing, lodge with the Disciplinary Board in writing any submissions that he, she or it wishes the Disciplinary Board to take into account in relation to the matter.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 217
Power to summon witnesses and take evidence

SECT

217. (1) The Chairperson or a member may summon a person to appear at a hearing to give evidence and to produce such documents (if any) as are referred to in the summons, being documents relating to the matters that are the subject of the hearing.


(2) The Disciplinary Board may, at a hearing, take evidence on oath or affirmation and for that purpose the Chairperson may:
(a) require a person appearing at the hearing to give evidence to either take an oath or make an affirmation; and
(b) administer an oath or affirmation to a person so appearing at the hearing.


(3) The oath or affirmation to be taken or made by a person for the purposes of subsection (2) is an oath or affirmation that the evidence he or she will give will be true.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 218
Proceedings at hearings

SECT

218. (1) At a hearing:
(a) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of national scheme laws and a proper consideration of the matters before the Disciplinary Board permit;
(b) the Disciplinary Board is not bound by the rules of evidence; and
(c) the Disciplinary Board may, on such conditions as it thinks fit, permit a person to intervene in the proceedings.


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


(3) At a hearing:
(a) the Commission may be represented by:
(i) a staff member, or a member or acting member, of the
Commission; or
(ii) a person authorised by the Commission for the purpose;
(b) a natural person may appear in person or may be represented by an employee of the person approved by the Disciplinary Board;
(c) a body corporate (other than the Commission) may be represented by an employee, or by a director or other officer, of the body corporate approved by the Disciplinary Board;
(d) an unincorporated association of persons or a member of an unincorporated association of persons may be represented by a member or officer of the association approved by the Disciplinary Board; and
(e) any person may be represented by a barrister or solicitor of the Supreme Court of a State or Territory or of the High Court.


(4) A person who attends at a hearing pursuant to a summons issued under subsection 217 (1) is entitled to be paid:
(a) in a case where the summons was issued at another person's request - by that other person; or
(b) in any other case - by the Disciplinary Board;
such allowances and expenses as are provided for by the regulations.


(5) The Disciplinary Board may permit a person appearing as a witness at a hearing to give evidence by tendering, and, if the Disciplinary Board thinks fit, verifying by oath, a written statement.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 219
Failure of witnesses to attend and answer questions

SECT

219. (1) A person served, as prescribed, with a summons to appear as a witness at a hearing shall not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from further attendance, by the Chairperson.


(2) A person appearing as a witness at a hearing shall not, without reasonable excuse:
(a) when required pursuant to subsection 217 (2) to either take an oath or make an affirmation - refuse or fail to comply with the requirement;
(b) refuse or fail to answer a question that he or she is required to answer by the Chairperson; or
(c) refuse or fail to produce a document that he or she was required to produce by a summons under subsection 217 (1) served on him or her as prescribed.


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


(4) A person shall not contravene subsection (1), (2) or (3).
Penalty: 10 penalty units or imprisonment for 3 months.


(5) A person who contravenes subsection (3) is not guilty of an offence against subsection (4) if it is proved that he or she, when giving the evidence, believed on reasonable grounds that it was true and not misleading.


(6) Where the Disciplinary Board is satisfied that:
(a) a person served, as prescribed, with a summons to appear as a witness at a hearing has, without reasonable excuse, failed to attend as required by paragraph (1) (a) or (b); or
(b) a person appearing as a witness at a hearing has, without reasonable excuse:
(i) when required pursuant to subsection 217 (2) either to take
an oath or make an affirmation;
(ii) when required by the Chairperson to answer a question; or
(iii) when required to produce a document by a summons under
subsection 217 (1) served on him or her as prescribed;
refused or failed to comply with the requirement;
the Chairperson may, by instrument in writing, certify the failure to attend or the refusal or failure to comply with the requirement, as the case may be, to the Court.


(7) Where a certificate is given under subsection (6), the Court may inquire into the case and, if it is satisfied that the person to whom the certificate relates has, without reasonable excuse, failed to attend or refused or failed to comply with a requirement as mentioned in the certificate:
(a) may order the person to attend or to comply with the requirement at a hearing to be held at a time and place specified in the order; or
(b) may punish the person in the same manner as if he or she had been guilty of contempt of the Court and, if it thinks fit, also make an order under paragraph (a).

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 220
Contempt of Disciplinary Board

SECT

220. (1) A person shall not:
(a) obstruct or hinder the Disciplinary Board or a member in the performance or exercise of any of the Disciplinary Board's functions and powers; or
(b) disrupt a hearing.
Penalty: 10 penalty units or imprisonment for 3 months.


(2) A person shall not, without reasonable excuse, contravene a direction given under paragraph 216 (5) (b).
Penalty: 10 penalty units or imprisonment for 3 months.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 221
Protection of members etc.

SECT

221. (1) The Chairperson or a member has, in the performance of his or her functions or the exercise of his or her powers as the Chairperson or a member in relation to a hearing, the same protection and immunity as a Justice of the High Court.


(2) A barrister, solicitor or other person appearing on behalf of a person at a hearing has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.


(3) Subject to this Law, a person summoned to attend or appearing as a witness at a hearing has the same protection as a witness in proceedings in the High Court.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 222
Hearings deemed to be judicial proceedings

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 223
Costs

SECT

223. (1) Where:
(a) the Disciplinary Board holds a hearing in relation to a person in accordance with subsection 1294 (1) of the Corporations Act 1989; and
(b) the Disciplinary Board cancels or suspends the registration of the person as an auditor, as a liquidator or as a liquidator of a specified body corporate, or deals with the person:
(i) by admonishing or reprimanding the person; or
(ii) by requiring the person to give an undertaking to engage
in, or to refrain from engaging in, specified conduct;
the Disciplinary Board may require the person to pay an amount specified by the Disciplinary Board, being all or part of:
(c) the costs of and incidental to the hearing;
(d) the costs of the Commission in relation to the hearing; or
(e) the costs mentioned in paragraph (c) and the costs mentioned in paragraph (d).


(2) Where:
(a) the Disciplinary Board holds a hearing in relation to a person in accordance with subsection 1294 (1) of the Corporations Act 1989; and
(b) the Disciplinary Board refuses to make an order cancelling or suspending the registration of the person as an auditor, as a liquidator or as a liquidator of a specified body corporate, as the case requires, and does not deal with the person in any of the ways mentioned in subparagraphs (1) (b) (i) and (ii);
the Disciplinary Board may require the Commission to pay an amount specified by the Disciplinary Board, being all or part of:
(c) the costs of and incidental to the hearing;
(d) the costs of the person in relation to the hearing; or
(e) the costs mentioned in paragraph (c) and the costs mentioned in paragraph (d).


(3) Where:
(a) under subsection (1), the Disciplinary Board requires a person to pay all or part of the costs of and incidental to a hearing held by the Disciplinary Board in relation to the person (whether or not the Disciplinary Board also requires the person to pay all or part of the costs of the Commission in relation to the hearing); or
(b) under subsection (2), the Disciplinary Board requires the Commission to pay all or part of the costs of and incidental to a hearing held by the Disciplinary Board in relation to a person (whether or not the Disciplinary Board also requires the Commission to pay all or part of the costs of the person in relation to the hearing);
the amount of the costs of and incidental to the hearing so required to be paid by the first-mentioned person or by the Commission, as the case may be, may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.


(4) Where, under subsection (1), the Disciplinary Board requires a person to pay all or part of the costs of the Commission in relation to a hearing held by the Disciplinary Board in relation to the person (whether or not the Disciplinary Board also requires the person to pay all or part of the costs of and incidental to the hearing), the amount of the costs of the Commission so required to be paid by the person may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 12
PART 12 - AUSTRALIAN ACCOUNTING STANDARDS BOARD

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 224
Establishment of Standards Board

SECT

224. An Australian Accounting Standards Board is established.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 225
Membership of the Standards Board

SECT

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


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


(3) The Minister shall appoint a person as the Director or as a member only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields, namely, accounting, law or business.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 226
Functions and powers

SECT

226. (1) The Standards Board has such functions as are conferred on it by or under a national scheme law, and also the following functions:
(a) to develop a conceptual framework, not having the force of an accounting standard, for the purpose of evaluating proposed accounting standards;
(b) to review proposed accounting standards;
(c) to sponsor or undertake the development of possible accounting standards;
(d) to engage in such public consultation as may be necessary to decide whether or not it should make a proposed accounting standard;
(e) to make such changes to the form and content of a proposed accounting standard as it considers necessary.


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


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


(4) In performing its functions, the Standards Board must have regard to the implications of any recommendations made by it for the operation of the laws of the jurisdictions other than the Capital Territory.


(4A) The Standards Board must, so far as it is reasonably practicable to do so, ensure that the New Zealand authority is consulted in the course of:
(a) the development of possible accounting standards; and
(b) the review of proposed accounting standards.


(5) In this section:
"national scheme law" means a national scheme law of the Capital Territory;
"New Zealand authority" means the person or authority that in New Zealand has functions that are analogous to the functions of the Standards Board.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 227
Term of office

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 228
Resignation from office

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 229
Termination of appointment

SECT

229. The Minister may terminate the appointment of the Director or a member:
(a) because of physical or mental incapacity; or
(b) if he or she becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or assigns remuneration or property for their benefit.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 230
Acting Director

SECT

230. The Minister may appoint a member to act as Director:
(a) during a vacancy in the office of Director, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Director is absent from office.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 231
Meetings

SECT

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


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


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


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


(5) At a meeting, the Director has a deliberative vote and, in the event of an equality of votes, also has a casting vote.


(6) Subject to this section, the procedures for convening meetings of the Standards Board and for the conduct of business by the Standards Board shall be as the Standards Board determines.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 232
Remuneration and allowances

SECT

232. (1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, a member shall be paid such remuneration as the Minister determines in writing.


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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 233
Confidentiality

SECT

233. (1) The Standards Board shall take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence.


(2) For the purposes of subsection (1), the disclosure of information:
(a) as required or permitted by a law of the Commonwealth or a prescribed law of this or any other jurisdiction; or
(b) in order to enable or assist an authority or person in:
(i) a State or Territory; or
(ii) a country outside Australia and the external Territories;
to perform or exercise a function or power that corresponds, or is analogous, to any of the Standards Board's functions or powers;
shall be taken to be authorised disclosure of the information.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 234
Annual Report

SECT

234. (1) The Standards Board shall, as soon as practicable after 30 June, and in any event before 31 October, in each year:
(a) prepare a report describing the operations of the Standards Board during the year that ended on 30 June in that year; and
(b) furnish to the Minister a copy of the report.


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 14
PART 14 - THE PARLIAMENTARY COMMITTEE

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 241
Establishment and membership

SECT

241. (1) As soon as practicable after the commencement of this Part and after the commencement of the first session of each Parliament, a joint committee of members of the Parliament, to be known as the Parliamentary Joint Committee on Corporations and Securities, shall be appointed.


(2) The Parliamentary Committee shall consist of 10 members, of whom:
(a) 5 shall be senators appointed by the Senate; and
(b) 5 shall be members of the House of Representatives appointed by that House.


(3) The appointment of members by a House shall be in accordance with that House's practice relating to the appointment of members of that House to serve on joint select committees of both Houses.


(4) A person is not eligible for appointment as a member if he or she is:
(a) a Minister;
(b) the President of the Senate;
(c) the Speaker of the House of Representatives;
(d) the Deputy-President and Chairman of Committees of the Senate; or
(e) the Chairman of Committees of the House of Representatives.


(5) A member ceases to hold office:
(a) when the House of Representatives expires or is dissolved;
(b) if he or she becomes the holder of an office referred to in a paragraph of subsection (4);
(c) if he or she ceases to be a member of the House by which he or she was appointed; or
(d) if he or she resigns his or her office as provided by subsection (6) or (7), as the case requires.


(6) A member appointed by the Senate may resign his or her office by writing signed and delivered to the President of the Senate.


(7) A member appointed by the House of Representatives may resign his or her office by writing signed and delivered to the Speaker of that House.


(8) A House may appoint one of its members to fill a vacancy among the members of the Parliamentary Committee appointed by that House.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 242
Powers and proceedings

SECT

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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 243
Duties

SECT

243. The Parliamentary Committee's duties are:
(a) to inquire into, and report to both Houses on:
(i) activities of the Commission or the Panel, or matters
connected with such activities, to which, in the Parliamentary Committee's opinion, the Parliament's attention should be directed; or
(ii) the operation of any national scheme law, or of any other
law of the Commonwealth, of a State or Territory or of a foreign country that appears to the Parliamentary Committee to affect significantly the operation of a national scheme law;
(b) to examine each annual report that is prepared by a body established by this Act and of which a copy has been laid before a House, and to report to both Houses on matters that appear in, or arise out of, that annual report and to which, in the Parliamentary Committee's opinion, the Parliament's attention should be directed; and
(c) to inquire into any question in connection with its duties that is referred to it by a House, and to report to that House on that question.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 15
PART 15 - MISCELLANEOUS

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 243A
Offences under 2 or more ASC Laws

SECT

243A. Where:
(a) an act or omission constitutes an offence under the ASC Law of this jurisdiction and the ASC Law of another jurisdiction; and
(b) the offender has been punished for that offence under the law of the other jurisdiction;
the offender is not liable to be punished for the offence under the law of this jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 243B
Offences committed partly in and partly out of the jurisdiction

SECT

243B. Where:
(a) a person does or omits to do an act outside this jurisdiction; and
(b) if that person had done or omitted to do that act in this jurisdiction, the person would, by reason of also having done or omitted to do an act in this jurisdiction, have been guilty of an offence against this Law;
the person is guilty of that offence.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 243C
Reciprocity in relation to offences

SECT

243C. Where:
(a) a person does or omits to do an act within this jurisdiction; and
(b) if that person had done or omitted to do that act in another jurisdiction, the person would have been guilty of an offence against a provision of a law of another jurisdiction that corresponds to a provision of this Law;
the person is guilty of an offence against that provision of this Law.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 243D
Financial transaction reports

SECT

243D. (1) If:
(a) a cash dealer within the meaning of the Financial Transaction Reports Act 1988 is a party to a transaction; and
(b) the cash dealer has reasonable grounds to suspect that information that the cash dealer has concerning the transaction may be relevant to investigation of, or prosecution of a person for, an offence against this Law or the Corporations Law;
the cash dealer must, as soon as practicable after forming that suspicion:
(c) prepare a report of the transaction; and
(d) communicate the information contained in the report to the Director of the Australian Transaction Reports and Analysis Centre.


(2) The report must:
(a) be prepared in the approved form; and
(b) contain the reportable details of the transaction; and
(c) contain a statement of the grounds on which the cash dealer holds the suspicion referred to in subsection (1); and
(d) be signed by the cash dealer.


(3) The communication must be made to the Director:
(a) by giving the Director a copy of the report; or
(b) in such other manner and form as is approved by the Director, in writing, in relation to the cash dealer or to a class of cash dealers that includes the cash dealer.


(4) Where a cash dealer communicates information to the Director under subsection (1), the cash dealer must, if requested to do so by:
(a) the Director; or
(b) a relevant authority; or
(c) an investigating officer who is carrying out an investigation arising from, or relating to the matters referred to in, the information contained in the report;
give such further information as is specified in the request to the extent to which the cash dealer has that information.


(5) An action, suit or proceeding does not lie against:
(a) a cash dealer; or
(b) an officer, employee or agent of the cash dealer acting in the course of that person's employment or agency;
in relation to any action taken by the cash dealer or person pursuant to this section.


(6) Where a cash dealer, or a person who is an officer, employee or agent of a cash dealer, communicates or gives information under this section, the cash dealer or person is taken, for the purposes of sections 81 and 82 of the Proceeds of Crime Act 1987, not to have been in possession of that information at any time.


(7) The Financial Transaction Reports Act 1988 (other than sections 16 and 17) applies as a law of this jurisdiction, to the extent that it makes provision in connection with, or for the purposes of, the operation of sections 16 and 17 of that Act, as if, in that Act:
(a) references to section 16 were references to this section (other than subsection (6) and this subsection); and
(b) references to section 17 were references to subsection (6) of this section; and
(c) references to Part II included references to sections 16 and 17.


(8) In this section:
"approved" means approved by the Director, in writing, for the purposes of this section;
"investigating officer", "relevant authority" and "reportable details" have the same meanings as in section 16 of the Financial Transaction Reports Act 1988.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 244
Review by Administrative Appeals Tribunal of certain decisions

SECT

244. (1) In this section:
"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975.


(2) Applications may be made to the Administrative Appeals Tribunal for review of a decision by the Commission:
(a) to make an order under section 72, 73 or 74;
(b) to make an order under subsection 75 (1) varying an order in force under Division 8 of Part 3; or
(c) to refuse to vary or revoke an order in force under Division 8 of Part 3.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 244A
Notice of reviewable decision and review rights

SECT

244A. (1) This section applies if the Commission makes a decision to which subsection 244 (2) applies.


(2) Subject to subsection (3), the Commission must take such steps as are reasonable in the circumstances to give to each person whose interests are affected by the decision notice, in writing or otherwise:
(a) of the making of the decision; and
(b) of the person's right to have the decision reviewed by the Administrative Appeals Tribunal.


(3) Subsection (2) does not require the Commission to give notice to a person affected by the decision, or to the persons in a class of persons affected by the decision, if the Commission determines that giving notice to the person or persons is not warranted, having regard to:
(a) the cost of giving notice to the person or persons; and
(b) the way in which the interests of the person or persons are affected by the decision.


(4) A failure to comply with this section does not affect the validity of the decision.


(5) The fact that a person has not been given notice of the decision because of a determination under subsection (3) constitutes special circumstances for the purposes of subsection 29 (6) of the Administrative Appeals Tribunal Act 1975.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 245
Validity of certain actions

SECT

245. Nothing done by or in relation to a person who has been appointed to, or appointed to act in, an office under the Australian Securities Commission Act 1989 is invalid on the ground that:
(a) the occasion for the appointment had not arisen;
(b) there was a defect or irregularity in connection with the appointment;
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had ceased.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 246
Liability for damages

SECT

246. (1) None of the following:
(aa) the Minister;
(a) the Commission;
(b) the Advisory Committee;
(c) a member of the Commission;
(d) a member of the Advisory Committee;
(e) a member of the Panel;
(f) a person appointed for the purposes of the Australian Securities Commission Act 1989 or a prescribed law of the Commonwealth or of this or any other jurisdiction;
(g) a staff member or a person who is, or is a member of, a Commission delegate or is authorised to perform or exercise a function or power of, or on behalf of, the Commission;
(h) a member of the staff referred to in subsection 156 (1), a person employed under subsection 156 (3), a person engaged under subsection 157 (1) or any of the officers, employees and persons who under section 158 are to assist the Advisory Committee;
is liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred or expressed to be conferred by or under a national scheme law or a prescribed law of the Commonwealth or of this or any other jurisdiction.


(2) The protection from liability given by subsection (1) to the Minister applies only in respect of acts done, and omissions occurring, after the commencement of section 181 of the Corporate Law Reform Act 1992.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 247
Duplicate seals

SECT

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


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

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 248
Judicial notice of Commission's seal and members' signatures

SECT

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


(2) A court shall take judicial notice of:
(a) the official signature of a person who holds or has held, or is acting or has acted in, the office of member, Chairperson or Deputy Chairperson; and
(b) the fact that the person holds or has held, or is acting or has acted in, that office;
if a signature purporting to be the person's signature appears on an official document.


(3) In this section:
(a) "court" includes a tribunal; and
(b) a reference, in relation to a tribunal, to taking judicial notice is a reference to taking the same notice as would be taken by a court.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 251
The ASC Regulations

SECT

251. (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act (other than the non-applied provisions) to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act (other than the non-applied provisions).


(2) Regulations providing for allowances and expenses for the purposes of section 89 or subsection 192 (6) or 218 (4) may provide for those allowances and expenses by reference to a scale of expenses for witnesses who attend before a court specified in the regulations, being a federal court, or the Supreme Court of a State or Territory.


(3) Regulations made under this section may provide that the ASC Law of this jurisdiction has effect, with prescribed modifications, in relation to the following:
(a) investigations that subsection 13 (5) empowers the Commission to continue;
(b) investigations that the Commission must make or continue because of section 14A;
(c) hearings that subsection 51 (2) empowers the Commission to continue;
(d) contraventions of relevant previous laws of this jurisdiction;
(e) authorisations by the Commission under such laws;
(f) requirements to produce books, or to give information, that are made of persons under such laws;
(g) informations laid under such laws in order to obtain warrants;
(h) warrants obtained under such laws.


(4) Regulations in force because of subsection (3) have effect accordingly.


(5) Regulations made under this section may require or permit matters to be specified, for the purposes of the regulations, by or in application orders.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 252
Regulations for the purposes of non-applied provisions

SECT

252. The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by the non-applied provisions to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to the non-applied provisions.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 16
PART 16 - TRANSITIONAL

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 253
Interpretation

SECT

253. In this Part, unless the contrary intention appears:
"assets" means property of every kind, and includes, but is not limited to:
(a) choses in action; and
(b) rights, interests and claims of every kind in or to property, whether arising under or by virtue of an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing;
"authorised officer" means:
(a) the Minister; or
(b) the Chairperson; or
(c) a member of the staff of the Commission authorised by the Minister in writing for the purposes of this Part;
"commencement", when used in a provision of this Part, means the commencement of that provision;
"liabilities" means liabilities of every kind, and includes, but is not limited to, obligations of every kind, whether arising under or by virtue of an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing;
"NCSC Act" means the National Companies and Securities Commission Act 1979;
"NCSC instrument" means an instrument:
(a) to which the NCSC was a party; or
(b) that was given to or in favour of the NCSC; or
(c) in which a reference is made to the NCSC; or
(d) under which money is or may become payable, or any other property is to be, or may become liable to be, transferred, to or by the NCSC;
being an instrument subsisting immediately before the commencement of the provision in which the expression is used;
"section 462 assets" means assets held by the NCSC in relation to which section 462 of the Companies Act 1981 or a corresponding law of this or another jurisdiction applies, whether with modifications or not;
"trust assets of the NCSC" means:
(a) assets received or held by the NCSC as mentioned in section 43 of the NCSC Act; and
(b) section 462 assets.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 254
Trust assets of NCSC

SECT

254. At the commencement:
(a) the trust assets of the NCSC become assets of the Commission; and
(b) subject to any written declaration to the contrary made by the Minister, any liabilities that are associated with those assets become liabilities of the Commission.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 255
Money of NCSC

SECT

255. At the commencement, money held by the NCSC that:
(a) was paid to the NCSC under section 26 of the NCSC Act; or
(b) was received by the NCSC in accordance with section 27 of the NCSC Act;
becomes money of the Commonwealth and is to be paid into the Consolidated Revenue Fund.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 256
Other assets and liabilities of NCSC

SECT

256. (1) At the commencement, the remaining assets and liabilities of the NCSC become assets and liabilities of the Commonwealth.


(2) The Minister may declare in writing that a specified asset or liability covered by subsection (1) does not become an asset or liability of the Commonwealth.


(3) Where the Minister makes a declaration under subsection (2), the asset or liability concerned becomes an asset or liability of the Commission.


(4) Where the Minister makes a declaration under subsection (2) in relation to an asset, any liabilities that are associated with the asset and are specified in the direction become liabilities of the Commission.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 257
Effect of transfer of assets and liabilities to Commission

SECT

257. The following provisions apply to assets or liabilities that become assets or liabilities of the Commission because of section 254 or 256:
(a) an asset that was, immediately before the commencement of the section concerned, held by the NCSC on trust is, after that commencement, to be held by the Commission on trust and subject to the terms of the trust on which the asset was so held by the NCSC;
(b) liabilities of the NCSC to make payments are, after the commencement of the section concerned, taken to be liabilities incurred by the Commission in the performance of its functions and the exercise of its powers.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 258
NCSC instruments

SECT

258. (1) An NCSC instrument continues to have effect after the commencement but, in its operation in relation to acts, transactions, matters or things done, entered into or occurring after that commencement, has effect as if a reference in the instrument to the NCSC were a reference to the appropriate new body.


(2) For the purposes of the application of subsection (1) in relation to an NCSC instrument, the appropriate new body is:
(a) in so far as the instrument relates to an asset or liability that has, because of section 254 or 256, become an asset or liability of the Commission - the Commission; and
(b) otherwise - the Commonwealth.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 259
Pending proceedings

SECT

259. (1) Subject to this Law, where, immediately before the commencement, proceedings to which the NCSC was a party (not being co-operative scheme proceedings) were pending in any court or tribunal of this jurisdiction, the Commonwealth is, after the commencement, substituted for the NCSC as a party to the proceedings and has the same rights in the proceedings as the NCSC had.


(2) A right of action in favour of or against the NCSC existing immediately before the commencement (not being a right of action arising under a co-operative scheme law) is, after the commencement, taken to be a right of action in favour of or against the Commonwealth.


(3) In this section:
"co-operative scheme law" means a relevant previous law of this or any other jurisdiction;
"co-operative scheme proceedings" means proceedings arising under a co-operative scheme law, including proceedings relating to trust assets of the NCSC.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 260
Certificates relating to assets, liabilities and instruments

SECT

260. (1) An authorised officer may certify, in writing, that:
(a) an asset or liability specified or described in the certificate became, because of section 254 or 256 or a corresponding law, an asset or liability of the Commission; or
(b) an asset or liability specified or described in the certificate became, because of section 256 or a corresponding law, an asset or liability of the Commonwealth; or
(c) an instrument specified or described in the certificate is an NCSC instrument.


(2) A certificate under subsection (1) or a corresponding law is, in all courts and for all purposes, evidence of the matter stated in the certificate.


(3) Where a document purports to be a certificate under subsection (1) or a corresponding law signed by a person purporting to be an authorised officer, judicial notice is to be taken of the signature of the person and of the fact that the person is or was an authorised officer.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 261
Exemption from taxation

SECT

261. An instrument is not subject to stamp duty or any other tax under an Act, or any other law, of this jurisdiction if an authorised officer certifies, in writing, that the instrument was made or given because of, or for a purpose connected with or arising out of, the operation of this Part or a corresponding law.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 262
Pending proceedings etc. by or against the NCSC

SECT

262. (1) Where, immediately before the commencement, co-operative scheme proceedings to which the NCSC was a party were pending in any court or tribunal, the Commission is, after the commencement, substituted for the NCSC as a party to the proceedings and has the same rights in the proceedings as the NCSC had.


(2) A right of action in favour of or against the NCSC existing immediately before the commencement (being a right of action arising under a relevant previous law of this jurisdiction) is, after the commencement, taken to be a right of action in favour of or against the Commission.


(3) In this section:
"co-operative scheme proceedings" means proceedings arising under a relevant previous law of this jurisdiction, including proceedings relating to trust assets of the NCSC.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - PART 17
PART 17 - COMMENCEMENT AND APPLICATION OF CERTAIN
AMENDMENTS OF THE ASC LAW

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 1
Division 1 - Preliminary

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 263
Meaning of "ASC Law"

SECT

263. In this Part:
"ASC Law" means the provisions of the Australian Securities Commission Act 1989 as they have effect as the ASC Law of this jurisdiction.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 264
Meaning of "amendment of the ASC Law"

SECT

264. In this Part, a reference to an amendment of the ASC Law, or of a provision of the ASC Law, is a reference to a change to the ASC Law, or to that provision, that results from an amendment of the Australian Securities Commission Act 1989.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - DIVISION 2
Division 2 - Amendments made by the Corporations
Legislation Amendment Act 1994

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 265
Meaning of "Amending Act"

SECT

265. In this Division:
"Amending Act" means the Corporations Legislation Amendment Act 1994.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 266
Schedule 4 - application of amendments made by Part 1 of the Schedule

SECT

266. The amendments of the ASC Law made by Part 1 of Schedule 4 to the Amending Act apply to inquiries begun after the commencement of those amendments.

AUSTRALIAN SECURITIES COMMISSION ACT 1989 - SECT 267
Schedule 5 - application of amendments made by Part 2 of the Schedule

SECT

267. The amendments of the ASC Law made by Part 2 of Schedule 5 to the Amending Act apply to decisions made after the commencement of those amendments.