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Pooled Development Funds Act 1992

  • - C2007C00622
  • In force - Superseded Version
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Act No. 100 of 1992 as amended, taking into account amendments up to Act No. 164 of 2007
An Act about pooled development funds, and for related purposes
Administered by: Innovation, Industry, Science and Research
Registered 09 Oct 2007
Start Date 27 Sep 2007
End Date 09 Dec 2008
Table of contents.

Pooled Development Funds Act 1992

Act No. 100 of 1992 as amended

This compilation was prepared on 5 October 2007
taking into account amendments up to Act No. 164 of 2007

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Object of the Act................................................................................ 1

4............ Interpretation...................................................................................... 1

4A......... Definition of widely‑held complying superannuation fund................. 6

4B......... Application of the Criminal Code...................................................... 7

Part 3—Becoming a PDF                                                                                                    8

10.......... How a company becomes a PDF....................................................... 8

11.......... Application for registration declaration.............................................. 8

12.......... Further information may be requested............................................. 10

13.......... Period within which registration application to be decided.............. 10

14.......... Deciding a registration application................................................... 10

15.......... Applicant to be notified of decision................................................. 12

16.......... Board to publish notice of registration declaration in the Gazette.... 12

17.......... A PDF’s approved investment plan................................................ 12

18.......... Conditions of registration declaration............................................... 13

Part 4—Regulation of PDFs                                                                                           15

Division 1—Making investments                                                                        15

19.......... Investments to be in accordance with this Division......................... 15

20.......... First kind of allowed investment: acquiring shares........................... 15

20A....... Second kind of allowed investment: acquiring non‑transferable options 17

20B....... Third kind of allowed investment: lending money to existing investee companies 17

21.......... Intended use by investee company of money invested by PDF...... 17

22.......... Investee company must not be a PDF............................................. 19

23.......... Primary activity of investee company must not be an excluded activity                19

24.......... Limit on size of investee company................................................... 19

25.......... PDF not to commit more than 30% of its committed capital to investee company               21

27.......... Amount invested in investee company to be at least 10% of its paid‑up capital   22

27A....... PDF to notify Board of initial investments...................................... 22

28.......... Provisions relating to approvals by Board....................................... 22

28A....... Indirect investments......................................................................... 23

Division 2—Other provisions regulating the capital structure and activities of PDFs  24

29.......... PDF to carry on a business of making and holding PDF investments 24

30.......... Restrictions on raising money etc..................................................... 24

31.......... Limit on shareholding in a PDF........................................................ 25

32.......... Timetable for investing funds raised by PDF................................... 26

32A....... PDFs may merge.............................................................................. 28

Division 3—Board’s powers to give directions                                            29

33.......... PDF to comply with directions in relation to its approved investment plan          29

34.......... PDF to comply with directions if investee company’s primary activity is an excluded activity           29

35.......... PDF to comply with other directions.............................................. 30

36.......... Shareholders to comply with directions about shareholdings in PDFs 31

37.......... Board to advise of reasons for giving directions............................... 31

Division 4—Consequences of contravention of this Part                        32

38.......... Acts in contravention of Part not invalid......................................... 32

Part 5—Monitoring compliance                                                                                    33

39.......... Board to monitor compliance........................................................... 33

40.......... Board to consider compliance on receipt of annual return............... 33

41.......... Annual return by PDF...................................................................... 33

42.......... PDF to notify Board of events affecting information previously given  35

43.......... Board may require certain persons to provide information or produce documents                37

44.......... Board may request persons to provide information or produce documents           37

Part 6—Revocation of registration declarations                                                 38

45.......... Automatic revocation if PDF is not an eligible corporation............. 38

46.......... Revocation on application by PDF.................................................. 38

47.......... Revocation at discretion of Board.................................................... 38

48.......... Board to publish notice of revocations in the Gazette...................... 39

49.......... Company to notify its shareholders if it ceases to be a PDF........... 39

Part 7—Offences relating to PDFs                                                                             40

50.......... Criminal consequences of contravening certain provisions.............. 40

51.......... Other offences.................................................................................. 41

Part 7A—Investments by venture capital entities                                             42

52A....... Registration of venture capital entities............................................. 42

52B....... Period within which application must be decided............................ 43

52C....... Annual return by venture capital entities......................................... 43

52D....... Revocation at discretion of Board.................................................... 44

Part 8—Review of decisions                                                                                           45

53.......... Notification of certain decisions....................................................... 45

54.......... Notification of right to seek internal review..................................... 45

55.......... Internal review of decisions.............................................................. 45

56.......... Review of decisions by Administrative Appeals Tribunal.............. 47

Part 10—Miscellaneous                                                                                                    48

70.......... Board to provide information about PDFs on request..................... 48

71.......... Secrecy.............................................................................................. 48

76.......... Regulations....................................................................................... 51

Notes                                                                                                                                            53


An Act about pooled development funds, and for related purposes

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Pooled Development Funds Act 1992.

2  Commencement [see Note 1]

                   This Act commences on the day on which it receives the Royal Assent.

3  Object of the Act

             (1)  The object of this Act is to develop, and demonstrate the potential of, the market for providing patient equity capital (including venture capital) to small or medium‑sized Australian enterprises that carry on eligible businesses.

             (2)  To achieve this object, the Act establishes a scheme under which companies that provide that kind of capital can become pooled development funds (PDFs), which entitles them to more competitive tax treatment.

4  Interpretation

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

ADI (authorised deposit‑taking institution) means:

                     (a)  a body corporate that is an ADI for the purposes of the Banking Act 1959; or

                     (b)  the Reserve Bank of Australia; or

                     (c)  a bank constituted by a law of a State or internal Territory.

AFOF means an Australian venture capital fund of funds within the meaning of subsection 118‑410(3) of the Income Tax Assessment Act 1997.

approved investment plan, in relation to a PDF, has the meaning given by subsection 17(2).

Board means Innovation Australia, established by section 6 of the Industry Research and Development Act 1986.

Chairperson means the Chairperson of the Board.

committee means a committee appointed under section 22 of the Industry Research and Development Act 1986.

company means a company that is incorporated, or taken to be incorporated, under the Corporations Act 2001 and that has a share capital.

de facto spouse, in relation to a person, means an individual of the opposite sex to that person who is living with that person as his or her spouse on a genuine domestic basis although not legally married to that person.

director, in relation to a body corporate, means a person who is a director of the body for the purposes of the Corporations Act 2001.

eligible business means a business that does not consist, or consist primarily, of an excluded activity.

eligible corporation means a body corporate that is, for the purposes of paragraph 51(20) of the Constitution, a trading corporation, or a financial corporation, formed within the limits of the Commonwealth.

ESVCLP means an early stage venture capital limited partnership within the meaning of subsection 118‑407(4) of the Income Tax Assessment Act 1997.

excluded activity means a prescribed activity.

executive officer, in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned, or takes part, in the management of the body.

give information to the Board has the meaning given by subsection 4(8) of the Industry Research and Development Act 1986.

hold, in relation to shares, has the meaning given by subsection (4).

investment manager, in relation to a company, means:

                     (a)  an eligible corporation that is engaged to supply investment management services to the company; or

                     (b)  an eligible corporation that is a member of a partnership that is so engaged; or

                     (c)  an officer of an eligible corporation that is so engaged or is such a member; or

                     (d)  a person (other than an eligible corporation) who is a member or employee of such a partnership; or

                     (e)  a person (other than an eligible corporation) who is engaged to supply (otherwise than as an officer of the company) investment management services to the company; or

                      (f)  an employee of a natural person of a kind referred to in paragraph (e); or

                     (g)  an officer of a body corporate (other than an eligible corporation) that is a person of a kind referred to in paragraph (d) or (e).

life office means:

                     (a)  a body corporate that is registered under the Life Insurance Act 1995; or

                     (b)  a public authority:

                              (i)  that is constituted by a law of a State or internal Territory; and

                             (ii)  that carries on life insurance business within the meaning of section 11 of the Life Insurance Act 1995.

limited partnership has the same meaning as in the Income Tax Assessment Act 1997.

member, except in relation to a partnership, means a member of the Board.

object of this Act means the object set out in subsection 3(2).

officer, in relation to a body corporate, means a director, secretary, executive officer or employee of the company.

paid includes credited as paid.

PDF (pooled development fund) means a company in relation to which a registration declaration is in force.

PDF constitution requirements has the meaning given by subsection (3).

PDF investment means an investment made in accordance with Division 1 of Part 4.

permitted short‑term borrowing means a borrowing of money that is made:

                     (a)  because of temporary cash flow problems; and

                     (b)  solely for temporary purposes (other than the purpose of repaying other money borrowed for temporary purposes).

person affected, in relation to a reviewable decision, means the company, PDF or person referred to in the relevant paragraph of the definition of reviewable decision.

produce a document to the Board has the meaning given by subsection 4(8) of the Industry Research and Development Act 1986.

registration application means an application under section 11 that was made before the day on which Part 4 of Schedule 8 to the Tax Laws Amendment (2007 Measures No. 2) Act 2007 commenced.

registration declaration means a declaration under section 14 that a company is registered as a PDF.

relevant officer, in relation to a company, means:

                     (a)  a director of the company; or

                     (c)  any other person who, as an officer of the company, supplies investment management services to the company.

resident investment vehicle has the same meaning as in the Income Tax Assessment Act 1997.

reviewable decision means a decision:

                     (a)  under section 14 to refuse to make a registration declaration in relation to a company; or

                     (b)  under section 17 to refuse to approve a variation of a PDF’s approved investment plan; or

                     (c)  under paragraph 20(1)(b), subsection 20(2), 23(1), 24(2) or 25(1), or section 27, to refuse to give an approval in relation to an investment proposed to be made by a PDF; or

                     (d)  under paragraph 29(2)(b) to refuse to give an approval to a PDF entering into a transaction; or

                     (e)  under subsection 31(1) to refuse to give an approval in relation to a person’s shareholding in a PDF; or

                      (f)  under subsection 32(1) to refuse to make, in relation to a payment day (within the meaning of that subsection) of a PDF, a determination for the purposes of paragraph (a) of the definition of investment period or required percentage in that subsection; or

                     (g)  under subsection 33(2), 34(1), 35(1) or 36(1) to give a person a direction; or

                     (h)  under section 47 to revoke a registration declaration in relation to a company; or

                      (i)  under section 52A to refuse to register an entity under Part 7A; or

                      (j)  under section 52D to revoke such a registration.

shareholders’ funds, in relation to a company, means the total of:

                     (a)  the amount of the company’s share capital (but not including any amounts remaining unpaid on the shares); and

                     (d)  any amount held in any other capital reserve of the company; and

                     (e)  any amount held in any revenue reserve of the company; and

                      (f)  the amount of any undistributed profits of the company.

unregulated investment means an investment of a prescribed kind.

VCLP means a venture capital limited partnership within the meaning of subsection 118‑405(2) of the Income Tax Assessment Act 1997.

venture capital entity has the same meaning as in the Income Tax Assessment Act 1997.

venture capital equity has the same meaning as in the Income Tax Assessment Act 1997.

widely‑held complying superannuation fund has the meaning given by section 4A.

             (2)  The effect that a provision of this Act has because of a paragraph of the definition of investment manager in subsection (1) is additional to, and does not prejudice, the effect that:

                     (a)  the provision has because of any other paragraph of that definition; or

                     (b)  any other provision of this Act has because of the first‑mentioned paragraph.

             (3)  For the purposes of this Act, a company’s constitution satisfies the PDF constitution requirements if, and only if, it:

                     (a)  prohibits the division of the company’s shares into classes; and

                     (b)  prohibits the issue or allotment of a share in the company, or a unit (as defined in section 9 of the Corporations Act 2001) of such a share, unless the share is an ordinary share; and

                     (c)  prohibits the issue or allotment of a share in the company, or a unit (as so defined) of such a share, if the rights attached to the share would be different from the rights attached to other shares in the company that are still on issue.

             (4)  For the purposes of this Act, a person who subscribes for or buys shares is taken to hold the shares from the time of the subscription or purchase until the person no longer has in the shares an interest of any kind (whether legal or equitable).

4A  Definition of widely‑held complying superannuation fund

             (1)  For the purposes of this Act, a fund is a widely‑held complying superannuation fund if:

                     (a)  it has 5 or more members; and

                     (b)  it satisfies the test in either subsection (2) or (3).

Resident funds

             (2)  A fund satisfies the test in this subsection at a particular time during a year of income of the fund (within the meaning of the Income Tax Assessment Act 1936) if it is a complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income.

Non‑resident funds

             (3)  A fund satisfies the test in this subsection if:

                     (a)  it is a superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and

                     (b)  it is a foreign superannuation fund (within the meaning of the Income Tax Assessment Act 1997); and

                     (c)  it is established for the sole or principal purpose of providing retirement benefits for its members; and

                     (d)  it complies with the applicable laws of a foreign country that regulate funds established for that purpose.

4B  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences created by this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.


 

Part 3Becoming a PDF

  

10  How a company becomes a PDF

             (1)  A company becomes a PDF when a registration declaration made in relation to the company comes into force.

             (2)  A registration declaration:

                     (a)  comes into force:

                              (i)  on the day when it is made; or

                             (ii)  if it is expressed to take effect on a later day—on that later day; and

                     (b)  remains in force until it is revoked under Part 6.

11  Application for registration declaration

             (1)  A company may apply to the Board for a registration declaration to be made in relation to the company.

             (2)  An application must be in writing and must include the following information:

                     (a)  the name, address, occupation, qualifications and experience of each relevant officer of the applicant;

                     (b)  for each person or partnership (if any) whom or that the applicant has engaged, or proposes to engage, to supply (otherwise than as an officer of the applicant) investment management services to the applicant:

                              (i)  the name and address of the person or partnership; and

                             (ii)  in the case of a natural person—the person’s occupation, qualifications and experience; and

                            (iii)  the name, address, occupation, qualifications and experience of each natural person who is supplying, or will supply, such services to the applicant:

                                        (A)  if the first‑mentioned person is a natural person—as an employee of the first‑mentioned person; or

                                        (B)  if the first‑mentioned person is a body corporate—as an officer of the body; or

                                        (C)  in the case of a partnership—as a member or employee of the partnership or as an officer of a body corporate that is such a member;

                     (c)  the applicant’s issued share capital and paid‑up share capital;

                     (d)  the capital‑raising plan that the applicant proposes to implement if it becomes a PDF;

                     (e)  the investment plan that the applicant proposes to implement if it becomes a PDF;

                      (f)  the address of the applicant’s registered office;

                     (g)  the name and address of, and number of shares in the applicant held by:

                              (i)  if there are not more than 10 shareholders in the applicant—each of those shareholders; or

                             (ii)  if there are more than 10 shareholders in the applicant—each of the 10 of those shareholders who hold the greatest number of shares in the applicant;

                     (h)  any other information that a determination in force under subsection (5) requires the application to include.

             (3)  An application may also include any other information that the applicant thinks is relevant.

             (4)  An application must be accompanied by a copy of the applicant’s constitution.

          (4A)  An application must not be made on or after the day on which Part 4 of Schedule 8 to the Tax Laws Amendment (2007 Measures No. 2) Act 2007 commenced.

             (5)  The Board may, for the purposes of paragraph (2)(h), determine, by writing signed by the Chairperson pursuant to a resolution of the Board, that specified information is to be included in registration applications.

             (6)  A determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

12  Further information may be requested

                   If the Board needs further information to decide a registration application, it may ask the applicant to provide the information.

13  Period within which registration application to be decided

             (1)  Subject to this section, the Board must decide a registration application within 60 days after receiving it.

             (2)  If the Board thinks that it will take longer to decide the application, the Board may extend, by up to 60 days, the period for deciding it.

             (3)  An extension must be made by written notice given to the applicant within 60 days after the Board receives the application.

             (4)  If the Board makes an extension, the Board must decide the application within the extended period.

             (5)  If the Board has not decided the application by the end of the day by which the Board is required to decide it, the Board is taken to have decided, at the end of that day, to refuse the application.

14  Deciding a registration application

             (1)  The Board must grant a registration application, and declare the applicant to be registered as a PDF, if the Board is satisfied that:

                     (a)  the applicant has complied, in relation to the application, with this Part and with any requests made by the Board under section 12; and

                     (b)  the applicant is an eligible corporation; and

                     (c)  the applicant’s investment plan (being the investment plan set out in the registration application or that plan as since varied in negotiations with the Board) is appropriate, having regard to:

                              (i)  the object of this Act; and

                             (ii)  the requirements of this Act relating to the making and holding of investments by a PDF; and

                     (d)  the capital‑raising plan set out in the registration application is appropriate, having regard to the requirements of this Act relating to the raising of capital by a PDF; and

                     (e)  the applicant is reasonably likely to be able to implement those plans and comply with this Act; and

                      (f)  granting the application will help achieve the object of this Act; and

                     (g)  the applicant’s capital structure is consistent with the requirements of this Act relating to a PDF’s capital structure; and

                     (h)  the applicant’s constitution satisfies the PDF constitution requirements; and

                      (i)  section 31 will be complied with in relation to the applicant; and

                      (j)  the applicant holds no investments, other than unregulated investments; and

                     (k)  the applicant has not previously carried on business; and

                      (l)  the applicant has not previously derived assessable income within the meaning of the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997, otherwise than from holding or disposing of an unregulated investment; and

                    (m)  the applicant has not previously paid a dividend to any of its shareholders; and

                     (n)  if the applicant has previously raised capital:

                              (i)  the capital was raised for one or more of the following purposes:

                                        (A)  unless the applicant was incorporated on or after 1 July 1992—the applicant providing development capital to Australian businesses;

                                        (B)  meeting the applicant’s costs of becoming a PDF;

                                        (C)  meeting the applicant’s administrative expenses; and

                             (ii)  whatever the applicant has done by way of raising capital is consistent with the requirements of this Act relating to a PDF raising capital.

             (2)  For the purposes of paragraph (1)(k), the applicant is not taken to have carried on business merely because the applicant has:

                     (a)  raised capital by issuing ordinary shares; or

                     (b)  made, held, or disposed of, unregulated investments.

             (3)  In deciding whether it is satisfied as mentioned in subsection (1), the Board must have regard to the information provided to it by the applicant and may have regard to any other relevant information that is available to the Board.

             (4)  If the Board is not satisfied as mentioned in subsection (1), it must refuse the application.

15  Applicant to be notified of decision

             (1)  The Board must give the applicant written notice of its decision on a registration application as soon as practicable after the decision is made.

             (2)  If the decision is to refuse the application, the notice must also include a statement of the Board’s reasons for the decision.

             (3)  Subsection (2) does not apply in relation to a decision that is taken to have been made because of subsection 13(5).

             (4)  A failure to comply with subsection (1) or (2) in relation to a decision does not affect the validity of the decision.

16  Board to publish notice of registration declaration in the Gazette

             (1)  As soon as practicable after making a registration declaration, the Board must cause to be published in the Gazette a notice that states the name of the company and advises that the company became, or will become, as the case requires, a PDF on a specified day.

             (2)  A failure to comply with subsection (1) in relation to a registration declaration does not affect the validity of the declaration.

17  A PDF’s approved investment plan

             (1)  A resolution declaring a company to be registered as a PDF must specify a document that sets out the investment plan in relation to which the Board is satisfied as mentioned in paragraph 14(1)(c).

             (2)  For the purposes of this Act, a PDF’s approved investment plan is:

                     (a)  the investment plan set out in the document that the PDF’s registration declaration specifies under subsection (1); or

                     (b)  if that plan has been varied under this section on one or more occasions, that plan as so varied.

             (3)  A PDF may, by writing, request the Board to approve a specified variation of the PDF’s approved investment plan.

             (4)  A variation of a plan may take the form of revoking the plan and replacing it with another plan.

             (5)  A request must state why the PDF wants the variation.

             (6)  If the Board is satisfied that a requested variation is appropriate, having regard to:

                     (a)  the object of this Act; and

                     (b)  the requirements of this Act relating to the making and holding of investments by PDFs;

the Board must grant the request and approve the variation.

             (7)  If the Board approves a variation of a PDF’s approved investment plan, that plan is varied accordingly on the giving of the approval.

             (8)  If the Board is not satisfied as mentioned in subsection (6) in relation to a request, the Board must refuse the request.

             (9)  The Board must give a PDF that has made a request written notice of its decision on the request as soon as practicable after the decision is made.

           (10)  If the Board’s decision is to refuse a request, the notice must also include a statement of the Board’s reasons for its decision.

           (11)  A failure to comply with subsection (9) or (10) in relation to a decision does not affect the validity of the decision.

18  Conditions of registration declaration

                   A PDF’s registration declaration is subject to the following conditions:

                     (a)  a condition that the following be complied with by, and in relation to, the PDF:

                              (i)  this Act;

                             (ii)  any direction given, or requirement made, by the Board under this Act;

                            (iii)  any condition to which an approval given, or determination made, by the Board under this Act is subject;

                     (b)  a condition that the PDF’s constitution:

                              (i)  satisfies the PDF constitution requirements; and

                             (ii)  be complied with in so far as it prohibits as mentioned in subsection 4(3);

                     (c)  a condition that the PDF not reduce its share capital, or buy shares in itself, within 2 years after becoming a PDF or merging with another PDF as mentioned in section 32A.


 

Part 4Regulation of PDFs

Division 1Making investments

19  Investments to be in accordance with this Division

             (1)  A PDF must not make an investment, other than an unregulated investment, except in accordance with this Division.

             (2)  There are 3 kinds of investment that a PDF is allowed to make under this Division:

                     (a)  subscribing for or buying shares (see section 20);

                     (b)  acquiring non‑transferable options to buy shares (see section 20A);

                     (c)  lending money to companies (see section 20B).

             (3)  The other sections of this Division (sections 21 to 28A) apply to each of those kinds of investment.

Note:          In particular, section 27 provides that, unless the Board otherwise approves, immediately after an investment of any of the above kinds is made, the total of all amounts paid on the shares in the investee company held by the PDF must be at least 10% of the total of all amounts paid on the issued shares in the investee company. (This means that the PDF must hold at least 10% of the paid‑up share capital in the investee company before the PDF can acquire non‑transferable options in the company or lend it money.)

20  First kind of allowed investment: acquiring shares

             (1)  A PDF may make an investment by subscribing for or buying:

                     (a)  ordinary shares in a company (in this Division called the investee company); or

                     (b)  some other kind of shares in a company (in this Division also called the investee company) that the Board approves the PDF investing in.

             (2)  Unless the Board otherwise approves, the shares must not be pre‑owned shares.

             (3)  The Board may give an approval for the purposes of subsection (2) only if it is satisfied:

                     (a)  that it is in the investee company’s best interests for the person who holds the shares to which the investment relates to cease to hold shares in the investee company; and

                     (b)  that that person proposes to dispose of all shares in the investee company that the person holds; and

                     (c)  that the value of the investee company will be increased by the PDF acquiring the shares to which the investment relates; and

                     (d)  that either:

                              (i)  the PDF already holds other shares in the investee company, some or all of which are not pre‑owned shares; or

                             (ii)  the PDF will, in connection with acquiring the shares, acquire other shares in the investee company, some or all of which are not pre‑owned shares.

             (4)  A reference in this Part to all amounts paid on shares held by a PDF is, in so far as the shares are pre‑owned shares, a reference to:

                     (a)  the amount that the PDF paid for the shares; and

                     (b)  the amounts (if any) paid on the shares since the PDF acquired them.

             (5)  In this section:

pre‑owned shares means shares that were issued or allotted to a person other than the PDF, but does not include any such shares that:

                     (a)  were issued:

                              (i)  to an underwriter or sub‑underwriter of the share issue; or

                             (ii)  to a person for the purpose of being offered for sale; and

                     (b)  were still held by the underwriter, sub‑underwriter or person immediately before being acquired by the PDF.

20A  Second kind of allowed investment: acquiring non‑transferable options

             (1)  A PDF may make an investment by acquiring an option to subscribe for or buy shares in a company (in this Division also called the investee company).

Note:          However, section 27 provides that, unless the Board otherwise approves, a PDF cannot make such an investment unless it first holds shares in the investee company. The total of all amounts paid on those shares must be at least 10% of the total of all amounts paid on the issued shares in the investee company.

             (2)  The option must be exercisable only by the PDF. It must not be capable of being transferred to another person.

             (3)  If the PDF later wishes to exercise the option by subscribing for or buying any of those shares, it must comply with section 20 and the other provisions of this Division that relate to section 20 investments: the exercise of the option is treated as a new investment that is separate from the acquisition of the option.

20B  Third kind of allowed investment: lending money to existing investee companies

             (1)  A PDF may make an investment by lending money to a company (in this Division also called the investee company) under an agreement with the investee company.

Note:          However, section 27 provides that, unless the Board otherwise approves, a PDF cannot make such an investment unless it first holds shares in the investee company. The total of all amounts paid on those shares must be at least 10% of the total of all amounts paid on the issued shares in the investee company.

             (2)  Immediately after the agreement is entered into, the total of the outstanding amounts of loans that the PDF has made (other than the amounts of unregulated investments) must not exceed 20% of the shareholders’ funds of the PDF.

21  Intended use by investee company of money invested by PDF

             (1)  The PDF must believe, on reasonable grounds, that:

                    (aa)  if the investment is covered by section 20 (shares)—the shares concerned are being, or were, issued or allotted for the sole or principal purpose of raising money; or

                    (ab)  if the investment is covered by section 20A (options)—the money paid as consideration for the option concerned is being raised solely or principally; or

                    (ac)  if the investment is covered by section 20B (loans)—the loan money concerned is being borrowed solely or principally;

for use in doing one or more of the following:

                     (a)  establishing an eligible business carried on, or to be carried on, by the investee company, whether alone or together with any other person or persons;

                     (b)  substantially expanding:

                              (i)  the production capacity; or

                             (ii)  the capacity to supply services;

                             of an established eligible business so carried on;

                     (c)  substantially expanding existing markets, or developing substantial new markets, for goods or services supplied in the course of an established eligible business so carried on.

             (2)  If the investment is authorised by a resolution of the PDF’s directors, the PDF is taken to believe as mentioned in subsection (1) if, and only if, each director who voted in favour of the resolution so believed when the resolution was passed.

             (3)  If the investment is not authorised by a resolution of the PDF’s directors, the PDF is taken to believe as mentioned in subsection (1) if, and only if:

                     (a)  at least one of the following subparagraphs applies to each person who is a director of the PDF at the time when the investment is made:

                              (i)  the person believes as mentioned in subsection (1) at that time;

                             (ii)  the person believes at that time, on reasonable grounds, that a competent and reliable person:

                                        (A)  is responsible for ensuring that investments by the PDF (other than unregulated investments) are made in accordance with this Division; and

                                        (B)  is fulfilling that responsibility; and

                     (b)  each person (whether or not an officer of the PDF) who is at that time responsible for so ensuring believes at that time, on reasonable grounds, as mentioned in subsection (1).

             (4)  This section does not apply to an investment (including the acquisition of an option) that relates to pre‑owned shares within the meaning of section 20.

22  Investee company must not be a PDF

             (1)  The investee company must not be a PDF.

             (2)  However, nothing in this Division prevents a PDF from making an investment that is allowed by section 32A (which deals with mergers of PDFs).

23  Primary activity of investee company must not be an excluded activity

             (1)  Unless the Board otherwise approves, the investee company’s primary activity must not be an excluded activity.

             (2)  The Board may give an approval for the purposes of subsection (1) only if:

                     (a)  the Board is satisfied that the investee company intends to change its primary activity to an activity that is not an excluded activity; or

                     (b)  the PDF already holds other shares in the investee company and the Board is satisfied that it is desirable that the investment be made in order to protect the PDF’s existing investment in the investee company.

24  Limit on size of investee company

             (1)  If the PDF does not already hold other shares in the investee company, the total value of the investee company’s assets, as determined in accordance with this section, must not exceed $50 million.

             (2)  If the PDF already holds other shares in the investee company, the total value of the investee company’s assets, as determined in accordance with this section, must not exceed $50 million unless the Board otherwise approves.

             (3)  The Board may give an approval for the purposes of subsection (2) only if it is satisfied that it is desirable that the investment be made (in spite of the value of the investee company’s assets) in order to protect the PDF’s existing investment in the investee company.

             (4)  Subject to subsections (5) and (6), for the purposes of this section, the total value of the investee company’s assets is the total value of its assets (both current and non‑current) as shown in the last audited accounts prepared in relation to the company for the purposes of Division 4 of Part 3.6 of the Corporations Act 2001 before the investment is made.

             (5)  If:

                     (a)  no audited accounts of the kind referred to in subsection (4) have been so prepared within the period of 12 months ending when the investment is made; or

                     (b)  the last such audited accounts so prepared relate to a period that ended more than 18 months before the investment is made;

then:

                     (c)  the PDF must not make the investment unless it first obtains an audited statement showing the total value of the investee company’s assets as at a time not more than 12 months before the investment is made; and

                     (d)  for the purposes of this section, the total value of the investee company’s assets is the total value as shown in that statement.

             (6)  If the PDF has reason to believe that the last audited accounts of the kind referred to in subsection (4) do not accurately reflect the total value of the investee company’s assets, then:

                     (a)  subject to subsection (7), the PDF may, before making the investment, obtain an audited statement showing the total value of the investee company’s assets as at a time:

                              (i)  after those last audited accounts were prepared; and

                             (ii)  not more than 12 months before the investment is made; and

                     (b)  if the PDF obtains such a statement, then, for the purposes of this section, the total value of the investee company’s assets is the total value as shown in that statement.

             (7)  The PDF must not make the investment without first obtaining a statement as mentioned in subsection (6) if an officer or investment manager of the PDF:

                     (a)  performs duties in connection with the making of the investment; and

                     (b)  has reason to believe that, since the last audited accounts of the kind referred to in subsection (4) were prepared, the total value of the investee company’s assets has, or may have, increased to an amount that exceeds $50 million.

             (8)  A reference in subsection (5) or (6) to an audited statement is a reference to a statement audited by a person or firm:

                     (a)  who or that is appointed as the investee company’s auditor in accordance with the Corporations Act 2001; or

                     (b)  who or that is eligible to consent to being so appointed.

25  PDF not to commit more than 30% of its committed capital to investee company

             (1)  Unless the Board otherwise approves, the investment must be such that, immediately after it is made, the total of:

                     (a)  all amounts paid on the shares in the investee company held by the PDF; and

                     (b)  all amounts remaining unpaid on those shares; and

                    (ba)  all amounts the PDF has paid to acquire options in the investee company that the PDF has not yet exercised; and

                    (bb)  all amounts the PDF has lent to the investee company that remain outstanding;

does not exceed 30% of the total of:

                     (c)  the shareholders’ funds of the PDF; and

                     (d)  all amounts remaining unpaid on the issued shares in the PDF.

             (2)  The Board must not give an approval under subsection (1) if the Board is satisfied that the investment is connected with a scheme or proposed scheme to which Part IVA of the Income Tax Assessment Act 1936 applies or would apply, as the case requires.

             (3)  An expression used in subsection (2) of this section and in Part IVA of the Income Tax Assessment Act 1936 has the same meaning in that subsection as it has in that Part.

27  Amount invested in investee company to be at least 10% of its paid‑up capital

                   Unless the Board otherwise approves, the investment must be such that, immediately after it is made, the total of all amounts paid on the shares in the investee company held by the PDF is at least 10% of the total of all amounts paid on the issued shares in the investee company.

27A  PDF to notify Board of initial investments

                   As soon as practicable, and in any event within 30 days, after a PDF invests in a particular investee company for the first time, the PDF must give the Board a written notice setting out full particulars of the investment.

28  Provisions relating to approvals by Board

             (1)  An approval for the purposes of an approval provision:

                     (a)  must be given before the investment is made; and

                     (b)  may be given subject to one or more of the following:

                              (i)  a condition in accordance with which the investment must be made;

                             (ii)  a condition that must be complied with at or before the time when the investment is made.

             (2)  If an approval for the purposes of an approval provision is given as mentioned in paragraph (1)(b), the investment must not be made unless the condition or conditions are complied with.

          (2A)  An approval for the purposes of subsection 25(1) must be given subject to a condition that, at the end of a specified period, the total of:

                     (a)  all amounts paid on the shares in the investee company held by the PDF; and

                     (b)  all amounts remaining unpaid on those shares;

must not exceed 30% of the total of:

                     (c)  the shareholders’ funds of the PDF; and

                     (d) all amounts remaining unpaid on the issued shares in the PDF.

          (2B)  A PDF contravenes this subsection if:

                     (a)  an approval is given for the purposes of subsection 25(1); and

                     (b)  the PDF makes the investment; and

                     (c)  the PDF engages in conduct; and

                     (d)  the PDF’s conduct contravenes the condition covered by subsection (2A).

             (3)  In this section:

approval provision means:

                     (a)  paragraph 20(1)(b); or

                     (b)  subsection 20(2); or

                     (c)  subsection 23(1); or

                     (d)  subsection 24(2); or

                    (da)  subsection 25(1); or

                     (e)  section 27.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

28A  Indirect investments

                   This Act applies to investments made by a PDF through one or more interposed entities as if the PDF had made the investments directly.


 

Division 2Other provisions regulating the capital structure and activities of PDFs

29  PDF to carry on a business of making and holding PDF investments

             (1)  A PDF must carry on a business of making and holding PDF investments.

             (2)  A PDF must not enter into a transaction except:

                     (a)  in the course of, or for the purposes of, carrying on a business of making and holding PDF investments; or

                    (aa)  as allowed by section 32A (which deals with mergers of PDFs); or

                     (b)  with the Board’s approval.

             (3)  Subsection (2) neither allows a PDF to do, nor empowers the Board to approve a PDF doing, something that the PDF is prohibited from doing under another provision of this Part.

             (4)  Subject to subsection (2), nothing in subsection (1) prevents a PDF from realising a particular investment.

             (5)  Nothing in this section prohibits a PDF from doing something in the course of, or for the purposes of:

                     (a)  providing management assistance to a company in which the PDF holds a PDF investment; or

                     (b)  complying with a direction under subsection 33(2), 34(1) or 35(1); or

                     (c)  making, holding, or disposing of, an unregulated investment.

30  Restrictions on raising money etc.

             (1)  A PDF must not:

                     (a)  borrow money; or

                     (b)  accept a deposit of money; or

                     (c)  issue a debenture; or

                     (d)  issue a convertible note; or

                     (e)  issue or make available an interest in a managed investment scheme.

             (2)  An expression has in subsection (1) the same meaning as in the Corporations Act 2001.

             (3)  Nothing in subsection (1) prohibits a PDF from making a permitted short‑term borrowing.

31  Limit on shareholding in a PDF

             (1)  Unless the Board otherwise approves, a person (not being an ADI, a life office or a widely‑held complying superannuation fund), together with associates (not being ADIs, life offices or widely‑held complying superannuation funds) of the person, must not hold more than 30% of the issued shares in a PDF.

             (2)  In this section:

associate, in relation to a person, means:

                     (a)  a parent or remoter lineal ancestor, a child or remoter issue, or a brother or sister, of the person (including a person who is such a relation by adoption); or

                     (b)  the spouse or a de facto spouse of the person; or

                     (c)  if the person is a company:

                              (i)  an officer of the company; or

                             (ii)  an officer of a company that is related to the first‑mentioned company; or

                            (iii)  a person who holds a substantial ownership interest in the company; or

                     (d)  an officer of a company of which the person is an officer; or

                     (e)  a person who is, because of this subsection, an associate of any other person who is an associate of the person (including a person who is an associate of the person by another application or other applications of this paragraph).

          (2A)  However, in determining whether a person is an associate of another person, disregard any connection those persons have with or through a PDF.

Example:    This means that, despite paragraph (1)(d), the fact that 2 persons are both officers of the same PDF does not make the officers associates of one another (although they would still be associates if they were both officers of the same non‑PDF company).

          (2B)  This section does not prevent a PDF from merging with another PDF as mentioned in section 32A.

             (3)  For the purposes of subparagraph (c)(ii) of the definition of associate in subsection (2), the question whether companies are related to each other is to be determined in the same manner as the question whether bodies corporate (within the meaning of the Corporations Act 2001) are related to each other is determined under the Corporations Act 2001.

             (4)  For the purposes of subparagraph (c)(iii) of the definition of associate in subsection (2), a person holds a substantial ownership interest in a company if the total of all amounts paid on the shares in the company in which the person holds interests equals or exceeds 15% of the total of all amounts paid on all shares in the company.

             (5)  For the purposes of subsection (4):

                     (a)  a person holds an interest in a share if the person has any legal or equitable interest in the share; and

                     (b)  without limiting the generality of paragraph (a), a person holds an interest in a share if the person, although not the registered holder of the share, is entitled to exercise, or control the exercise of, a right attached to the share, otherwise than because the person has been appointed as a proxy or representative to vote at a meeting of members of a company or of a class of its members.

32  Timetable for investing funds raised by PDF

             (1)  In this section:

investment period, in relation to a payment day of a PDF, means:

                     (a)  if, at the end of the period that would apart from this paragraph be the investment period after that payment day of the PDF, there is in force a determination by the Board that a specified longer period is the investment period after that payment day of the PDF—the specified period; or

                     (b)  if paragraph (a) does not apply and the regulations, as in force at the start of that day, prescribe a period (other than 5 years)—the prescribed period; or

                     (c)  otherwise—5 years.

payment day, in relation to a PDF, means a day on which an amount becomes due and payable to the PDF in respect of:

                     (a)  an issue or allotment of shares in the PDF; or

                     (b)  a call made in respect of such shares.

required amount, in relation to a payment day of a PDF, means an amount equal to the required percentage of the amount, or of the total of the amounts, that became due and payable to the PDF on that day as mentioned in the definition of payment day.

required percentage, in relation to a payment day of a PDF, means:

                     (a)  if:

                              (i)  at the end of the investment period after that payment day of the PDF there is in force a determination by the Board that a specified percentage is the required percentage for that payment day of the PDF; and

                             (ii)  the specified percentage is lower than the percentage that would, apart from this paragraph, be the required percentage for that payment day of the PDF;

                            the specified percentage; or

                     (b)  if paragraph (a) does not apply and the regulations, as in force at the start of that day, prescribe a percentage (other than 65%)—the prescribed percentage; or

                     (c)  otherwise—65%.

             (2)  Within the investment period after each payment day of a PDF, the PDF must invest, in accordance with Division 1, an amount or total equal to or greater than the required amount.

             (3)  In determining whether a PDF has complied with subsection (2) in relation to a particular day, so much of an amount invested as is taken into account in determining whether the PDF has complied with that subsection in relation to another day must be disregarded.

             (4)  However, if:

                     (a)  the amount, or the total of the amounts, that may be taken into account in determining whether a PDF has complied with subsection (2) in relation to a particular payment day of the PDF exceeds the required amount in relation to that payment day of the PDF; and

                     (b)  the first‑mentioned amount is, or amounts forming part of the first‑mentioned total are, invested during the investment period after another payment day of the PDF;

then, in determining whether the PDF has complied with subsection (2) in relation to the other day, so much of the first‑mentioned amount, or of the total of the amounts referred to in paragraph (b), as the case may be, as does not exceed the excess referred to in paragraph (a) is taken not to have been taken into account in determining whether the PDF complied with subsection (2) in relation to the day referred to in paragraph (a).

32A  PDFs may merge

             (1)  A PDF (the investor PDF) may acquire shares in another PDF (the investee PDF) if, and only if, the acquisition is part of a process of the 2 PDFs merging into one PDF.

             (2)  Any consideration given to the shareholders in the investee PDF for the acquisition must be in the form of:

                     (a)  shares in the investor PDF; or

                     (b)  a genuine dividend payable from any undistributed profits of the investee PDF;

or both.

             (3)  The investor PDF must give the Board written notice before making an acquisition allowed by this section.


 

Division 3Board’s powers to give directions

33  PDF to comply with directions in relation to its approved investment plan

             (1)  If the Board considers that a PDF is not implementing its approved investment plan, the Board may, by notice in writing to the PDF, ask the PDF to explain why it is not implementing that plan.

             (2)  If:

                     (a)  a PDF fails to give any explanation within 30 days after being given a notice; or

                     (b)  the Board considers that the PDF’s explanation is not acceptable;

the Board may, by notice in writing to the PDF, direct the PDF to take such action relating to the making, holding or disposal of investments (being action that is consistent with this Act) as the Board thinks appropriate, having regard to:

                     (c)  the PDF’s approved investment plan; and

                     (d)  the PDF’s explanation (if any); and

                     (e)  the PDF’s past investment activities and present investments; and

                      (f)  the object of this Act; and

                     (g)  any other relevant matter.

             (3)  A direction must specify a reasonable period within which it must be complied with.

             (4)  A PDF must, within the specified period, comply with a direction given to it.

34  PDF to comply with directions if investee company’s primary activity is an excluded activity

             (1)  If the Board is satisfied that:

                     (a)  a PDF holds shares in a company; and

                     (b)  the primary activity of the company is an excluded activity;

the Board may, by notice in writing to the PDF, direct the PDF to take such action in relation to disposal of the shares as the Board thinks appropriate, having regard to:

                     (c)  the PDF’s approved investment plan; and

                     (d)  the PDF’s past investment activities and present investments; and

                     (e)  the object of this Act; and

                      (f)  any other relevant matter.

             (2)  A direction must specify a reasonable period within which it must be complied with.

             (3)  A PDF must, within the specified period, comply with a direction given to it.

35  PDF to comply with other directions

             (1)  If the Board is satisfied that a PDF has contravened a direction provision, or a previous direction under this section, section 33 or section 34, the Board may, by notice in writing to the PDF, direct the PDF to take such action in relation to the contravention as the Board thinks appropriate, having regard to any relevant matter.

             (2)  A direction must specify a reasonable period within which it must be complied with.

             (3)  A PDF must, within the specified period, comply with a direction given to it.

             (4)  In this section:

direction provision means:

                     (a)  section 19; or

                     (b)  subsection 29(1); or

                     (c)  subsection 29(2); or

                     (d)  subsection 30(1); or

                     (e)  section 32.

36  Shareholders to comply with directions about shareholdings in PDFs

             (1)  If the Board is satisfied that a person holds shares in a PDF in contravention of section 31, the Board may, by notice in writing to the person, direct the person to dispose of a specified number of those shares.

             (2)  A direction must specify a reasonable period within which it must be complied with.

             (3)  A person must, within the specified period, comply with a direction given to the person.

37  Board to advise of reasons for giving directions

             (1)  The Board must include in a direction notice a statement of its reasons for giving the direction.

             (2)  A failure to comply with subsection (1) in relation to a notice does not affect the validity of the notice.

             (3)  In this section:

direction notice means a notice under subsection 33(2), 34(1), 35(1) or 36(1) giving a person a direction.


 

Division 4Consequences of contravention of this Part

38  Acts in contravention of Part not invalid

                   A contravention of this Part does not, of itself, invalidate an act or transaction.


 

Part 5Monitoring compliance

  

39  Board to monitor compliance

             (1)  The Board must, as and when required by section 40, consider whether a PDF has been complying with this Act.

             (2)  The Board may, at such other times as it considers appropriate, consider whether a PDF has been complying with this Act.

40  Board to consider compliance on receipt of annual return

             (1)  As soon as practicable after the Board receives a return under section 41 from a PDF, the Board must consider whether the PDF has been complying with this Act since:

                     (a)  if the Board has received from the PDF an earlier return, or earlier returns, under that section—the Board received the earlier return, or the last of the earlier returns, as the case requires; or

                     (b)  otherwise—the day on which the PDF became a PDF.

             (2)  In considering whether the PDF has been so complying, the Board must have regard to the information included in the first‑mentioned return and to any other relevant information that is available to the Board.

41  Annual return by PDF

             (1)  A PDF must, within 4 months after the end of each financial year, give the Board a written return that includes the following information:

                     (a)  the name, address, occupation, qualifications and experience of each relevant officer of the PDF;

                     (b)  for each person or partnership (if any) whom or that the PDF has engaged to supply (otherwise than as an officer of the PDF) investment management services to the PDF:

                              (i)  the name and address of the person or partnership; and

                             (ii)  in the case of a natural person—the person’s occupation, qualifications and experience; and

                            (iii)  the name, address, occupation, qualifications and experience of each natural person who is supplying such services to the PDF:

                                        (A)  if the first‑mentioned person is a natural person—as an employee of the first‑mentioned person; or

                                        (B)  if the first‑mentioned person is a body corporate—as an officer of the body; or

                                        (C)  in the case of a partnership—as a member or employee of the partnership or as an officer of a body corporate that is such a member;

                     (c)  full particulars of the investments (other than unregulated investments) held by the PDF at the end of the financial year;

                     (d)  full particulars of the making and disposal of investments (other than unregulated investments) by the PDF during the financial year;

                    (da)  for each of the PDF’s investee companies (within the meaning of Division 1 of Part 4), the proportion of the investee company’s issued share capital held by the PDF at the end of the financial year;

                    (db)  the amounts of all profits, gains or losses the PDF made during the financial year from each such investee company;

                    (dc)  the amounts of all unregulated investments held by the PDF at the end of the financial year;

                    (dd)  the amounts of all profits, gains or losses the PDF made during the financial year from unregulated investments;

                     (e)  the PDF’s approved investment plan;

                      (f)  full particulars of the capital raised by the PDF during the financial year;

                     (g)  the PDF’s issued share capital and paid‑up share capital;

                     (h)  the address of the registered office of the PDF;

                      (i)  the name and address of, and number of shares in the PDF held by:

                              (i)  if there are not more than 10 shareholders in the PDF—each of those shareholders; or

                             (ii)  if there are more than 10 shareholders in the PDF—each of the 10 of those shareholders who hold the greatest number of shares in the PDF;

                     (ia)  full particulars of the dividends the PDF paid to the shareholders in the PDF during the financial year;

                      (j)  any other information that a determination in force under subsection (3) requires the return to include.

             (2)  Information about a matter that a return must include because of paragraph (1)(a), (b), (e), (g), (h) or (i) is information about that matter as at the time when the return is given to the Board.

             (3)  The Board may, for the purposes of paragraph (1)(j), determine, by writing signed by the Chairperson pursuant to a resolution of the Board, that specified information is to be included in returns.

             (4)  A determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  If a PDF became a PDF during a financial year, a return need not include any information about its operations before it became a PDF.

42  PDF to notify Board of events affecting information previously given

             (1)  As soon as practicable, and in any event within 30 days, after a PDF knows of an event referred to in subsection (2), the PDF must give the Board a written notice setting out particulars of the event and, in the case of an event referred to in paragraph (2)(a), (d) or (g), the additional particulars referred to in subsection (3).

             (2)  These are the events:

                     (a)  a person becoming a relevant officer of the PDF;

                     (b)  a change in the name or address of a relevant officer of the PDF;

                     (c)  a person ceasing to be a relevant officer of the PDF;

                     (d)  the PDF engaging a person or partnership to supply (otherwise than as an officer of the PDF) investment management services to the PDF;

                     (e)  a change in the name or address of a person or partnership so engaged;

                      (f)  the end of such an engagement;

                     (g)  a natural person beginning to supply such services to the PDF:

                              (i)  as an employee of a natural person who is so engaged; or

                             (ii)  as an officer of a body corporate that is so engaged; or

                            (iii)  as a member or employee of a partnership that is so engaged, or as an officer of a body corporate that is such a member;

                     (h)  a change in the name or address of a natural person who supplies such services as mentioned in paragraph (g);

                      (i)  a natural person ceasing to supply such services as so mentioned;

                      (j)  a change in the PDF’s issued or paid‑up share capital;

                     (k)  a change in the address of the PDF’s registered office;

                      (l)  a change in the PDF’s constitution so that it no longer satisfied the PDF constitution requirement.

                    (m)  any other information that the PDF gave to the Board in connection with its registration application, or otherwise under this Act, ceasing to be correct, or being discovered to be incorrect;

                     (n)  a significant change affecting a matter to which such information relates.

             (3)  These are the additional particulars:

                     (a)  in the case of an event referred to in paragraph (2)(a) or
(g)—the person’s name, address, occupation, qualifications and experience;

                     (b)  in the case of an event referred to in paragraph (2)(d):

                              (i)  the name and address of the person or partnership; and

                             (ii)  in the case of a natural person—the person’s occupation, qualifications and experience.

43  Board may require certain persons to provide information or produce documents

             (1)  The Board may, for the purposes of this Act, require a PDF, or a present or former officer or investment manager of a PDF:

                     (a)  to provide the Board with information relating to the PDF or to any of the PDF’s past or present investments; or

                     (b)  to produce to the Board documents that so relate.

          (1A)  The Board may, for the purposes of this Act, require a resident investment vehicle, a venture capital entity or a present or former officer or investment manager of a resident investment vehicle or a venture capital entity:

                     (a)  to provide the Board with information relating to the resident investment vehicle or the venture capital entity; or

                     (b)  to produce to the Board documents that so relate.

             (2)  A requirement must be made by notice in writing given to the person of whom it is made.

             (3)  A requirement must specify a reasonable period within which it must be complied with.

             (4)  A person must, within the specified period, comply with a requirement made of the person.

44  Board may request persons to provide information or produce documents

                   The Board may, for the purposes of this Act, request a person to provide the Board with information, or to produce to the Board a document, relating to a PDF or to past or present investments of a PDF.


 

Part 6Revocation of registration declarations

  

45  Automatic revocation if PDF is not an eligible corporation

                   A PDF’s registration declaration is revoked, by force of this section, if at any time the PDF is not an eligible corporation.

46  Revocation on application by PDF

             (1)  A PDF may apply in writing to the Board to have its registration declaration revoked.

             (2)  The PDF must notify each of its shareholders, in writing, that it has made the application.

             (3)  The Board must revoke the registration declaration as soon as practicable after receiving the application.

47  Revocation at discretion of Board

             (1)  Subject to this section, the Board may revoke a PDF’s registration declaration if:

                     (a)  the Board is satisfied that a provision of this Act has been contravened by, or in relation to, the PDF; or

                     (b)  the Board is no longer satisfied that the PDF’s constitution satisfies the PDF constitution requirements; or

                     (c)  the Board is satisfied that a provision of the PDF’s constitution that prohibits as mentioned in subsection 4(3) has been contravened; or

                     (d)  the Board is satisfied that a condition of the PDF’s registration has been contravened by, or in relation to, the PDF.

             (2)  As soon as practicable after revoking a company’s registration declaration, the Board must give the company a notice that advises of the revocation and sets out the Board’s reasons for deciding to revoke the declaration.

             (3)  The Board must not revoke a registration declaration unless the Board:

                     (a)  by notice in writing given to the PDF, allows the PDF at least 14 days after the notice is given in which to make written submissions to the Board about the matters specified in the notice that, in the opinion of the Board, may constitute grounds for revoking the declaration; and

                     (b)  considers any such submissions.

             (4)  The reference in subsection (1) to a provision of this Act includes a reference to section 136.1, 137.1 or 137.2 of the Criminal Code, in so far as that section relates to this Act.

48  Board to publish notice of revocations in the Gazette

             (1)  As soon as practicable after the Board becomes aware that a company’s registration declaration has been revoked by force of section 45, the Board must cause to be published in the Gazette a notice that states the company’s name and advises that the company is no longer a PDF.

             (2)  As soon as practicable after the Board revokes a company’s registration declaration under section 46 or 47, the Board must cause to be published in the Gazette a notice that states the company’s name and advises that the company is no longer a PDF because its registration declaration was revoked on a specified day.

             (3)  A failure to comply with subsection (1) or (2) in relation to the revocation of a registration declaration does not affect the validity of the revocation.

49  Company to notify its shareholders if it ceases to be a PDF

                   As soon as practicable after a company knows that it has ceased to be a PDF, the company must notify each of its shareholders, in writing, of that fact.


 

Part 7Offences relating to PDFs

  

50  Criminal consequences of contravening certain provisions

             (1)  If a PDF contravenes a provision specified in the table:

                     (a)  the PDF is not guilty of an offence; but

                     (b)  each officer or investment manager of the PDF who is involved in the contravention is guilty of an offence punishable, on conviction, by a penalty not exceeding the one set out in the table in relation to that provision.

Penalties for contraventions of this Act

Item

Provision

Penalty

1

Section 19 (investments not made in accordance with Division 1 of Part 4 other than section 27A)

500 penalty units

2

Section 27A

50 penalty units

3

Subsection 28(2B)

500 penalty units

4

Subsection 29(1)

500 penalty units

5

Subsection 29(2)

500 penalty units

6

Subsection 30(1)

200 penalty units

7

Subsection 32(2)

100 penalty units

8

Subsection 33(4)

100 penalty units

9

Subsection 34(3)

50 penalty units

10

Subsection 35(3)

50 penalty units

11

Subsection 41(1)

50 penalty units

12

Subsection 42(1)

50 penalty units

13

Subsection 43(4)

50 penalty units

14

Subsection 46(2)

100 penalty units

             (2)  If a company that is an eligible corporation contravenes section 49:

                     (a)  the company is not guilty of an offence; but

                     (b)  each officer of the company who is involved in the contravention is guilty of an offence punishable, on conviction, by a fine not exceeding $10,000.

             (3)  For the purposes of subsections (1) and (2), a person is involved in a contravention if, and only if, the person:

                     (a)  has aided, abetted, counselled or procured the contravention; or

                     (b)  has induced, whether by threats or promises or otherwise, the contravention; or

                     (c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or

                     (d)  has conspired with others to effect the contravention.

             (4)  The effect that a provision has for the purposes of this section is additional to, and does not prejudice, the effect that the provision otherwise has (for example, for the purposes of section 47).

51  Other offences

             (1)  A person who contravenes subsection 36(3) is guilty of an offence punishable, on conviction, by a fine not exceeding $5,000.

             (2)  A person, not being a PDF, who contravenes subsection 43(4) is guilty of an offence punishable, on conviction, by a fine not exceeding $5,000.

             (3)  Subsection (1) or (2) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3), see subsection 13.3(3) of the Criminal Code.


 

Part 7AInvestments by venture capital entities

  

52A  Registration of venture capital entities

             (1)  A venture capital entity may apply to the Board for registration under this Part.

             (2)  An application must be given to the Board within 30 days after the venture capital entity makes its first investment in venture capital equity.

             (3)  An application must be in writing, and must include the following information:

                     (a)  the entity’s current residency status;

                     (b)  details of the entity’s tax exempt status in its country of residence;

                     (c)  details of the facts that qualify the entity as a foreign superannuation fund;

                     (d)  the address of the entity’s registered office;

                     (e)  the name and address of the first resident investment vehicle in which it has invested or proposes to invest and the industry in which it operates;

                      (f)  the amount of the investment and the date on which it was or is to be made;

                     (g)  the total value of the assets of the resident investment vehicle (worked out as mentioned in subsection 118‑510(3) of the Income Tax Assessment Act 1997) before the investment;

                     (h)  details of other investments that do not constitute venture capital equity the entity holds in the resident investment vehicle;

                      (i)  if the entity is the general partner or managing partner of a limited partnership referred to in subparagraph 118‑515(2)(b)(ii) of the Income Tax Assessment Act 1997—details of the partner’s interests in the assets of the partnership.

             (4)  The Board must decide to register the entity under this Part if the Board is satisfied that the information has been provided.

             (5)  If the Board registers an applicant under this Part, the Board must notify the applicant within 45 days of the application being made.

52B  Period within which application must be decided

             (1)  Subject to this section, the Board must decide an application for registration under this Part within 45 days after receiving it.

             (2)  If the Board thinks that it will take longer to decide the application, the Board may extend, by up to 45 days, the period for deciding it.

             (3)  An extension must be made by written notice given to the applicant within 45 days after the Board receives the application.

             (4)  If the Board makes an extension, the Board must decide the application within the extended period.

52C  Annual return by venture capital entities

             (1)  A registered venture capital entity must, within 3 months after the end of each financial year (30 June), give the Board a written return that includes the following information:

                     (a)  the entity’s current residency status;

                     (b)  details of the entity’s tax exempt status in its country of residence;

                     (c)  details of the facts that qualify it as a foreign superannuation fund;

                     (d)  details of:

                              (i)  investments the entity made during that year in resident investment vehicles; and

                             (ii)  investments in resident investment vehicles that the entity disposed of during that year; and

                            (iii)  investments the entity holds at the end of that year in resident investment vehicles;

                     (e)  the industries in which those vehicles operate;

                      (f)  if the entity is the general partner or managing partner of a limited partnership referred to in subparagraph 118‑515(2)(b)(ii) of the Income Tax Assessment Act 1997—details of the partner’s interests in the assets of the partnership.

             (2)  Information about a matter that a return must include because of paragraph (1)(a) or (b) is information about that matter as at the time when the return is given to the Board.

52D  Revocation at discretion of Board

             (1)  Subject to this section, the Board may revoke an entity’s registration under this Part if the Board is satisfied that the entity has failed to comply with section 52C.

             (2)  As soon as practicable after revoking an entity’s registration under this Part, the Board must give the entity a notice that advises of the revocation and sets out the Board’s reasons for deciding to revoke.

             (3)  The Board must not revoke a registration unless the Board:

                     (a)  by notice in writing given to the entity, allows the entity at least 14 days after the notice is given in which to make written submissions to the Board about the matters specified in the notice that, in the opinion of the Board, may constitute grounds for the revocation; and

                     (b)  considers any such submissions.

Part 8Review of decisions

  

53  Notification of certain decisions

             (1)  This section applies to a reviewable decision of a kind referred to in paragraph (c), (d), (e) or (f) of the definition of reviewable decision in subsection 4(1).

             (2)  As soon as practicable after making the decision, the Board must give the person affected by the decision a written notice advising the person of the decision and of the Board’s reasons for making it.

             (3)  A failure to comply with subsection (2) in relation to a reviewable decision does not affect the validity of the decision.

54  Notification of right to seek internal review

             (1)  A notice that is given to the person affected by a reviewable decision and advises that person of the decision must include a statement to the effect that the person may, under section 55, request the Board to reconsider the decision.

             (2)  For the purposes of subsection (1), a notice under subsection 33(2), 34(1), 35(1) or 36(1) giving a person a direction is taken to be a notice advising the person of the decision to give the direction.

             (3)  A failure to comply with subsection (1) in relation to a reviewable decision does not affect the validity of the decision.

55  Internal review of decisions

             (1)  The person affected by a reviewable decision may, if dissatisfied with the decision, by notice in writing given to the Board, request the Board to reconsider the decision.

             (2)  The request must not be made more than 21 days, or such longer period as the Board approves, after the person receives from the Board a notice advising of the decision.

             (3)  For the purposes of subsection (2), if the decision is to give a direction under subsection 33(2), 34(1), 35(1) or 36(1), the notice by which the direction is given is taken to be a notice advising of the decision.

             (4)  The request must set out the person’s reasons for making it.

             (5)  On receipt of the request, the Board must reconsider the decision and may confirm or revoke it, or vary it in such manner as the Board thinks fit.

             (6)  If the Board does not confirm, vary or revoke the decision before the end of the period of 60 days after the day on which the Board receives the request, the Board is taken, at the end of that period, to have confirmed the decision.

             (7)  As soon as practicable after the Board confirms, varies or revokes the decision, the Board must give the person a written notice that:

                     (a)  advises of the confirmation, variation or revocation of the decision; and

                     (b)  except in a case to which subsection (6) applies—advises of the Board’s reasons for confirming, varying or revoking the decision; and

                     (c)  in the case of a confirmation or variation of the decision—advises the person that the person may apply to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 for review of the decision as confirmed or varied.

             (8)  A failure to comply with subsection (7) in relation to the confirmation, variation or revocation of the decision does not affect the validity of the confirmation, variation or revocation.

             (9)  For the purposes of subsections (5), (6), (7) and (8) and section 56, if the Board revokes a decision and replaces it with another decision, the Board is taken to vary the first‑mentioned decision and not to revoke it, and the other decision is taken to be the first‑mentioned decision as varied.

56  Review of decisions by Administrative Appeals Tribunal

             (1)  Application may be made to the Administrative Appeals Tribunal for review of a reviewable decision of the Board that has been confirmed or varied under section 55.

             (2)  An application may only be made by the person affected by the decision.


 

Part 10Miscellaneous

  

70  Board to provide information about PDFs on request

             (1)  A person may, by writing, request the Board:

                     (a)  to provide the person with a list of all PDFs; or

                     (b)  to advise the person whether a specified company is a PDF.

             (2)  The Board must comply with a request as soon as practicable after receiving it.

71  Secrecy

             (1)  A person to whom this section applies must not, either directly or indirectly:

                     (a)  make a record of protected information or a copy of a protected document; or

                     (b)  communicate to a person any protected information concerning another person; or

                     (c)  produce to a person a protected document that includes information concerning another person;

unless the record or copy is made, the information is communicated, or the document is produced, as the case may be:

                     (d)  under or for the purposes of this Act or the Venture Capital Act 2002; or

                     (e)  in the performance of the person’s functions or duties, as a person to whom this section applies, under or in relation to this Act.

Penalty:  Imprisonment for 2 years.

             (2)  Subsection (1) does not prohibit a person to whom this section applies from communicating protected information, or producing a protected document, to:

                     (a)  the Commissioner of Taxation; or

                     (b)  a court or tribunal in connection with proceedings under this Act or a tax law.

             (3)  If protected information is communicated, or a protected document is produced, under paragraph (2)(a) to the Commissioner of Taxation, the information, or the information contained in the document, is taken, for the purposes of section 16 of the Income Tax Assessment Act 1936, to be information acquired by the Commissioner as mentioned in the definition of officer in subsection (1) of that section.

             (4)  A person to whom this section applies is not required:

                     (a)  to communicate any protected information to a court or tribunal; or

                     (b)  to produce a protected document in a court or tribunal;

except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or of a tax law.

             (5)  In this section:

court or tribunal includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

person to whom this section applies means a person who is or has been:

                     (a)  a member of the Board; or

                     (b)  a member of a committee; or

                     (c)  a member of the staff assisting the Board or a committee (see section 25 of the Industry Research and Development Act 1986); or

                     (d)  a consultant assisting the Board or a committee (see section 25 of the Industry Research and Development Act 1986); or

                     (e)  a member of the former Venture Capital Registration Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007); or

                      (f)  a member of the staff assisting the former Venture Capital Registration Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007); or

                     (g)  a consultant to the former Venture Capital Registration Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007), who was engaged under this Act before that commencement.

produce includes permit access to.

protected document means:

                     (a)  a document supplied in confidence to the Board in relation to a matter covered by this Act or the Venture Capital Act 2002; or

                    (aa)  a document supplied in confidence to the former Venture Capital Registration Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007); or

                     (b)  a document:

                              (i)  that contains information the disclosure of which may reasonably be expected to affect a person adversely in respect of the lawful business, commercial or financial affairs of the person; and

                             (ii)  that is obtained or made by a person to whom this section applies in the course of, or because of, the person’s functions or duties as such a person.

protected information means:

                     (a)  information supplied in confidence to the Board in relation to a matter covered by this Act or the Venture Capital Act 2002; or

                    (aa)  information supplied in confidence to the former Venture Capital Registration Board that was established by this Act (as in force before the commencement of Schedule 12 to the Tax Laws Amendment (2007 Measures No. 5) Act 2007); or

                     (b)  information:

                              (i)  the disclosure of which may reasonably be expected to affect a person adversely in respect of the lawful business, commercial or financial affairs of the person; and

                             (ii)  that is obtained by a person to whom this section applies in the course of, or because of, the person’s functions or duties as such a person.

tax law means an Act of which the Commissioner of Taxation has the general administration and includes the Venture Capital Act 2002.

76  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Notes to the Pooled Development Funds Act 1992

Note 1

The Pooled Development Funds Act 1992 as shown in this compilation comprises Act No. 100, 1992 amended as indicated in the Tables below.

For application, saving or transitional provisions made by the Corporations (Repeals, Consequentials and Transitionals) Act 2001, see Act No. 55, 2001.

All relevant information pertaining to application, saving or transitional provisions prior to 10 December 1999 is not included in this compilation. For subsequent information see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Pooled Development Funds Act 1992

100, 1992

30 June 1992

30 June 1992

 

Pooled Development Funds Amendment Act 1994

102, 1994

30 June 1994

1 July 1994

Ss. 3, 5, 11, 14, 15 and 17

Industry, Science and Technology Legislation Amendment Act 1994

108, 1994

12 July 1994

Part 4 (ss. 20–22): Royal Assent (a)

S. 20

Life Insurance (Consequential Amendments and Repeals) Act 1995

5, 1995

23 Feb 1995

1 July 1995 (see s. 2 and Gazette 1995, No. GN24)

Income Tax (Consequential Amendments) Act 1997

39, 1997

17 Apr 1997

1 July 1997

Financial Sector Reform (Consequential Amendments) Act 1998

48, 1998

29 June 1998

Schedule 1 (items 128–130): 1 July 1998 (see Gazette 1998, No. S316) (b)

Company Law Review Act 1998

61, 1998

29 June 1998

Schedule 4 (items 26–38): 1 July 1998 ( see Gazette 1998, No. S317) (c)
Schedule 5 (items 37, 38): (c)

S. 2(5) (am. by 63, 1998, Sch. 7)

as amended by

 

 

 

 

Taxation Laws Amendment (Company Law Review) Act 1998

63, 1998

29 June 1998

Schedule 7: (d)

Managed Investments Act 1998

62, 1998

29 June 1998

(e)

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (item 734): 5 Dec 1999 (see Gazette 1999, No. S584) (f)

New Business Tax System (Capital Gains Tax) Act 1999

165, 1999

10 Dec 1999

Schedule 3 (items 5–18): Royal Assent (g)

Sch. 3 (item 18) [see Table A]

Pooled Development Funds Amendment Act 2000

64, 2000

22 June 2000

22 June 2000

Sch. 1 (item 27) [see Table A]

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000

137, 2000

24 Nov 2000

Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7, 9–11, 32): Royal Assent
Remainder: 24 May 2001

Sch. 2 (items 418, 419) [see Table A]

Corporations (Repeals, Consequentials and Transitionals) Act 2001

55, 2001

28 June 2001

Ss. 4–14 and Schedule 3 (items 425–431): 15 July 2001 (see Gazette 2001, No. S285) (h)

Ss. 4–14 [see Note 1]

Industry, Science and Resources Legislation Amendment (Application of Criminal Code) Act 2001

140, 2001

1 Oct 2001

2 Oct 2001

S. 4 [see Table A]

Taxation Laws Amendment (Venture Capital) Act 2002

136, 2002

19 Dec 2002

Sch. 4 (items
3–11): Royal Assent

Industry, Tourism and Resources Legislation Amendment Act 2003

21, 2003

11 Apr 2003

Schedule 1 (items 15, 16): 12 Apr 2003

Sch. 1 (item 16) [see Table A]

Superannuation Legislation Amendment (Simplification) Act 2007

15, 2007

15 Mar 2007

Schedule 1 (items 274, 275,
406(1)–(3)): (i)

Sch. 1 (item 406(1)–(3)) [see Table A]

Tax Laws Amendment (2007 Measures No. 2) Act 2007

78, 2007

21 June 2007

Schedule 8 (items 157–165, 215–217, 348, 349): Royal Assent

Tax Laws Amendment (2007 Measures No. 5) Act 2007

164, 2007

25 Sept 2007

Schedule 12 (items 53–65, 279–287): 27 Sept 2007 (see F2007L03842)

Sch. 12 (items
279–287) [see Table A]


(a)     The Pooled Development Funds Act 1992 was amended by Part 4 (sections 20–22) only of the Industry, Science and Technology Legislation Amendment Act 1994, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(b)    The Pooled Development Funds Act 1992 was amended by Schedule 1 (items 128–130) only of the Financial Sector Reform (Consequential Amendments) Act 1998, subsection 2(2) of which provides as follows:

                 (2)   Subject to subsections (3) to (14), Schedules 1, 2 and 3 commence on the commencement of the Australian Prudential Regulation Authority Act 1998.

(c)     The Pooled Development Funds Act 1992 was amended by Schedule 4 (items 26–38) and Schedule 5 (items 37 and 38) only of the Company Law Review Act 1998, subsections 2(2) and (5) of which provide as follows:

                 (2)   Subject to subsection (3), section 3 and Schedules 1, 2, 3 and 4 commence on a day to be fixed by Proclamation.

                 (5)   Schedule 5 commences immediately after section 1 of the Taxation Laws Amendment (Company Law Review) Act 1998 commences.

         Section 1 commenced on 1 July 1998 (see Gazette 1998, No. S325).

(d)     The Company Law Review Act 1998 was amended by Schedule 7 only of the Taxation Laws Amendment (Company Law Review) Act 1998, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on a day to be fixed by Proclamation.
However, if that day is the same day as the day on which Schedule 3 to the Company Law Review Act 1997 commences, this Act commences immediately after item 32 of that Schedule commences.

         The Taxation Laws Amendment (Company Law Review) Act 1998 came into operation immediately after item 32 of Schedule 3 to the Company Law Review Act 1998.

         Item 32 commenced on 1 July 1998.

(e)     Section 2 of the Managed Investments Act 1998 provides as follows:

                    2   This Act commences immediately after all the items in Schedules 1, 2, 3 and 4 of the Company Law Review Act 1997 have commenced.

         The items in Schedules 1, 2, 3 and 4 of the Company Law Review Act 1998 commenced on 1 July 1998 (see Gazette 1998, No. S317).

(f)      The Pooled Development Funds Act 1992 was amended by Schedule 1 (item 734) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

                 (1)   In this Act, commencing time means the time when the Public Service Act 1999 commences.

                 (2)   Subject to this section, this Act commences at the commencing time.

(g)     The Pooled Development Funds Act 1992 was amended by Schedule 3 (items 5–17) only of the New Business Tax System (Capital Gains Tax) Act 1999, subsection 2(1) of which provides as follows:

                 (1)   Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

(h)     The Pooled Development Funds Act 1992 was amended by Schedule 3 (items 425–431) only of the Corporations (Repeals, Consequentials and Transitionals) Act 2001, subsection 2(3) of which provides as follows:

                 (3)   Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001.

(i)      Subsection 2(1) (item 2) of the Superannuation Legislation Amendment (Simplification) Act 2007 provides as follows:

                 (1)   Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

2.  Schedule 1

Immediately after the commencement of Schedule 1 to the Tax Laws Amendment (Simplified Superannuation) Act 2007.

15 March 2007


Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Part 1

 

S. 3......................................

rs. No. 64, 2000

S. 4......................................

am. No. 102, 1994; No. 5, 1995; Nos. 48 and 61, 1998; No. 165, 1999; No. 64, 2000; No. 55, 2001; No. 136, 2002; Nos. 78 and 164, 2007

S. 4A...................................

ad. No. 64, 2000

 

am. No. 21, 2003; No. 15, 2007

S. 4B...................................

ad. No. 140, 2001

Heading to Part 2.................

rs. No. 78, 2007

 

rep. No 164, 2007

Part 2...................................

rep. No 164, 2007

S. 5......................................

rs. No. 78, 2007

 

rep. No 164, 2007

S. 6......................................

am. No. 165, 1999; No. 136, 2002; No. 78, 2007

 

rep. No 164, 2007

Ss. 7–9................................

rep. No. 164, 2007

Part 3

 

S. 11....................................

am. No. 61, 1998; No. 78, 2007

S. 14....................................

am. No. 39, 1997; No. 61, 1998; No. 64, 2000

S. 18....................................

am. No. 61, 1998; No. 64, 2000

Part 4

 

Division 1

 

S. 19....................................

am. No. 64, 2000

Heading to s. 20..................

rs. No. 64, 2000

S. 20....................................

am. No. 64, 2000

Ss. 20A, 20B.......................

ad. No. 64, 2000

Ss. 21, 22............................

am. No. 64, 2000

S. 24....................................

am. Nos. 102 and 108, 1994; No. 55, 2001

S. 25....................................

am. No. 102, 1994; No. 64, 2000

S. 26....................................

rep. No. 102, 1994

S. 27A.................................

ad. No. 64, 2000

S. 28....................................

am. No. 102, 1994; No. 140, 2001

S. 28A.................................

ad. No. 64, 2000

Division 2

 

S. 29....................................

am. No. 64, 2000

S. 30....................................

am. No. 62, 1998; No. 55, 2001

S. 31....................................

am. No. 102, 1994; No. 48, 1998; No. 64, 2000; No. 55, 2001

S. 32....................................

am. No. 102, 1994

S. 32A.................................

ad. No. 64, 2000

Part 5

 

S. 41....................................

am. No. 61, 1998; No. 64, 2000

S. 42....................................

am. No. 61, 1998; No. 140, 2001

S. 43....................................

am. No. 165, 1999

Part 6

 

S. 47....................................

am. No. 102, 1994; No. 61, 1998; No. 64, 2000; No. 137, 2000

S. 49....................................

am. No. 140, 2001

Part 7

 

S. 50....................................

am. No. 102, 1994; No. 64, 2000; No. 140, 2001

S. 51....................................

am. No. 140, 2001

S. 52....................................

am. No. 165, 1999

 

rep. No. 137, 2000

Part 7A

 

Part 7A................................

ad. No. 165, 1999

Ss. 52A–52D.......................

ad. No. 165, 1999

Part 9...................................

rep. No. 164, 2007

Ss. 57–67............................

rep. No. 164, 2007

S. 68....................................

am. No. 146, 1999

 

rep. No. 164, 2007

S. 69....................................

rep. No. 164, 2007

Part 10

 

S. 71....................................

am. No. 136, 2002; No. 164, 2007

Ss. 72–74............................

am. No. 165, 1999; No. 136, 2002; No. 78, 2007

 

rep. No. 164, 2007

S. 75....................................

am. No. 165, 1999

 

rep. No. 164, 2007


Table A

Application, Saving or Transitional Provisions

New Business Tax System (Capital Gains Tax) Act 1999 (No. 165, 1999)

Schedule 3

18  Application of amendments

The amendments made by this Schedule apply to the issue or allotment of venture capital equity in a resident investment vehicle on or after the day on which this Act receives the Royal Assent.

 

Pooled Development Funds Amendment Act 2000 (No. 64, 2000)

Schedule 1

27  Application of amendments

General

(1)        The amendments made by this Act (except for those mentioned in the following subitems) apply, in relation to a PDF, from the beginning of the PDF’s 1999‑2000 income year (the transition time).

(2)        In subitem (1):

income year has the same meaning as in the Income Tax Assessment Act 1997.

Registration decisions

(3)        The amendment made by item 5 applies to a decision about registration that the Board makes after the transition time, even if the application for registration was made before that time.

Notification of initial investments

(4)        The amendments made by items 14 and 26 apply to investments made after this item commences.

Interposed entities

(5)        The amendment made by item 15 applies to investments made after 4 August 1999.

(6)        However, the Board may determine that that amendment does not apply to a particular investment if the Board is satisfied that the relevant PDF, or the interposed entity that is to make the investment, was already under a legal obligation to make the investment at the end of 4 August 1999.

Annual returns

(7)        The amendments made by items 21 and 22 apply to annual returns for the 1999‑2000 financial year and all later financial years.

Revocation power

(8)        The amendments made by items 23, 24 and 25 apply to contraventions of this Act, or of a condition of a PDF’s registration, that happen after this item commences.

 

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (No. 137, 2000)

Schedule 2

418  Transitional—pre‑commencement offences

(1)        Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

                     (a)  an offence committed before the commencement of this item; or

                     (b)  proceedings for an offence alleged to have been committed before the commencement of this item; or

                     (c)  any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2)        Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901.

419  Transitional—pre‑commencement notices

If:

                     (a)  a provision in force immediately before the commencement of this item required that a notice set out the effect of one or more other provisions; and

                     (b)  any or all of those other provisions are repealed by this Schedule; and

                     (c)  the first‑mentioned provision is amended by this Schedule;

the amendment of the first‑mentioned provision by this Schedule does not affect the validity of such a notice that was given before the commencement of this item.

 

Industry, Science and Resources Legislation Amendment (Application of Criminal Code) Act 2001 (No. 140, 2001)

4  Application of amendments

             (1)  Each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

 

Industry, Tourism and Resources Legislation Amendment Act 2003
(No. 21, 2003)

Schedule 1

16  Certain shareholdings in PDFs do not contravene section 31

(1)        Section 31 of the Pooled Development Funds Act 1992 is taken to have applied in relation to a PDF during the period:

                     (a)  starting on 8 October 1999; and

                     (b)  ending on the commencement of this item;

as if paragraph 4A(1)(a) of that Act were required to be ignored in determining whether a fund was a widely‑held complying superannuation fund.

Note:       Paragraph 4A(1)(a) would have required that the fund not be an excluded superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993).

(2)        If:

                     (a)  because of the effect of subitem (1), a person’s holding of shares in a PDF immediately before the commencement of this item did not contravene section 31 of the Pooled Development Funds Act 1992 as then in force; but

                     (b)  that holding of those shares would, but for this subitem, result in a contravention of section 31 of that Act as it applies after the commencement of this item;

then the following provisions have effect:

                     (c)  subject to paragraph (e), the person’s continued holding of those shares in the PDF after that commencement is to be disregarded when applying section 31 of that Act as then in force to the person and the person’s associates;

                     (d)  if, after that commencement, any bonus shares in the PDF are issued to the person because the person is the holder of the shares referred to in paragraph (c), then, subject to paragraph (e), the person’s holding of those bonus shares is to be disregarded when applying section 31 of that Act as then in force to the person and the person’s associates;

                     (e)  however, if, after that commencement, the person, or any of the person’s associates, acquires additional shares in the PDF (otherwise than as mentioned in paragraph (d)), the shares to which paragraphs (c) and (d) apply are to be taken into account in determining whether the acquisition of those additional shares complies with section 31 of that Act as then in force.

 

Superannuation Legislation Amendment (Simplification) Act 2007
(No. 15, 2007)

Schedule 1

406  Application

(1)        The amendments made by this Schedule apply to the 2007‑2008 income year and later years.

(2)        Despite subitem (1), those amendments apply to the 2007‑2008 financial year and later years, to the extent that they relate to Division 292 of the Income Tax Assessment Act 1997.

(3)        Despite subitem (1), those amendments apply on and after 1 July 2007, to the extent that they relate to any of the following:

                     (a)  Divisions 82 and 83 of the Income Tax Assessment Act 1997;

                     (b)  Divisions 301 to 307 of that Act.

 

Tax Laws Amendment (2007 Measures No. 5) Act 2007 (No. 164, 2007)

Schedule 12

279  Interpretation

In this Part:

new Board means Innovation Australia, established by section 6 of the Industry Research and Development Act 1986 (as amended by this Schedule).

former Board means:

                     (a)  the Industry Research and Development Board that was established by the Industry Research and Development Act 1986 (as in force before the commencement of this item); or

                     (b)  the Venture Capital Registration Board that was established by the Pooled Development Funds Act 1992 (as in force before the commencement of this item).

280  Things done to a former Board before commencement

(1)        Any thing done to a former Board before the commencement of this item is taken, on and after that commencement, to have been done to the new Board.

(2)        Without limiting subitem (1), examples of things done to a former Board include, but are not limited to, the following:

                     (a)  the making of applications or requests to the former Board;

                     (b)  the making of agreements with the former Board;

                     (c)  the giving of notices, documents or other things to the former Board;

                     (d)  the giving of directions by the Minister to the former Board.

281  Things done to the Chairperson or acting Chairperson of a former Board before commencement

(1)        Any thing done to the Chairperson, or acting Chairperson, of a former Board before the commencement of this item is taken, on and after that commencement, to have been done to the Chairperson of the new Board.

(2)        Without limiting subitem (1), examples of things done to the Chairperson of a former Board include, but are not limited to, the giving of notices or advice to the Chairperson.

282  Things done by a former Board before commencement

(1)        Any thing done by a former Board before the commencement of this item is taken, on and after that commencement, to have been done by the new Board.

(2)        Without limiting subitem (1), examples of things done by a former Board include, but are not limited to, the following:

                     (a)  the making of determinations or decisions by the former Board;

                     (b)  the granting or revoking of registrations, approvals, certificates or other things by the former Board;

                     (c)  the making of requests by the former Board;

                     (d)  the giving of directions by the former Board;

                     (e)  the making of guidelines by the former Board;

                      (f)  the formulation of criteria by the former Board;

                     (g)  the approval of forms by the former Board;

                     (h)  the making of requirements by the former Board;

                      (i)  the making of agreements by the former Board;

                      (j)  the giving of notices, documents or other things by the former Board.

(3)        Without limiting subitem (1), if, after the commencement of this item, the new Board is required under section 46 of the Industry Research and Development Act 1986 (as amended by this Schedule) to give a report in relation to a financial year that commenced before the commencement of this item, then the new Board must include in the report any matter that, had the amendments made by this Schedule not been made, a former Board would have been required to include in a report for that year under:

                     (a)  section 46 of the Industry Research and Development Act 1986 (as in force before the commencement of this item); or

                     (b)  section 75 of the Pooled Development Funds Act 1992 (as in force before the commencement of this item); or

                     (c)  section 33‑1 of the Venture Capital Act 2002 (as in force before the commencement of this item).

283  Things done by the Chairperson or acting Chairperson of a former Board before commencement

(1)        Any thing done by the Chairperson, or acting Chairperson, of a former Board before the commencement of this item is taken, on and after that commencement, to have been done by the Chairperson of the new Board.

(2)        Without limiting subitem (1), examples of things done by the Chairperson of a former Board include, but are not limited to, the following:

                     (a)  the making of inquiries or reports by the Chairperson;

                     (b)  a determination, by the Chairperson, of the form of records;

                     (c)  the signing of documents by the Chairperson.

284  Things done by a member or acting member of a former Board before commencement

(1)        Any thing done by a member, or acting member, of a former Board before the commencement of this item is taken, on and after that commencement, to have been done by a member of the new Board.

(2)        Without limiting subitem (1), examples of things done by a member of a former Board include, but are not limited to, the signing of a certificate by the member.

285  Things done by a person authorised by a former Board before commencement

(1)        Any thing done by a person authorised by a former Board before the commencement of this item is taken, on and after that commencement, to have been done by a person authorised by the new Board.

(2)        Without limiting subitem (1), examples of things done by a person authorised by a former Board include, but are not limited to, the signing of a certificate by the person.

286  References to a former Board in instruments etc.

A reference to a former Board in the following:

                     (a)  a legislative instrument;

                     (b)  guidelines made or criteria formulated under the Industry Research and Development Act 1986 or the Venture Capital Act 2002;

                     (c)  certificates, notices or other documents given to or by the former Board under the Industry Research and Development Act 1986, the Pooled Development Funds Act 1992 or the Venture Capital Act 2002;

                     (d)  directions given by the Minister to the former Board under the Industry Research and Development Act 1986 or the Pooled Development Funds Act 1992;

                     (e)  forms approved by the former Board under the Industry Research and Development Act 1986;

                      (f)  agreements made with the former Board under the Industry Research and Development Act 1986;

is taken, after the commencement of this item, to be a reference to the new Board.

287  Committees

An appointment of a member of a committee under section 22 of the Industry Research and Development Act 1986 that is in force immediately before the commencement of this item is taken, on that commencement, to be revoked.