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Corporations Act 2001

  • - C2012C00696
  • In force - Superseded Version
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Act No. 50 of 2001 as amended, taking into account amendments up to Corporations Legislation Amendment (Financial Reporting Panel) Act 2012
An Act to make provision in relation to corporations and financial products and services, and for other purposes
Administered by: Attorney-General's; Treasury
General Comments: This compilation is affected by retrospective amendments. Please see the Treasury Laws Amendment (2017 Measures No. 3) Act 2017 (Act No. 75 of 2017) for details.
Registered 03 Oct 2012
Start Date 01 Oct 2012
End Date 17 Nov 2012
Table of contents.

Corporations Act 2001

Act No. 50 of 2001 as amended

This compilation was prepared on 1 October 2012
taking into account amendments up to Act No. 118 of 2012

Volume 5 includes:     Table of Contents
                                    Chapters 9 and 10 (ss. 1274 – 1538)
                                    Schedules 3 and 4
                                    Note 1

         Table of Acts
         Act Notes
         Table of Amendments
         Note 2
         Table A

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

  

  

  


Contents

Chapter 9—Miscellaneous                                                                                                1

Part 9.1—Registers and registration of documents                                           1

1274...... Registers............................................................................................. 1

1274AA Register of disqualified company directors and other officers............. 6

1274A... Obtaining information from certain registers....................................... 7

1274B... Use, in court proceedings, of information from ASIC’s national database               8

1274C... ASIC certificate................................................................................... 8

1275...... Relodging of lost registered documents.............................................. 8

Part 9.2—Registration of auditors and liquidators                                         10

Division 1—Interpretation                                                                                       10

1276...... Definitions........................................................................................ 10

Division 2—Registration                                                                                           11

1279...... Application for registration as auditor or liquidator........................... 11

1280...... Registration of auditors..................................................................... 11

1280A... Approval of auditing competency standard....................................... 13

1281...... Auditor‑General taken to be registered as auditor............................. 13

1282...... Registration of liquidators................................................................. 14

1283...... Registration of official liquidators..................................................... 16

1284...... Insurance to be maintained by liquidators......................................... 16

1285...... Register of Auditors.......................................................................... 17

1286...... Registers of Liquidators and Official Liquidators............................. 17

1287...... Notification of certain matters........................................................... 19

1287A... Annual statements by registered company auditors........................... 20

1288...... Annual statements by registered liquidators...................................... 20

1289...... Auditors and other persons to enjoy qualified privilege in certain circumstances     21

Division 2A—Conditions on registration of auditors                                24

1289A... ASIC may impose conditions on registration.................................... 24

Division 3—Cancellation or suspension of registration                           25

1290...... Cancellation at request of registered person...................................... 25

1290A... Cancellation on certain grounds........................................................ 25

1291...... Official liquidators............................................................................ 26

1292...... Powers of Board in relation to auditors and liquidators.................... 26

1294...... Board to give opportunity for hearing etc.......................................... 30

1294A... Pre‑hearing conference...................................................................... 31

1295...... Board may remove suspension......................................................... 31

1296...... Notice of Board’s decision................................................................ 32

1297...... Time when Board’s decision comes into effect................................. 33

1298...... Effect of suspension.......................................................................... 34

1298A... Transfer of books.............................................................................. 34

Part 9.2A—Authorised audit companies                                                               36

Division 1—Registration                                                                                           36

1299A... Application for registration as authorised audit company.................. 36

1299B... Eligibility for registration as an authorised audit company................ 36

1299C... Registration as authorised audit company......................................... 37

1299D... Registration may be subject to conditions......................................... 37

1299E.... Register of authorised audit companies............................................. 38

1299F.... Notification of certain matters........................................................... 38

1299G... Annual statements by authorised audit company............................... 39

Division 2—Cancellation or suspension of registration                           41

1299H... Cancellation at request of registered person...................................... 41

1299I..... Cancellation or suspension in other cases......................................... 41

1299J.... Notice of cancellation or suspension................................................. 41

1299K... Time when ASIC’s decision comes into effect................................. 41

1299L.... Effect of suspension.......................................................................... 42

1299M.. Effect of cancellation......................................................................... 42

Part 9.3—Books                                                                                                                    43

1300...... Inspection of books........................................................................... 43

1301...... Location of books on computers....................................................... 43

1303...... Court may compel compliance.......................................................... 45

1304...... Translations of instruments............................................................... 45

1305...... Admissibility of books in evidence................................................... 45

1306...... Form and evidentiary value of books................................................ 45

1307...... Falsification of books........................................................................ 47

Part 9.4—Offences                                                                                                              48

Division 1A—Application of the Criminal Code                                          48

1308A... Application of Criminal Code........................................................... 48

Division 1—Specific offences                                                                                  49

1308...... False or misleading statements.......................................................... 49

1309...... False information etc......................................................................... 51

1310...... Obstructing or hindering ASIC etc................................................... 53

Division 2—Offences generally                                                                             54

1311...... General penalty provisions................................................................ 54

1312...... Penalties for bodies corporate........................................................... 55

1313...... Penalty notices.................................................................................. 56

1313A... Offences committed partly in and partly out of the jurisdiction......... 59

1314...... Continuing offences.......................................................................... 60

1315...... Proceedings: how taken.................................................................... 63

1316...... Time for instituting criminal proceedings.......................................... 64

1316A... Privilege against self‑incrimination not available to bodies corporate in Corporations Act criminal proceedings     64

1317...... Certain persons to assist in prosecutions........................................... 64

Part 9.4AAA—Protection for whistleblowers                                                    66

1317AA Disclosures qualifying for protection under this Part........................ 66

1317AB Disclosure that qualifies for protection not actionable etc.................. 67

1317AC Victimisation prohibited.................................................................... 68

1317AD Right to compensation....................................................................... 69

1317AE. Confidentiality requirements for company, company officers and employees and auditors      69

Part 9.4A—Review by Administrative Appeals Tribunal of certain decisions    71

1317A... Definitions........................................................................................ 71

1317B... Applications for review..................................................................... 71

1317C... Excluded decisions............................................................................ 71

1317D... Notice of reviewable decision and review rights............................... 72

Part 9.4AA—Infringement notices for alleged contraventions of continuous disclosure provisions      74

1317DAA  Definitions.................................................................................... 74

1317DAB  Purpose and effect of this Part....................................................... 75

1317DAC  Issue of infringement notice.......................................................... 76

1317DAD  Statement of reasons must be given.............................................. 77

1317DAE  Matters to be included in infringement notice................................ 78

1317DAF  Effect of issue and compliance with infringement notice............... 80

1317DAG  Effect of failure to comply with infringement notice..................... 82

1317DAH  Compliance period for infringement notice................................... 85

1317DAI  Withdrawal of infringement notice.................................................. 85

1317DAJ  Publication in relation to infringement notices................................ 87

Part 9.4B—Civil consequences of contravening civil penalty provisions 89

1317DA Definitions........................................................................................ 89

1317E.... Declarations of contravention............................................................ 89

1317F.... Declaration of contravention is conclusive evidence......................... 92

1317G... Pecuniary penalty orders................................................................... 92

1317GA Refund orders—contravention of section 962P................................ 94

1317H... Compensation orders—corporation/scheme civil penalty provisions 95

1317HA Compensation orders—financial services civil penalty provisions.... 96

1317HB Compensation orders—market integrity rules................................... 97

1317J.... Who may apply for a declaration or order......................................... 98

1317K... Time limit for application for a declaration or order.......................... 99

1317L.... Civil evidence and procedure rules for declarations of contravention and civil penalty orders 99

1317M.. Civil proceedings after criminal proceedings..................................... 99

1317N... Criminal proceedings during civil proceedings................................. 99

1317P.... Criminal proceedings after civil proceedings................................... 100

1317Q... Evidence given in proceedings for penalty not admissible in criminal proceedings  100

1317R... ASIC requiring person to assist...................................................... 101

1317S.... Relief from liability for contravention of civil penalty provision..... 102

Part 9.5—Powers of Courts                                                                                         104

1318...... Power to grant relief........................................................................ 104

1319...... Power of Court to give directions with respect to meetings ordered by the Court    105

1321...... Appeals from decisions of receivers, liquidators etc....................... 105

1322...... Irregularities.................................................................................... 106

1323...... Power of Court to prohibit payment or transfer of money, financial products or other property              108

1324...... Injunctions...................................................................................... 111

1324A... Provisions relating to prosecutions................................................. 114

1324B... Order to disclose information or publish advertisements................ 114

1325...... Other orders.................................................................................... 115

1325A... Orders if contravention of Chapter 6, 6A, 6B or 6C....................... 117

1325B... Court may order bidder to make offers........................................... 118

1325C... Unfair or unconscionable agreements, payments or benefits........... 118

1325D... Contravention due to inadvertence etc............................................. 120

1325E.... Orders to secure compliance........................................................... 120

1326...... Effect of sections 1323, 1324 and 1325.......................................... 121

1327...... Power of Court to punish for contempt of Court............................ 121

Part 9.6—Proceedings                                                                                                     122

1330...... ASIC’s power to intervene in proceedings..................................... 122

1331...... Civil proceedings not to be stayed................................................... 122

1332...... Standard of proof............................................................................ 122

1333...... Evidence of contravention............................................................... 123

1335...... Costs............................................................................................... 123

1336...... Vesting of property......................................................................... 124

Part 9.6A—Jurisdiction and procedure of Courts                                        125

Division 1—Civil jurisdiction                                                                               125

Subdivision A—Preliminary                                                                               125

1337A... Operation of Division..................................................................... 125

Subdivision B—Conferral of jurisdiction                                                        126

1337B... Jurisdiction of Federal Court and State and Territory Supreme Courts 126

1337C... Jurisdiction of Family Court and State Family Courts.................... 127

1337D... Jurisdiction of courts (decisions to prosecute and related criminal justice process decisions made by Commonwealth officers)........................................................................................... 127

1337E.... Jurisdiction of lower courts............................................................. 129

1337F.... Appeals........................................................................................... 129

1337G... Courts to act in aid of each other..................................................... 130

Subdivision C—Transfer of proceedings                                                         130

1337H... Transfer of proceedings by the Federal Court and State and Territory Supreme Courts           130

1337J.... Transfer of proceedings by Family Court and State Family Courts 132

1337K... Transfer of proceedings in lower courts.......................................... 134

1337L.... Further matters for a court to consider when deciding whether to transfer a proceeding          135

1337M.. Transfer may be made at any stage.................................................. 135

1337N... Transfer of documents.................................................................... 136

1337P.... Conduct of proceedings.................................................................. 136

1337Q... Rights of appearance....................................................................... 137

1337R... Limitation on appeals...................................................................... 137

Subdivision D—Rules of court                                                                            137

1337S.... Rules of the Federal Court.............................................................. 137

1337T.... Rules of the Supreme Court............................................................ 138

1337U... Rules of the Family Court............................................................... 139

Division 2—Criminal jurisdiction                                                                      140

1338A... Operation of Division..................................................................... 140

1338B... Jurisdiction of courts....................................................................... 140

1338C... Laws to be applied.......................................................................... 142

Part 9.7—Unclaimed property                                                                                   144

1339...... ASIC to deal with unclaimed property............................................ 144

1340...... No liability to pay calls on shares etc.............................................. 144

1341...... Entitlement to unclaimed property................................................... 144

1342...... Commonwealth or ASIC not liable for loss or damage................... 145

1343...... Disposal of securities if whereabouts of holder unknown.............. 145

1343A... Disposal of interests in registered scheme if whereabouts of member unknown      146

Part 9.9—Miscellaneous                                                                                                 147

1344...... Use of ABN.................................................................................... 147

1345A... Minister may delegate prescribed functions and powers under this Act 147

1346...... Non‑application of rule against perpetuities to certain schemes....... 147

1348...... Operation of Life Insurance Act...................................................... 148

1349...... Privilege against exposure to penalty—disqualification etc............. 148

1350...... Compensation for compulsory acquisition...................................... 151

Part 9.10—Fees imposed by the Corporations (Fees) Act 2001 and the Corporations (Review Fees) Act 2003                                                                                                                         152

1351...... Fees are payable to the Commonwealth.......................................... 152

1354...... Lodgment of document without payment of fee.............................. 153

1355...... Doing act without payment of fee................................................... 153

1356...... Effect of sections 1354 and 1355.................................................... 153

1359...... Waiver and refund of fees............................................................... 153

1360...... Debts due to the Commonwealth.................................................... 154

1362...... Payment of fee does not give right to inspect or search................... 154

Part 9.12—Regulations                                                                                                   155

1363...... Definitions...................................................................................... 155

1364...... Power to make regulations.............................................................. 155

1365...... Scope of particular regulations........................................................ 157

1366...... Verifying or certifying documents.................................................. 157

1367...... Documents lodged by an agent....................................................... 157

1367A... Publication in the prescribed manner............................................... 158

1368...... Exemptions from Chapter 6D or 7.................................................. 158

1369...... Penalty notices................................................................................ 159

1369A... State termination of reference.......................................................... 159

Chapter 10—Transitional provisions                                                                     160

Part 10.1—Transition from the old corporations legislation                   160

Division 1—Preliminary                                                                                          160

1370...... Object of Part.................................................................................. 160

1371...... Definitions...................................................................................... 161

1372...... Relationship of Part with State validation Acts............................... 165

1373...... References to things taken or deemed to be the case etc.................. 166

1374...... Existence of several versions of old corporations legislation does not result in this Part operating to take same thing to be done several times under new corporations legislation etc.............. 167

1375...... Penalty units in respect of pre‑commencement conduct remain at $100 168

1376...... Ceasing to be a referring State does not affect previous operation of this Part         168

Division 2—Carrying over registration of companies                           169

1377...... Division has effect subject to Division 7 regulations...................... 169

1378...... Existing registered companies continue to be registered.................. 169

Division 3—Carrying over the old Corporations Regulations          171

1379...... Division has effect subject to Division 7 regulations...................... 171

1380...... Old Corporations Regulations continue to have effect.................... 171

Division 4—Court proceedings and orders                                                  172

1381...... Division has effect subject to Division 7 regulations...................... 172

1382...... Definitions...................................................................................... 172

1383...... Treatment of court proceedings under or related to the old corporations legislation—proceedings other than federal corporations proceedings................................................................ 174

1384...... Treatment of court proceedings under or related to the old corporations legislation—federal corporations proceedings........................................................................................................ 176

1384A... Appeals etc. in relation to some former federal corporations proceedings                178

1384B... Effect of decisions and orders made in federal corporations proceedings before commencement            178

1385...... References to proceedings and orders in the new corporations legislation               179

Division 5—Other specific transitional provisions                                   181

1386...... Division has effect subject to Division 7 regulations...................... 181

1387...... Certain applications lapse on the commencement............................ 181

1388...... Carrying over the Partnerships and Associations Application Order 181

1389...... Evidentiary certificates.................................................................... 181

1390...... Preservation of nomination of body corporate as SEGC................. 182

1391...... Preservation of identification of satisfactory records....................... 182

1392...... Retention of information obtained under old corporations legislation of non‑referring State    182

1393...... Transitional provisions relating to section 1351 fees....................... 183

1394...... Transitional provisions relating to securities exchange fidelity fund levies               183

1395...... Transitional provisions relating to National Guarantee Fund levies 184

1396...... Transitional provisions relating to futures organisation fidelity fund levies              185

Division 6—General transitional provisions relating to other things done etc. under the old corporations legislation                                                                                              187

1397...... Limitations on scope of this Division.............................................. 187

1398...... Provisions of this Division may have an overlapping effect........... 188

1399...... Things done by etc. carried over provisions continue to have effect 188

1400...... Creation of equivalent rights and liabilities to those that existed before the commencement under carried over provisions of the old corporations legislation................................................... 190

1401...... Creation of equivalent rights and liabilities to those that existed before the commencement under repealed provisions of the old corporations legislation........................................................ 191

1402...... Old corporations legislation time limits etc...................................... 192

1403...... Preservation of significance etc. of events or circumstances........... 193

1404...... References in the new corporations legislation generally include references to events, circumstances or things that happened or arose before the commencement................................. 194

1405...... References in the new corporations legislation to that legislation or the new ASIC legislation generally include references to corresponding provisions of the old corporations legislation or old ASIC legislation          195

1406...... Carrying over references to corresponding previous laws.............. 196

1407...... References to old corporations legislation in instruments................ 197

1408...... Old transitional provisions continue to have their effect.................. 198

Division 7—Regulations dealing with transitional matters                  201

1409...... Regulations may deal with transitional matters................................ 201

Part 10.2—Transitional provisions relating to the Financial Services Reform Act 2001               202

Division 1—Transitional provisions relating to the phasing‑in of the new financial services regime   202

Subdivision A—Preliminary                                                                               202

1410...... Definitions...................................................................................... 202

Subdivision B—Treatment of existing markets                                             204

1411...... When is a market being operated immediately before the FSR commencement?      204

1412...... Treatment of proposed markets that have not started to operate by the FSR commencement   204

1413...... Obligation of Minister to grant licences covering main existing markets  206

1414...... Section 1413 markets—effect of licences and conditions................ 208

1415...... Section 1413 markets—preservation of old Corporations Act provisions during transition period          211

1416...... Section 1413 markets—powers for regulations to change how the old and new Corporations Act apply during the transition period.............................................................................. 211

1417...... Section 1413 markets—additional provisions relating to previously unregulated services       212

1418...... Treatment of exempt stock markets and exempt futures markets (other than markets with no identifiable single operator)........................................................................................................ 213

1419...... Treatment of exempt stock markets and exempt futures markets that do not have a single identifiable operator       215

1420...... Treatment of stock markets of approved securities organisations.... 216

1421...... Treatment of special stock markets for unquoted interests in a registered scheme    218

1422...... Treatment of other markets that were not unauthorised................... 219

Subdivision C—Treatment of existing clearing and settlement facilities 220

1423...... When is a clearing and settlement facility being operated immediately before the FSR commencement? 220

1424...... Treatment of proposed clearing and settlement facilities that have not started to operate by the FSR commencement........................................................................................................ 220

1424A... Treatment of unregulated clearing and settlement facilities operated by holders of old Corporations Act approvals........................................................................................................ 222

1425...... Obligation of Minister to grant licences covering main existing facilities 223

1426...... Section 1425 facilities—effect of licences and conditions............... 225

1427...... Section 1425 facilities—powers for regulations to change how the old and new Corporations Act apply during the transition period.............................................................................. 226

1428...... Section 1425 facilities—additional provisions relating to previously unregulated services      227

1429...... Treatment of other clearing and settlement facilities........................ 228

Subdivision D—Treatment of people who carry on financial services businesses and their representatives         229

1430...... Meaning of regulated principal, regulated activities and relevant old legislation    229

1431...... Parts 7.6, 7.7 and 7.8 of the amended Corporations Act generally do not apply to a regulated principal during the transition period.............................................................................. 232

1432...... Continued application of relevant old legislation............................. 234

1433...... Streamlined licensing procedure for certain regulated principals..... 235

1434...... Special licences for insurance multi‑agents during first 2 years after FSR commencement      236

1435...... Licensing decisions made within the first 2 years of the FSR commencement—regard may be had to conduct and experience of applicant or related body corporate that currently provides same or similar services          238

1436...... Treatment of representatives—general............................................ 238

1436A... Treatment of representatives—insurance agents.............................. 240

1437...... Exemptions and modifications by ASIC......................................... 242

Subdivision E—Product disclosure requirements                                         243

1438...... New product disclosure provisions do not apply to existing products during transition period               243

1439...... Offences against new product disclosure provisions—additional element for prosecution to prove if conduct occurs after opting‑in and before the end of the first 2 years.............................. 246

1440...... Continued application of certain provisions of old disclosure regimes during transition period               247

1441...... Certain persons who are not yet covered by Parts 7.6, 7.7 and 7.8 of the amended Corporations Act are required to comply with Part 7.9 obligations as if they were regulated persons 248

1442...... Exemptions and modifications by ASIC......................................... 248

Subdivision F—Certain other product‑related requirements                     249

1442A... Deferred application of hawking prohibition................................... 249

1442B... Deferred application of confirmation of transaction and cooling‑off provisions etc.                250

Division 2—Other transitional provisions                                                     252

1443...... Definitions...................................................................................... 252

1444...... Regulations may deal with transitional, saving or application matters 253

1445...... ASIC determinations may deal with transitional, saving or application matters        255

Part 10.3—Transitional provisions relating to the Corporations Legislation Amendment Act 2003     258

1447...... Application of sections 601AB and 601PB.................................... 258

1448...... Application of amendments made by Schedule 4 to the Corporations Legislation Amendment Act 2003                258

Part 10.4—Transitional provisions relating to the Financial Services Reform Amendment Act 2003  259

1449...... Definition........................................................................................ 259

1450...... Application of Part 10.2 to Chapter 7 as amended by Schedule 2 to the amending Act            259

1451...... Provisions relating to the scope of the amendments of Chapter 7 made by Schedule 2            260

1452...... Amendments of section 1274.......................................................... 261

Part 10.5—Transitional provisions relating to the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004                                262

1453...... Definitions...................................................................................... 262

1454...... Audit reforms in Schedule 1 to the amending Act (auditing standards and audit working papers retention rules)   262

1455...... Audit reforms in Schedule 1 to the amending Act (adoption of auditing standards made by accounting profession before commencement).............................................................................. 263

1456...... Audit reforms in Schedule 1 to the amending Act (new competency standard provisions)      264

1457...... Audit reforms in Schedule 1 to the amending Act (new annual statement requirements for auditors)      264

1458...... Audit reforms in Schedule 1 to the amending Act (imposition of conditions on existing registration as company auditor)........................................................................................................ 264

1459...... Audit reforms in Schedule 1 to the amending Act (application of items 62 and 63) 264

1460...... Audit reforms in Schedule 1 to the amending Act (non‑audit services disclosure)   265

1461...... Audit reforms in Schedule 1 to the amending Act (auditor appointment) 265

1462...... Audit reforms in Schedule 1 to the amending Act (auditor independence)               265

1463...... Audit reforms in Schedule 1 to the amending Act (auditor rotation) 267

1464...... Audit reforms in Schedule 1 to the amending Act (listed company AGMs)            267

1465...... Schedule 2 to the amending Act (financial reporting)...................... 267

1466A... Schedule 2A to the amending Act (true and fair view).................... 268

1466...... Schedule 3 to the amending Act (proportionate liability)................. 268

1467...... Schedule 4 to the amending Act (enforcement)............................... 268

1468...... Schedule 5 to the amending Act (remuneration of directors and executives)            268

1469...... Schedule 6 to the amending Act (continuous disclosure)................ 269

1470...... Schedule 7 to the amending Act (disclosure rules).......................... 269

1471...... Schedule 8 to the amending Act (shareholder participation and information)           270

Part 10.8—Transitional provisions relating to the Corporations Amendment (Takeovers) Act 2007   271

1478...... Application of amendments of the takeovers provisions................. 271

Part 10.9—Transitional provisions relating to the Corporations Amendment (Insolvency) Act 2007  272

1479...... Definition........................................................................................ 272

1480...... Schedule 1 to the amending Act (improving outcomes for creditors) 272

1481...... Schedule 2 to the amending Act (deterring corporate misconduct).. 275

1482...... Schedule 3 to the amending Act (improving regulation of insolvency practitioners)                275

1483...... Schedule 4 to the amending Act (fine‑tuning voluntary administration) 276

Part 10.10  Transitional provisions relating to the Corporations Amendment (Short Selling) Act 2008                                                                                                                                    279

1484...... Declarations under paragraph 1020F(1)(c) relating to short selling 279

Part 10.11—Transitional provisions relating to the Corporations Amendment (No. 1) Act 2009            281

1485...... Application of new subsection 206B(6).......................................... 281

1486...... Application of new section 206EAA.............................................. 281

Part 10.12—Transitional provisions relating to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009                                                        282

Division 1—Transitional provisions relating to Schedule 1 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009                   282

1487...... Definitions...................................................................................... 282

1488...... Application of amendments—general............................................. 282

1489...... Applications of amendments—application for and grant of licences etc. authorising margin lending financial services........................................................................................................ 283

1490...... Application of amendments—between 6 and 12 months after commencement        284

1491...... Acquisition of property................................................................... 285

1492...... Regulations..................................................................................... 285

Division 2—Transitional provisions relating to Schedule 2 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009                   286

1493...... Definitions...................................................................................... 286

1494...... Transitional provisions relating to limit on control of trustee companies  286

1495...... Transitional provisions relating to the amendments of Chapter 7.... 287

1496...... General power for regulations to deal with transitional matters....... 287

Division 3—Transitional provisions relating to Schedule 3 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009                   289

1497...... Definitions...................................................................................... 289

1498...... Application of amendments............................................................. 289

Part 10.13—Transitional provisions relating to the Personal Property Securities (Corporations and Other Amendments) Act 2009                                                                290

1499...... Definitions...................................................................................... 290

1500...... Charges, liens and pledges—continuation of restriction of references 290

1501...... Charges, liens, pledges and third party property—application........ 291

1501A... References to the whole or substantially the whole of a company’s property           291

1501B... Constructive notice of registrable charges....................................... 291

1502...... Repeal of Chapter 2K (charges)—general....................................... 291

1503...... Repeal of Chapter 2K (charges)—cessation of requirements in relation to documents or notices             292

1504...... Repeal of Chapter 2K (charges)—application of section 266.......... 292

1505...... Repeal of Chapter 2K (charges)—cessation of company registration requirements  293

1506...... Repeal of Chapter 2K (charges)—priority between registrable charges 293

1507...... New section 440B (restrictions on third party property rights)....... 293

1508...... New subsection 442CB(1) (administrator’s duty of care)............... 294

1509...... New section 588FP (security interests in favour of an officer of a company etc. void)            294

1510...... Winding up applied for before the commencement time.................. 294

Part 10.14—Transitional provisions relating to the Corporations Amendment (Corporate Reporting Reform) Act 2010                                                                                           295

1510A... Definition........................................................................................ 295

1510B... Application of Part 1 of Schedule 1 to the amending Act................ 295

Part 10.15—Transitional provisions relating to the Corporations Amendment (Financial Market Supervision) Act 2010                                                                                  297

1511...... Definition........................................................................................ 297

1512...... Application of amendments............................................................. 297

1513...... Regulations may deal with transitional matters................................ 297

Part 10.16—Transitional provisions relating to the Corporations Amendment (No. 1) Act 2010            298

1516...... Application of amendments............................................................. 298

Part 10.17—Transitional provisions relating to the Corporations Amendment (Improving Accountability on Director and Executive Remuneration) Act 2011                299

1517...... Application of Subdivision B of Division 1 of Part 2D.3............... 299

1518...... Application of sections 206J, 206K, 206L and 206M..................... 299

1519...... Application of subsection 249L(2).................................................. 299

1520...... Application of section 250BB......................................................... 299

1521...... Application of section 250BC......................................................... 299

1522...... Application of section 250BD......................................................... 300

1523...... Application of subsections 250R(4) to (10).................................... 300

1524...... Application of Division 9 of Part 2G.2........................................... 300

1525...... Application of amendments of section 300A.................................. 300

Part 10.18—Transitional provisions relating to the Corporations Amendment (Further Future of Financial Advice Measures) Act 2012                                                301

1526...... Definitions...................................................................................... 301

1527...... Application of best interests obligations.......................................... 301

1528...... Application of ban on conflicted remuneration................................ 302

1529...... Application of ban on other remuneration—volume‑based shelf‑space fees            303

1530...... Regulations do not apply where an acquisition of property otherwise than on just terms would result    304

1531...... Application of ban on other remuneration—asset‑based fees on borrowed amounts               304

Part 10.19—Transitional provisions relating to the Corporations Amendment (Phoenixing and Other Measures) Act 2012                                                                                       306

1532...... Definition........................................................................................ 306

1533...... Part 1 of Schedule 1 to the amending Act (winding up by ASIC).. 306

1534...... Part 2 of Schedule 1 to the amending Act (publication requirements) 306

1535...... Part 3 of Schedule 1 to the amending Act (miscellaneous amendments)  308

Part 10.20—Transitional provisions relating to the Corporations Legislation Amendment (Audit Enhancement) Act 2012                                                                              309

1536...... Definitions...................................................................................... 309

1537...... Application of amendments relating to annual transparency reports 309

Part 10.21—Transitional provision relating to the Corporations Legislation Amendment (Financial Reporting Panel) Act 2012                                                                        310

1538...... Courts etc. may have regard to Financial Reporting Panel report.... 310

Schedule 3—Penalties                                                                                                      311

Schedule 4—Transfer of financial institutions and friendly societies 344

Part 1—Preliminary                                                                                                         344

1............ Definitions...................................................................................... 344

Part 2—Financial institutions that became companies                                347

Division 1—Registration and its consequences                                           347

3............ Background (registration of transferring financial institution as company)              347

4............ Rules applied to transferring institution that was registered as a company under the transfer provisions 347

11.......... Transferring financial institution under external administration....... 348

Division 2—Membership                                                                                         351

12.......... Institution that became a company limited by shares....................... 351

13.......... Institution that became a company limited by guarantee.................. 352

14.......... Institution becoming a company limited by shares and guarantee... 353

15.......... Redeemable preference shares that were withdrawable shares........ 353

16.......... Liability of members on winding up............................................... 354

Division 3—Share capital                                                                                       355

17.......... Share capital.................................................................................... 355

18.......... Application of no par value rule...................................................... 355

19.......... Calls on partly‑paid shares.............................................................. 356

20.......... References in contracts and other documents to par value............... 356

Part 4—The transition period                                                                                    358

25.......... ASIC may direct directors of a company to modify its constitution 358

27.......... When certain modifications of a company’s constitution under an exemption or declaration take effect  359

Part 5—Demutualisations                                                                                             361

29.......... Disclosure for proposed demutualisation........................................ 361

30.......... ASIC’s exemption power............................................................... 363

31.......... Coverage of disclosure statement.................................................... 364

32.......... Registration of disclosure statement................................................ 364

33.......... Expert’s report................................................................................ 366

34.......... Unconscionable conduct in relation to demutualisations................. 366

35.......... Orders the Court may make............................................................ 367

Part 6—Continued application of fundraising provisions of the Friendly Societies Code            369

36.......... Friendly Societies Code to apply to offers of interests in benefit funds 369

Part 7—Transitional provisions                                                                                371

37.......... Unclaimed money........................................................................... 371

38.......... Modification by regulations............................................................ 372

39.......... Regulations may deal with transitional, saving or application matters 373

Notes                                                                                                                                           375


Chapter 9Miscellaneous

Part 9.1Registers and registration of documents

  

1274  Registers

             (1)  ASIC must, subject to this Act, keep such registers as it considers necessary in such form as it thinks fit.

             (2)  A person may:

                     (a)  inspect any document lodged with ASIC, not being:

                          (iaa)  a notice lodged under subsection 205D(3); or

                              (i)  an application under section 1279; or

                            (ia)  a document lodged under a provision of Chapter 7 (other than subsection 792C(1), section 1015B or section 1015D); or

                             (ii)  a document lodged under section 1287, 1287A or 1288; or

                            (iii)  a document lodged under paragraph 1296(2)(b); or

                            (iv)  a report made or lodged under section 422, 438D or 533; or

                             (v)  a document that has been destroyed or otherwise disposed of; or

                     (b)  require a certificate of the registration of a company or any other certificate authorised by this Act to be given by ASIC; or

                     (c)  require a copy of or extract from any document that the person is entitled to inspect pursuant to paragraph (a) or any certificate referred to in paragraph (b) to be given, or given and certified, by ASIC.

          (2A)  For the purposes of subsections (2) and (5), a document given to ASIC by a market operator (whether or not pursuant to a provision of this Act) that contains information that the market operator has made available to participants in the market is taken to be a document lodged with ASIC.

Note:          For example, a document given to ASIC for the purposes of subsection 792C(1) will be covered by this subsection.

          (2B)  For the purposes of subsections (2) and (5), information or a copy of a document that is not required to be lodged with ASIC because of section 601CDA or 601CTA is taken to be a document lodged with ASIC if an authority mentioned in the section has given the information or document to ASIC.

          (2C)  For the purposes of subsections (2) and (5), information or a copy of a document that is taken to be lodged with ASIC because of paragraph 1200D(2)(b) or 1200G(10)(b) is taken to be a document lodged with ASIC if an authority mentioned in section 601CDA or 601CTA has given the information or document to ASIC.

          (2D)  For the purposes of subsections (2) and (5), each of the following is taken to be a document lodged with ASIC if a copy has been given to ASIC by APRA:

                     (a)  benefit fund rules that have been approved by APRA under section 16L of the Life Insurance Act 1995;

                     (b)  an amendment of benefit fund rules that has been approved by APRA under section 16Q of the Life Insurance Act 1995;

                     (c)  consequential amendments of a company’s constitution that have been approved by APRA under section 16U or 16V of the Life Insurance Act 1995.

             (3)  If a reproduction or transparency of a document or certificate is produced for inspection, a person is not entitled pursuant to paragraph (2)(a) to require the production of the original of that document or certificate.

             (4)  The reference in paragraph (2)(c) to a document or certificate includes, where a reproduction or transparency of that document or certificate has been incorporated with a register kept by ASIC, a reference to that reproduction or transparency and, where such a reproduction or transparency has been so incorporated, a person is not entitled pursuant to that paragraph to a copy of or extract from the original of that document or certificate.

          (4A)  A person is not entitled under paragraph (2)(a) to require the production of the original of a document or certificate if ASIC keeps by means of a mechanical, electronic or other device a record of information set out in the document or certificate and:

                     (a)  ASIC produces to the person for inspection a writing that sets out what purports to be the contents of the document or certificate; or

                     (b)  ASIC causes to be displayed for the person what purports to be the contents of the document or certificate and, as at the time of the displaying, the person has not asked for the production of a writing of the kind referred to in paragraph (a).

          (4B)  Where:

                     (a)  a person makes under paragraph (2)(c) a requirement that relates to a document or certificate; and

                     (b)  ASIC keeps by means of a mechanical, electronic or other device a record of information set out in the document or certificate; and

                     (c)  pursuant to that requirement, ASIC gives a writing or document that sets out what purports to be the contents of:

                              (i)  the whole of the document or certificate; or

                             (ii)  a part of the document or certificate;

then, for the purposes of that paragraph, ASIC is taken to have given, pursuant to that requirement:

                     (d)  if subparagraph (c)(i) applies—a copy of the document or certificate; or

                     (e)  if subparagraph (c)(ii) applies—an extract from the document or certificate setting out that part of it.

          (4C)  Where:

                     (a)  the requirement referred to in paragraph (4B)(a) includes a requirement that the copy or extract be certified; and

                     (b)  pursuant to that requirement, ASIC gives a writing or document as mentioned in paragraph (4B)(c);

then:

                     (c)  ASIC may certify that the writing or document sets out the contents of the whole or part of the document or certificate, as the case requires; and

                     (d)  the writing or document is, in a proceeding in a court, admissible as prima facie evidence of the information contained in it.

             (5)  A copy of or extract from any document lodged with ASIC, and certified by ASIC, is, in any proceeding, admissible in evidence as of equal validity with the original document.

Note:          See also subsection (2A) for when certain documents are taken to have been lodged with ASIC.

             (6)  The reference in subsection (5) to a document includes, where a reproduction or transparency of that document has been incorporated with a register kept by ASIC, a reference to that reproduction or transparency.

             (7)  In any proceeding:

                     (a)  a certificate by ASIC that, at a date or during a period specified in the certificate, no company was registered under this Act by a name specified in the certificate is to be received as prima facie evidence that at that date or during that period, as the case may be, no company was registered by that name under this Act; and

                     (b)  a certificate by ASIC that a requirement of this Act specified in the certificate:

                              (i)  had or had not been complied with at a date or within a period specified in the certificate; or

                             (ii)  had been complied with at a date specified in the certificate but not before that date;

                            is to be received as prima facie evidence of matters specified in the certificate; and

                     (c)  a certificate by ASIC that, during a period specified in the certificate, a particular company was registered, or taken to be registered, under this Act is to be received as prima facie evidence that, during that period, that company was registered under this Act.

          (7A)  A certificate issued by ASIC stating that a company has been registered under this Act is conclusive evidence that:

                     (a)  all requirements of this Act for its registration have been complied with; and

                     (b)  the company was duly registered as a company under this Act on the date specified in the certificate.

             (8)  If ASIC is of opinion that a document submitted for lodgment:

                     (a)  contains matter contrary to law; or

                     (b)  contains matter that, in a material particular, is false or misleading in the form or context in which it is included; or

                     (c)  because of an omission or misdescription has not been duly completed; or

                     (d)  contravenes this Act; or

                     (e)  contains an error, alteration or erasure;

ASIC may refuse to register or receive the document and may request:

                      (f)  that the document be appropriately amended or completed and resubmitted; or

                     (g)  that a fresh document be submitted in its place; or

                     (h)  where the document has not been duly completed, that a supplementary document in the prescribed form be lodged.

             (9)  ASIC may require a person who submits a document for lodgment to produce to ASIC such other document, or to give to ASIC such information, as ASIC thinks necessary in order to form an opinion whether it may refuse to receive or register the first‑mentioned document.

           (10)  ASIC may, if in the opinion of ASIC it is no longer necessary or desirable to retain them, destroy or dispose of:

                     (a)  in relation to a body corporate:

                              (i)  any return of allotment of shares for cash that has been lodged for not less than 2 years; or

                             (ii)  any balance‑sheet that has been lodged for not less than 7 years or any document creating or evidencing a charge, or the complete or partial satisfaction of a charge, where a memorandum of satisfaction of the charge has been registered for not less than 7 years; or

                            (iii)  any other document (other than the constitution or any other document affecting it) that has been lodged or registered for not less than 15 years; or

                     (c)  any document a transparency of which has been incorporated with a register kept by ASIC.

           (11)  If a body corporate or other person, having made default in complying with:

                     (a)  any provision of this Act or of any other law that requires the lodging in any manner of any return, account or other document or the giving of notice to ASIC of any matter; or

                     (b)  any request of ASIC to amend or complete and resubmit any document or to submit a fresh document;

fails to make good the default within 14 days after the service on the body or person of a notice requiring it to be done, a court may, on an application by any member or creditor of the body or by ASIC, make an order directing the body or any officer of the body or the person to make good the default within such time as is specified in the order.

           (12)  Any such order may provide that all costs of and incidental to the application are to be borne by the body or by any officers of the body responsible for the default or by the person.

           (13)  A person must not contravene an order made under subsection (11).

           (14)  Nothing in this section prejudices the operation of any law imposing penalties on a body corporate or its officers or on another person in respect of a default mentioned in subsection (11).

           (15)  Where information about a person is included on a register kept by ASIC, ASIC may at any time, in writing, require that person to give ASIC specified information about the person, being information of the kind included on that register.

           (16)  The person must provide the information within such reasonable period, and in such form, as are specified by ASIC.

           (17)  An offence based on subsection (9), (13) or (16) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

1274AA  Register of disqualified company directors and other officers

             (1)  ASIC must keep a register of persons who have been disqualified from managing corporations under:

                     (a)  section 206C, 206D, 206E, 206EAA, 206EA, 206EB or 206F of this Act; or

                     (b)  a provision of a law of a State or Territory that:

                              (i)  was in force at any time before the commencement of this Act; and

                             (ii)  corresponds, in whole or in part, to one of the provisions referred to in paragraph (a).

             (2)  The register must contain a copy of:

                     (a)  every order made by the Court under section 206C, 206D or 206E; and

                    (aa)  every court order referred to in section 206EA; and

                   (ab)  every court order referred to in section 206EAA; and

                    (ac)  every court order referred to in section 206EB; and

                     (b)  every notice that was served under subsection 206F(3); and

                     (c)  each permission given under subsection 206F(5); and

                     (d)  every order lodged under subsection 206G(4); and

                     (e)  every order, notice or permission that was made, served, given or lodged under a provision of a law of a State or Territory that:

                              (i)  was in force at any time before the commencement of this Act; and

                             (ii)  corresponds, in whole or in part, to one of the provisions referred to in paragraph (a), (b), (c) or (d).

             (3)  Subsections 1274(2) and (5) apply to a copy of an order, notice or permission referred to in subsection (2) as if that copy were a document lodged with ASIC.

             (4)  A reference in this section to a provision of a law of a State or Territory includes a provision as applied as a law of that State or Territory.

1274A  Obtaining information from certain registers

             (1)  In this section:

data processor means a mechanical, electronic or other device for the processing of data.

register means a register kept by ASIC under this Act.

search includes inspect.

             (2)  ASIC may permit a person to search, otherwise than by using a data processor, a prescribed register.

             (3)  ASIC may permit a person to search a prescribed register by using a data processor in order to obtain prescribed information from the register.

             (4)  ASIC may make available to a person prescribed information (in the form of a document or otherwise) that ASIC has obtained from a prescribed register by using a data processor.

             (5)  Nothing in this section limits:

                     (a)  a power or function that ASIC has apart from this section; or

                     (b)  a right that a person has apart from this section.

1274B  Use, in court proceedings, of information from ASIC’s national database

             (1)  In this section:

data processor means a mechanical, electronic or other device for processing data.

             (2)  In a proceeding in a court, a writing that purports to have been prepared by ASIC is admissible as prima facie evidence of the matters stated in so much of the writing as sets out what purports to be information obtained by ASIC, by using a data processor, from the national database. In other words, the writing is proof of such a matter in the absence of evidence to the contrary.

             (3)  A writing need not bear a certificate or signature in order to be taken to purport to have been prepared by ASIC.

             (4)  Nothing in this section limits, or is limited by, section 1274 or 1274A.

1274C  ASIC certificate

                   ASIC may certify that a person was a director or secretary of a company at a particular time or during a particular period. In the absence of evidence to the contrary, a certificate is proof of the matters stated in it.

Note:          See section 1274B for the evidentiary status of documents prepared by ASIC from the national database.

1275  Relodging of lost registered documents

             (1)  Where a document forming part of the constitution of, or any other document relating to, a body corporate has, since being lodged, been lost or destroyed, a person may apply to ASIC for leave to lodge a copy of the document as originally lodged.

             (2)  Where such an application is made, ASIC may direct that notice of the application be given to such persons and in such manner as it thinks fit.

             (3)  Whether or not an application has been made to ASIC under subsection (1), ASIC, upon being satisfied:

                     (a)  that an original document has been lost or destroyed; and

                     (b)  of the date of the lodging of that document; and

                     (c)  that a copy of that document produced to ASIC is a correct copy;

may certify upon the copy that it is so satisfied and grant leave for the copy to be lodged in the manner required by law in respect of the original.

             (4)  Upon the lodgment the copy has, and is taken to have had from such date as is mentioned in the certificate as the date of the lodging of the original, the same force and effect for all purposes as the original.

             (5)  A decision of the Tribunal varying or setting aside a decision of ASIC to certify and grant leave under subsection (3) may be lodged with ASIC and is to be registered by it, but no payments, contracts, dealings, acts or things made, had or done in good faith before the registration of the Tribunal’s decision and upon the faith of and in reliance upon the certificate are to be invalidated or affected by the Tribunal’s decision.

             (6)  Where a transparency of a document referred to in subsection (1) has been incorporated with a register kept by ASIC and is lost or destroyed as referred to in that subsection, this section applies as if the document of which it is a transparency had been so lost or destroyed.


 

Part 9.2Registration of auditors and liquidators

Division 1Interpretation

1276  Definitions

                   In this Part, unless the contrary intention appears:

body corporate includes a Part 5.7 body.

decision, in relation to the Board, means, in Division 3, a decision of the Board under that Division and includes a refusal to exercise a power under section 1292.

registered means registered under Division 2.


 

Division 2Registration

1279  Application for registration as auditor or liquidator

             (1)  A natural person may make an application to ASIC:

                     (a)  for registration as an auditor; or

                     (b)  for registration as a liquidator; or

                     (c)  for registration as a liquidator of a specified body corporate, being a body corporate that is to be wound up under this Act.

             (2)  An application under this section:

                     (a)  must be lodged with ASIC; and

                     (b)  must contain such information as is prescribed in the regulations; and

                     (c)  must be in the prescribed form.

1280  Registration of auditors

             (2)  Subject to this section, where an application for registration as an auditor is made under section 1279, ASIC must grant the application and register the applicant as an auditor if:

                     (a)  the applicant satisfies subsection (2A) or (2B); and

                     (b)  ASIC is satisfied that the applicant has either:

                              (i)  satisfied all the components of an auditing competency standard approved by ASIC under section 1280A; or

                             (ii)  had such practical experience in auditing as is prescribed; and

                     (c)  ASIC is satisfied that the applicant is capable of performing the duties of an auditor and is otherwise a fit and proper person to be registered as an auditor;

but otherwise ASIC must refuse the application.

          (2A)  The applicant satisfies this subsection if the applicant:

                     (a)  holds a degree, diploma or certificate from a prescribed university or another prescribed institution in Australia; and

                     (b)  has, in the course of obtaining that degree, diploma or certificate, passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to ASIC to represent a course of study:

                              (i)  in accountancy (including auditing) of not less than 3 years duration; and

                             (ii)  in commercial law (including company law) of not less than 2 years duration; and

                     (c)  has satisfactorily completed a course in auditing prescribed by the regulations for the purposes of this paragraph.

          (2B)  The applicant satisfies this subsection if the applicant has other qualifications and experience that, in ASIC’s opinion, are equivalent to the requirements mentioned in subsection (2A).

             (3)  ASIC must not register as an auditor a person who is disqualified from managing corporations under Part 2D.6.

             (4)  Subject to subsection (8), ASIC may refuse to register as an auditor a person who is not resident in Australia.

             (5)  Where ASIC grants an application by a person for registration as an auditor, ASIC must cause to be issued to the person a certificate by ASIC stating that the person has been registered as an auditor and specifying the day on which the application was granted.

             (7)  A registration under this section is taken to have taken effect at the beginning of the day specified in the certificate as the day on which the application for registration was granted and remains in force until:

                     (a)  the registration is cancelled by ASIC or the Board; or

                     (b)  the person who is registered dies.

             (8)  ASIC must not refuse to register a person as an auditor unless ASIC has given the person an opportunity to appear at a hearing before ASIC and to make submissions and give evidence to ASIC in relation to the matter.

             (9)  Where ASIC refuses an application by a person for registration as an auditor, ASIC must, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and the reasons for it.

1280A  Approval of auditing competency standard

             (1)  ASIC may, on application by any person, approve an auditing competency standard for the purposes of paragraph 1280(2)(b). The approval must be in writing.

             (2)  If, on application by a person, ASIC approves an auditing competency standard under subsection (1), ASIC may, on application by that person, approve a variation of the standard. The approval must be in writing.

             (3)  ASIC must not approve an auditing competency standard, or a variation of an auditing competency standard, unless it is satisfied that:

                     (a)  the standard, or the standard as proposed to be varied, provides that a person’s performance against each component of the standard is to be appropriately verified by a person who:

                              (i)  is a registered company auditor; and

                             (ii)  has sufficient personal knowledge of the person’s work to be able to give that verification; and

                     (b)  the standard, or the standard as proposed to be varied, is not inconsistent with this Act or any other law of the Commonwealth under which ASIC has regulatory responsibilities; and

                     (c)  the standard adequately addresses the level of practical experience needed for registration as a company auditor; and

                     (d)  the standard is harmonised to the greatest extent possible with other approved auditing competency standards.

             (4)  ASIC may revoke an approval of an auditing competency standard:

                     (a)  on application by the person who applied for the approval; or

                     (b)  if ASIC is no longer satisfied as mentioned in subsection (3).

The revocation must be in writing.

1281  Auditor‑General taken to be registered as auditor

             (1)  A person who holds office as, or is for the time being exercising the powers and performing the duties of:

                     (a)  the Auditor‑General; or

                     (b)  the Auditor‑General of a State or Territory in this jurisdiction;

is taken, despite any other provision of this Part, to be registered as an auditor.

             (2)  A person to whom the Auditor‑General of the Commonwealth, or of a State or Territory, delegates:

                     (a)  the function of conducting an audit; or

                     (b)  the power to conduct an audit;

is taken to be registered as an auditor under this Part for the purposes of applying Chapter 2M to the audit.

1282  Registration of liquidators

             (2)  Subject to this section, where an application for registration as a liquidator is made under section 1279, ASIC must grant the application if:

                     (a)  the applicant:

                             (ii)  holds a degree, diploma or certificate from a prescribed university or another prescribed institution in Australia and has passed examinations in such subjects, under whatever name, as the appropriate authority of the university or other institution certifies to ASIC to represent a course of study in accountancy of not less than 3 years duration and in commercial law (including company law) of not less than 2 years duration; or

                            (iii)  has other qualifications and experience that, in the opinion of ASIC, are equivalent to the qualifications mentioned in subparagraph (ii); and

                     (b)  ASIC is satisfied as to the experience of the applicant in connection with externally‑administered bodies corporate; and

                     (c)  ASIC is satisfied that the applicant is capable of performing the duties of a liquidator and is otherwise a fit and proper person to be registered as a liquidator;

but otherwise ASIC must refuse the application.

             (3)  Where an application for registration as a liquidator of a specified body corporate is made under section 1279, ASIC must grant the application and register the applicant as a liquidator of that body if ASIC is satisfied that the applicant has sufficient experience and ability, and is a fit and proper person, to act as liquidator of the body, having regard to the nature of the property or business of the body and the interests of its creditors and contributories, but otherwise ASIC must refuse the application.

             (4)  ASIC must not register as a liquidator, or as a liquidator of a specified body corporate, a person who is disqualified from managing corporations under Part 2D.6.

             (5)  Subject to subsection (10), ASIC may refuse to register as a liquidator or as a liquidator of a specified body corporate a person who is not resident in Australia.

             (6)  Where:

                     (a)  ASIC grants an application by a person for registration as a liquidator or as a liquidator of a specified body corporate; and

                     (b)  the person has complied with the requirements of section 1284;

ASIC must cause to be issued to the person a certificate by ASIC:

                     (c)  stating that the person has been registered as a liquidator or as a liquidator of a specified body corporate; and

                     (d)  specifying a day as the day of the beginning of the registration, being:

                              (i)  the day on which ASIC granted the application; or

                             (ii)  the day on which the person complied with the requirements of section 1284;

                            whichever was the later; and

                     (e)  in the case of a person who is registered under subsection (3) as a liquidator of a specified body corporate—setting out the name of that body.

             (8)  The registration of a person as a liquidator under subsection (2) comes into force at the beginning of the day specified in the certificate as the day of the beginning of the registration and remains in force until:

                     (a)  the registration is cancelled by ASIC or by the Board; or

                     (b)  the person dies.

             (9)  The registration of a person as a liquidator of a specified body corporate under subsection (3) comes into force at the beginning of the day specified in the certificate as the day of the beginning of the registration and remains in force until:

                     (a)  the registration is cancelled by ASIC or by the Board; or

                     (b)  the person dies; or

                     (c)  the body corporate is dissolved or deregistered.

           (10)  ASIC must not refuse to register a person as a liquidator, or as a liquidator of a specified body corporate, unless ASIC has given the person an opportunity to appear at a hearing before ASIC and to make submissions and give evidence to ASIC in relation to the matter.

           (11)  Where ASIC refuses an application by a person for registration as a liquidator, or as a liquidator of a specified body corporate, ASIC must, not later than 14 days after the decision, give to the person notice in writing setting out the decision and the reasons for it.

1283  Registration of official liquidators

             (1)  ASIC may register as an official liquidator a natural person who is a registered liquidator.

             (2)  A person who is registered as an official liquidator is entitled, upon request, to be issued with a certificate of his or her registration.

             (3)  ASIC may register under subsection (1) as official liquidators as many registered liquidators as it thinks fit.

1284  Insurance to be maintained by liquidators

             (1)  A person who is registered as a liquidator, or as a liquidator of a specified body corporate, must maintain:

                     (a)  adequate and appropriate professional indemnity insurance; and

                     (b)  adequate and appropriate fidelity insurance;

for claims that may be made against the person in connection with externally‑administered bodies corporate.

             (2)  If the registration of a person as a liquidator, or as a liquidator of a specified body corporate, came into force before the commencement of this subsection, subsection (1) does not apply to the person at any time before 1 July 2008.

1285  Register of Auditors

             (1)  ASIC must cause a Register of Auditors to be kept for the purposes of this Act and must cause to be entered in the Register in relation to a person who is registered as an auditor:

                     (a)  the name of the person; and

                     (b)  the day on which the application by that person for registration as an auditor was granted; and

                     (c)  the address of the principal place where the person practises as an auditor and the address of the other places (if any) at which he or she so practises; and

                     (d)  if the person practises as an auditor as a member of a firm or under a name or style other than his or her own name—the name of that firm or the name or style under which he or she so practises; and

                     (e)  particulars of any suspension of the person’s registration, under Division 2, as an auditor and of any action taken in respect of the person under paragraph 1292(9)(a), (b) or (c);

and may cause to be entered in the Register in relation to a person who is registered as an auditor such other particulars as ASIC considers appropriate.

             (2)  Where a person ceases to be registered as an auditor, ASIC must cause to be removed from the Register of Auditors the name of the person and any other particulars entered in the Register in relation to that person.

             (3)  A person may inspect and make copies of, or take extracts from, the Register of Auditors.

1286  Registers of Liquidators and Official Liquidators

             (1)  ASIC must cause a Register of Liquidators to be kept for the purposes of this Act and must cause to be entered in the Register:

                     (a)  in relation to a person who is registered as a liquidator:

                              (i)  the name of the person; and

                             (ii)  the day of the beginning of the registration of that person as a liquidator; and

                            (iii)  the address of the principal place where the person practises as a liquidator and the addresses of the other places (if any) at which he or she so practises; and

                            (iv)  if the person practises as a liquidator as a member of a firm or under a name or style other than his or her own name—the name of that firm or the name or style under which he or she so practises; and

                             (v)  particulars of any suspension of the registration of the person as a liquidator or as a liquidator of a specified body corporate, and of any action taken in respect of the person under paragraph 1292(9)(a), (b) or (c); and

                     (b)  in relation to a person who is registered as a liquidator of a specified body corporate:

                              (i)  the name of the person; and

                             (ii)  the name of the body corporate; and

                            (iii)  the day of commencement of the registration of the person as a liquidator of the body corporate; and

                            (iv)  the address of the principal place where the person proposes to perform his or her functions as the liquidator of the body corporate; and

                             (v)  if the person practises a profession as a member of a firm or under a name or style other than his or her own name, being a profession by virtue of which he or she is qualified to be appointed as a liquidator of the body corporate—the name and address of that firm or the name or style under which he or she so practises; and

                            (vi)  particulars of any suspension or deemed suspension of the registration of the person as a liquidator of that body corporate or as a liquidator of a specified body corporate, and of any action taken in respect of the person under paragraph 1292(9)(a), (b) or (c);

and may cause to be entered in the Register in relation to a person who is registered as a liquidator, or as a liquidator of a specified body corporate, such other particulars as ASIC considers appropriate.

             (2)  ASIC must cause a Register of Official Liquidators to be kept for the purposes of this Act and must cause to be entered in the Register the name, and such other particulars as ASIC considers appropriate, of any person registered as an official liquidator.

             (3)  Where a person ceases to be registered as a liquidator, as a liquidator of a specified body corporate or as an official liquidator, ASIC must cause to be removed from the Register of Liquidators or from the Register of Official Liquidators, as the case may be, the name of the person and any other particulars entered in that Register in relation to that person.

             (4)  A person may inspect and make copies of, or take extracts from, the Register of Liquidators or the Register of Official Liquidators.

1287  Notification of certain matters

             (1)  Where:

                     (a)  a person who is a registered company auditor ceases to practise as an auditor; or

                     (b)  a change occurs in any matter particulars of which are required by paragraph 1285(1)(a), (c) or (d) to be entered in the Register of Auditors in relation to a person who is a registered company auditor;

the person must, not later than 21 days after the occurrence of the event concerned, lodge, in the prescribed form, particulars in writing of that event.

             (2)  Where:

                     (a)  a person who is a registered liquidator ceases to practise as a liquidator; or

                     (b)  a change occurs in any matter particulars of which are required by subparagraph 1286(1)(a)(i), (iii) or (iv) to be entered in the Register of Liquidators in relation to a person who is a registered liquidator;

the person must, not later than 21 days after the occurrence of the event concerned, lodge, in the prescribed form, particulars in writing of that event.

             (3)  Where:

                     (a)  a person who is registered as a liquidator of a specified body corporate ceases to act as a liquidator in the winding up of that body; or

                     (b)  a change occurs in any matter particulars of which are required by subparagraph 1286(1)(b)(i), (ii), (iv) or (v) to be entered in the Register of Liquidators in relation to a person who is registered as a liquidator of a specified body corporate;

the person must, not later than 21 days after the occurrence of the event concerned, lodge, in the prescribed form, particulars in writing of that event.

             (4)  If a person who is registered as an auditor, as a liquidator or as a liquidator of a specified corporate body is disqualified from managing corporations under Part 2D.6, then, within a period of 3 days after they become disqualified, they must lodge written particulars in the prescribed form of the circumstances because of which they become disqualified.

1287A  Annual statements by registered company auditors

             (1)  A person who is a registered company auditor must, within one month after the end of:

                     (a)  the period of 12 months beginning on the day on which the person’s registration begins; and

                     (b)  each subsequent period of 12 months;

lodge with ASIC a statement in respect of that period.

          (1A)  A statement under subsection (1):

                     (a)  must contain such information as is prescribed in the regulations; and

                     (b)  must be in the prescribed form.

             (2)  ASIC may, on the application of the person made before the end of the period for lodging a statement under subsection (1), extend, or further extend, that period.

1288  Annual statements by registered liquidators

             (3)  A person who is a registered liquidator must, within one month after the end of:

                     (a)  the period of 12 months beginning on the day on which the person’s registration begins; and

                     (b)  each subsequent period of 12 months;

lodge a statement in respect of that period of 12 months setting out such information as is prescribed.

             (4)  ASIC may, on the application of a registered liquidator made before the end of the period for lodging a statement under subsection (3), extend, or further extend, that period.

             (5)  ASIC may, by notice in writing served on the person, require a person who is registered as a liquidator of a specified body corporate to lodge, within a period specified in the notice, a statement in respect of a period specified in the notice setting out such information as is prescribed.

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

Qualified privilege for auditor

             (1)  An auditor has qualified privilege in respect of:

                     (a)  a statement that the auditor makes (orally or in writing) in the course of the auditor’s duties as auditor; or

                     (b)  a statement that the auditor makes (orally or in writing) on:

                              (i)  a directors’ report under section 298 or 306; or

                             (ii)  a statement, report or other document that is taken, for any purpose, to be part of that report; or

                     (c)  notifying ASIC of a matter under section 311; or

                     (d)  a disclosure made by the auditor in response to a notice given to the auditor under subsection 30A(1) or 225A(5) of the ASIC Act.

Note:          If the auditor is an audit company, the company has qualified privilege under this subsection in respect of statements made, and notices given, by individuals on behalf of the company if those statements and notices can be properly attributed to the company.

Qualified privilege for registered company auditor acting on behalf of audit company

             (2)  If the auditor is an audit company, a registered company auditor acting on behalf of the company has qualified privilege in respect of:

                     (a)  a statement that the registered company auditor makes (orally or in writing) in the course of the performance, on the behalf of the company, of the company’s duties as auditor; or

                     (b)  a statement that the registered company auditor makes (orally or in writing), on behalf of the company, on:

                              (i)  a directors’ report under section 298 or 306; or

                             (ii)  any statement, report or other document that is taken, for any purpose, to be part of that report; or

                     (c)  a notification of a matter that the registered company auditor gives ASIC, on behalf of the company, under section 311; or

                     (d)  a disclosure made by the registered company auditor in response to a notice given to the audit company under subsection 225A(5) of the ASIC Act.

Extent of auditor’s duties—answering questions put to auditor by members

             (3)  For the purposes of this section, an auditor’s duties as auditor include:

                     (a)  answering questions put to the auditor (or the auditor’s representative) at an AGM; and

                     (b)  providing answers to questions that are submitted to the auditor under section 250PA.

Qualified privilege for person representing auditor at AGM

             (4)  A person who represents an auditor at an AGM has qualified privilege in respect of any statement that the person makes in the course of representing the auditor at that AGM.

Qualified privilege for subsequent publication

             (5)  A person has qualified privilege in respect of the publishing of a document that:

                     (a)  is prepared by an auditor in the course of the auditor’s duties; or

                     (b)  required by or under this Act to be lodged (whether or not the document has been lodged).

             (6)  A person has qualified privilege in respect of the publishing of any statement:

                     (a)  made by an auditor as mentioned in subsection (1); or

                     (b)  made by a registered company auditor as mentioned in subsection (2); or

                     (c)  made by a person as mentioned in subsection (4).


 

Division 2AConditions on registration of auditors

1289A  ASIC may impose conditions on registration

             (1)  Under this section, ASIC may impose only conditions of a kind specified in the regulations.

             (2)  Subject to this section, ASIC may, at any time, by giving written notice to a person registered as an auditor:

                     (a)  impose conditions, or additional conditions, on their registration; and

                     (b)  vary or revoke conditions imposed on their registration.

             (3)  ASIC may do so:

                     (a)  on its own initiative; or

                     (b)  if the registered company auditor lodges with ASIC an application for ASIC to do so, which is accompanied by the documents, if any, required by regulations made for the purposes of this paragraph.

Note:          For fees in respect of lodging applications, see Part 9.10.

             (4)  Except where conditions are varied on the application of the registered company auditor, ASIC may only impose conditions or additional conditions, or vary the conditions, on registration after giving the auditor an opportunity:

                     (a)  to appear, or be represented, at a hearing before ASIC that takes place in private; and

                     (b)  to make submissions to ASIC in relation to the matter.

This subsection does not apply to ASIC imposing conditions at the time when the applicant is registered.


 

Division 3Cancellation or suspension of registration

1290  Cancellation at request of registered person

             (1)  Where a person who is registered as an auditor, as a liquidator, as a liquidator of a specified body corporate or as an official liquidator requests ASIC to cancel his or her registration, ASIC may cancel the registration of that person as an auditor, as a liquidator, as a liquidator of that body corporate or as an official liquidator, as the case may be.

             (2)  A decision of ASIC under subsection (1) to cancel the registration of a person as an auditor, as a liquidator, as a liquidator of a specified body corporate or as an official liquidator comes into effect as soon as practicable upon the making of the decision.

1290A  Cancellation on certain grounds

             (1)  If a person who is registered as a liquidator, as a liquidator of a specified body corporate or as an official liquidator:

                     (a)  becomes an insolvent under administration; or

                     (b)  becomes disqualified from managing corporations under Part 2D.6; or

                     (c)  contravenes subsection 1284(1);

ASIC may cancel the registration of that person as a liquidator, as a liquidator of that body corporate or as an official liquidator, as the case may be.

             (2)  If ASIC decides under subsection (1) to cancel the registration of a person as a liquidator, as a liquidator of a specified body corporate or as an official liquidator:

                     (a)  ASIC must, not later than 14 days after the decision, give the person a written notice:

                              (i)  setting out the decision; and

                             (ii)  the reasons for it; and

                     (b)  the decision comes into effect at the end of the day on which that notice is given to the person.

             (3)  A failure of ASIC to comply with subsection (2) does not affect the validity of the decision.

             (4)  Subsection (1) does not limit section 1291 or 1292.

             (5)  Sections 1291 and 1292 do not limit subsection (1) of this section.

1291  Official liquidators

             (1)  ASIC may, at any time, cancel, or suspend for a specified period, the registration as an official liquidator of a person who is so registered.

             (2)  ASIC may, at any time, require a person registered as an official liquidator to give an undertaking to refrain from engaging in specified conduct except on specified conditions.

             (3)  Where ASIC decides to exercise a power under subsection (1) or (2), ASIC must, not later than 14 days after the decision, give to the person a notice in writing setting out the decision and the reasons for it, but the validity of the decision is not affected by failure of ASIC to do so.

             (4)  A decision of ASIC under subsection (1) to cancel or suspend the registration of a person as an official liquidator comes into effect at the end of the day on which there is given to the person a notice of the decision, being a notice of the kind referred to in subsection (3).

1292  Powers of Board in relation to auditors and liquidators

             (1)  The Board may, if it is satisfied on an application by ASIC or APRA for a person who is registered as an auditor to be dealt with under this section that, before, at or after the commencement of this section:

                     (a)  the person has:

                            (ia)  contravened section 324DB; or

                              (i)  contravened section 1287A; or

                            (ia)  failed to comply with a condition of the person’s registration as an auditor; or

                             (ii)  ceased to be resident in Australia; or

                     (b)  the person either:

                              (i)  has not performed any audit work during a continuous period of not less than 5 years; or

                             (ii)  has not performed any significant audit work during a continuous period of not less than 5 years;

                            and, as a result, has ceased to have the practical experience necessary for carrying out audits for the purposes of this Act; or

                     (d)  the person has failed, whether in or outside this jurisdiction, to carry out or perform adequately and properly:

                              (i)  the duties of an auditor; or

                             (ii)  any duties or functions required by an Australian law to be carried out or performed by a registered company auditor;

                            or is otherwise not a fit and proper person to remain registered as an auditor;

by order, cancel, or suspend for a specified period, the registration of the person as an auditor.

          (1A)  In determining for the purposes of subparagraph (1)(b)(ii) whether audit work performed by a person is significant, have regard to:

                     (a)  the nature of the audit; and

                     (b)  the extent to which the person was involved in the audit; and

                     (c)  the level of responsibility the person assumed in relation to the audit.

             (2)  The Board may, if it is satisfied on an application by ASIC or APRA for a person who is registered as a liquidator to be dealt with under this section that, before, at or after the commencement of this section:

                     (a)  the person has:

                              (i)  contravened section 1288; or

                             (ii)  ceased to be resident in Australia; or

                     (d)  that the person has failed, whether in or outside this jurisdiction, to carry out or perform adequately and properly:

                              (i)  the duties of a liquidator; or

                             (ii)  any duties or functions required by an Australian law to be carried out or performed by a registered liquidator;

                            or is otherwise not a fit and proper person to remain registered as a liquidator;

by order, cancel, or suspend for a specified period, the registration of the person as a liquidator.

             (3)  The Board may, if it is satisfied on an application by ASIC for a person who is registered as a liquidator of a specified body corporate to be dealt with under this section that, before, at or after the commencement of this section:

                     (a)  the person has:

                              (i)  contravened subsection 1288(5); or

                             (ii)  ceased to be resident in Australia; or

                     (d)  that the person has failed, whether in or outside this jurisdiction, to carry out adequately and properly the duties of a liquidator in respect of the winding up of that body corporate or is otherwise not a fit and proper person to remain registered as a liquidator of that body corporate;

by order, cancel, or suspend for a specified period, the registration of the person as a liquidator of that body corporate.

             (4)  Where:

                     (a)  ASIC applies to the Board for a person who is registered as an auditor to be dealt with under this section; and

                     (b)  the person is also registered as a liquidator or as a liquidator of a specified body corporate;

the Board may, in addition to making an order under subsection (1), if it is satisfied as to any of the matters specified in paragraph (2)(a) or (d) or (3)(a) or (d), make an order cancelling, or suspending for a specified period, the registration of the person as a liquidator or as a liquidator of that body, as the case may be, and, where the Board makes such an order, the order is, for the purposes of this Division, taken to have been made under subsection (2) or (3), as the case may be.

             (5)  Where:

                     (a)  ASIC applies to the Board for a person who is registered as a liquidator to be dealt with under this section; and

                     (b)  the person is also registered as an auditor or as a liquidator of a specified body corporate;

the Board may, in addition to making an order under subsection (2), if it is satisfied as to any of the matters specified in paragraph (1)(a) or (d) or (3)(a) or (d), make an order cancelling, or suspending for a specified period, the registration of the person as an auditor or as a liquidator of that body, as the case may be, and, where the Board makes such an order, the order is, for the purposes of this Division, taken to have been made under subsection (1) or (3), as the case may be.

             (6)  Where:

                     (a)  ASIC applies to the Board for a person who is registered as a liquidator of a specified body corporate to be dealt with under this section; and

                     (b)  the person is also registered as an auditor or as a liquidator;

the Board may, in addition to making an order under subsection (3), if it is satisfied as to any of the matters specified in paragraph (1)(a) or (d) or (2)(a) or (d), make an order cancelling, or suspending for a specified period, the registration of the person as an auditor or as a liquidator, as the case may be, and, where the Board makes such an order, the order is, for the purposes of this Division, taken to have been made under subsection (1) or (2), as the case may be.

             (7)  The Board must, if it is satisfied on an application by ASIC or APRA for a prescribed person to be dealt with under this section:

                     (a)  that the person is disqualified from managing corporations under Part 2D.6; or

                     (b)  that the person is incapable, because of mental infirmity, of managing his or her affairs;

by order, cancel each prescribed registration of the person.

             (8)  In subsection (7) and in this subsection:

prescribed person means a person who is registered as an auditor, as a liquidator or as a liquidator of a specified body corporate.

prescribed registration, in relation to a prescribed person, means a registration of the person as an auditor, as a liquidator or as the liquidator of a specified body corporate.

             (9)  Where, on an application by ASIC or APRA for a person who is registered as an auditor, as a liquidator or as a liquidator of a specified body corporate to be dealt with under this section, the Board is satisfied that the person has failed to carry out or perform adequately and properly any of the duties or functions mentioned in paragraph (1)(d), (2)(d) or (3)(d), as the case may be, or is otherwise not a fit and proper person to remain registered as an auditor, liquidator or liquidator of that body, as the case may be, the Board may deal with the person in one or more of the following ways:

                     (a)  by admonishing or reprimanding the person;

                     (b)  by requiring the person to give an undertaking to engage in, or to refrain from engaging in, specified conduct;

                     (c)  by requiring the person to give an undertaking to refrain from engaging in specified conduct except on specified conditions;

and, if a person fails to give an undertaking when required to do so under paragraph (b) or (c), or contravenes an undertaking given pursuant to a requirement under that paragraph, the Board may, by order, cancel, or suspend for a specified period, the registration of the person as an auditor, as a liquidator or as a liquidator of a specified body corporate, as the case may be.

           (10)  The Board’s powers under subsection (9) may be exercised in addition to, or in substitution for, the exercise of the Board’s powers to cancel or suspend a registration under subsections (1) to (6).

           (11)  The Board may exercise any of its powers under this Division in relation to a person as a result of conduct engaged in by the person whether or not that conduct constituted or might have constituted an offence, and whether or not any proceedings have been brought or are to be brought in relation to that conduct.

           (12)  This section has effect subject to section 1294.

1294  Board to give opportunity for hearing etc.

             (1)  The Board must not:

                     (a)  cancel or suspend the registration of a person as an auditor, as a liquidator or as a liquidator of a specified body corporate; or

                     (b)  deal with a person in any of the ways mentioned in subsection 1292(9);

unless the Board has given the person an opportunity to appear at a hearing held by the Board and to make submissions to, and adduce evidence before, the Board in relation to the matter.

             (2)  Where subsection (1) requires the Board to give a person an opportunity to appear at a hearing and to make submissions to, and bring evidence before, the Board in relation to a matter, the Board must give ASIC and APRA an opportunity to appear at the hearing and to make submissions to, and bring evidence before, the Board in relation to the matter.

1294A  Pre‑hearing conference

             (1)  If subsection 1294(1) requires the Board to give a person an opportunity to appear at a hearing and to make submissions to, and bring evidence before, the Board in relation to a matter, the Chairperson of the Board may, if he or she considers that it would assist in the conduct of the hearing to do so, convene one or more conferences with the person.

             (2)  The Chairperson of the Board may allow any of the following persons to attend a conference:

                     (a)  a representative of ASIC;

                     (b)  a representative of APRA;

                     (c)  any other person.

             (3)  The Chairperson of the Board must give written notice of a conference to ASIC and APRA at least 14 days before the conference.

             (4)  At a conference, the Chairperson of the Board may, on behalf of the Board:

                     (a)  fix a date or dates for the hearing; and

                     (b)  give directions about the time within which submissions are to be made to the Board in relation to the matter; and

                     (c)  give directions about the time within which evidence is to be brought before the Board in relation to the matter; and

                     (d)  give directions as to the procedure to be followed at or in connection with the hearing.

1295  Board may remove suspension

             (1)  Where a registration of a person is suspended, the Board may, on an application by the person or of its own motion, by order, terminate the suspension.

             (2)  An order under subsection (1) has effect accordingly.

1296  Notice of Board’s decision

             (1)  Where the Board decides to exercise any of its powers under section 1292 in relation to a person, or decides that it is required to make an order under subsection 1292(7) in relation to a person, the Board must, within 14 days after the decision:

                     (a)  give to the person a notice in writing setting out the decision and the reasons for it; and

                     (b)  lodge a copy of the notice referred to in paragraph (a); and

                     (c)  cause to be published in the Gazette a notice in writing setting out the decision.

          (1A)  If:

                     (a)  the Board decides to exercise the power, or makes the order, on the basis of particular conduct engaged in by the person; and

                     (b)  the person engaged in that conduct in the course of participating in the conduct of an audit on behalf of an audit firm or audit company;

the notice under paragraph (1)(c) may identify the audit firm or audit company.

          (1B)  If the Board:

                     (a)  decides to exercise any of its powers under section 1292 in relation to a person; or

                     (b)  decides that it is required to make an order under subsection 1292(7) in relation to a person;

then, in addition to meeting the requirements of subsection (1), the Board may take such steps as it considers reasonable and appropriate to publicise:

                     (c)  the decision; and

                     (d)  the reasons for the decision.

Without limiting this, the Board may make the decision and reasons available on the internet.

          (1C)  If:

                     (a)  the Board decides to exercise the power under section 1292, or makes the order under subsection 1292(7), on the basis of particular conduct engaged in by the person; and

                     (b)  the person engaged in that conduct in the course of participating in the conduct of an audit on behalf of an audit firm or audit company;

a publication under subsection (1B) may identify the audit firm or audit company.

             (2)  Where the Board decides to refuse to exercise its powers under section 1292 in relation to a person, or decides that it is not required to make an order under subsection 1292(7) in relation to a person, the Board must, within 14 days after the decision:

                     (a)  give to the person a notice in writing setting out the decision and the reasons for it; and

                     (b)  lodge a copy of the notice referred to in paragraph (a).

             (3)  The validity of a decision of the Board is not affected by failure of the Board to comply with subsection (1) or (2), as the case requires, in relation to the decision.

1297  Time when Board’s decision comes into effect

             (1)  Subject to subsection (2) and to sections 41 and 44A of the Administrative Appeals Tribunal Act 1975, an order made by the Board cancelling or suspending the registration of a person as an auditor, as a liquidator or as a liquidator of a specified body corporate comes into effect:

                     (a)  at the end of the day on which there is given to the person a paragraph 1296(1)(a) notice of the decision pursuant to which the order is made; or

                     (b)  at the end of such longer period (not exceeding 90 days) as the Board determines.

             (2)  Where the Board makes an order of a kind referred to in subsection (1), it may, in order to enable an application to be made to the Tribunal for review of the decision to make the order, determine that the order is not to come into effect until a specified time or until the happening of a specified event.

             (3)  The Board may at any time vary or revoke a determination made under subsection (2), including such a determination that has been varied at least once before.

             (4)  A determination in force under subsection (2) has effect accordingly.

1298  Effect of suspension

                   A person whose registration as an auditor, as a liquidator, as a liquidator of a specified body corporate or as an official liquidator is suspended is, except for the purposes of subsections 1285(2) and 1286(3), section 1287 (other than paragraphs 1287(1)(a), (2)(a) and (3)(a)), sections 1287A and 1288 and this Division, taken not to be registered as an auditor, liquidator, liquidator of that body corporate or official liquidator, as the case may be, so long as the registration is suspended.

1298A  Transfer of books

             (1)  If:

                     (a)  the registration of a person as a liquidator, as a liquidator of a specified body corporate or as an official liquidator is cancelled or suspended; and

                     (b)  immediately before the cancellation or suspension, as the case may be, came into effect, the person had in his or her possession one or more books relating to an externally administered body corporate; and

                     (c)  any of the following subparagraphs applies:

                              (i)  the person was a liquidator of the externally administered body corporate;

                             (ii)  the person was a receiver, or a receiver and manager, of property of the externally administered body corporate;

                            (iii)  the person was the administrator of the externally administered body corporate;

                            (iv)  the person was the administrator of a deed of company arrangement for the externally administered body corporate; and

                     (d)  another person is or becomes:

                              (i)  a liquidator of the externally administered body corporate; or

                             (ii)  a receiver, or a receiver and manager, of property of the externally administered body corporate; or

                            (iii)  the administrator of the externally administered body corporate; or

                            (iv)  the administrator of a deed of company arrangement for the externally administered body corporate;

the first‑mentioned person must, as soon as practicable, transfer those books to that other person.

             (2)  If the books are in electronic form, they may be transferred electronically.


 

Part 9.2AAuthorised audit companies

Division 1Registration

1299A  Application for registration as authorised audit company

             (1)  A company may apply to ASIC for registration as an authorised audit company.

             (2)  An application under this section:

                     (a)  must contain such information as is prescribed in the regulations; and

                     (b)  must be in the prescribed form.

1299B  Eligibility for registration as an authorised audit company

                   A company is eligible to be registered as an authorised audit company if and only if:

                     (a)  each of the directors of the company:

                              (i)  is a registered company auditor; and

                             (ii)  is not disqualified from managing a corporation under Part 2D.6; and

                     (b)  each share in the company is held and beneficially owned by a person who is:

                              (i)  an individual; or

                             (ii)  the legal personal representatives of an individual; and

                     (c)  a majority of the votes that may be cast at a general meeting of the company attach to shares in the company that are held and beneficially owned by individuals who are registered company auditors; and

                     (d)  ASIC is satisfied that the company has adequate and appropriate professional indemnity insurance for claims that may be made against the company in relation to the audit of companies and registered schemes for the purposes of this Act; and

                     (e)  the company is not an externally‑administered body corporate.

1299C  Registration as authorised audit company

             (1)  ASIC must grant the application and register the company as an authorised audit company if the company is eligible to be registered as an authorised audit company. Otherwise ASIC must refuse the application.

             (2)  If ASIC grants the company’s application, ASIC must issue to the company a certificate by ASIC stating that the company has been registered as an authorised audit company and specifying the day on which the application was granted.

             (3)  The company’s registration under this section takes effect at the beginning of the day specified in the certificate as the day on which the application for registration was granted and remains in force until:

                     (a)  the registration is cancelled by ASIC; or

                     (b)  the company is wound up.

             (4)  ASIC must not refuse to register the company as an authorised audit company unless ASIC has given the company an opportunity to be represented at a hearing before ASIC and to make submissions and give evidence to ASIC in relation to the matter.

             (5)  If ASIC refuses the company’s application, ASIC must, not later than 14 days after the decision, give to the company a notice in writing setting out the decision and the reasons for it.

1299D  Registration may be subject to conditions

             (1)  The company’s registration as an authorised audit company is subject to:

                     (a)  the provisions of this Part; and

                     (b)  the conditions or restrictions specified in the regulations; and

                     (c)  any other conditions or restrictions determined by ASIC.

             (2)  ASIC may determine conditions or restrictions for the purposes of paragraph (1)(c) either at the time when the company is registered as an authorised audit company or subsequently.

             (3)  ASIC determines a condition or restriction by written notice to the company.

1299E  Register of authorised audit companies

             (1)  ASIC must keep a Register of Authorised Audit Companies for the purposes of this Act.

             (2)  In relation to each authorised audit company, ASIC must enter in the Register:

                     (a)  the name of the company; and

                     (b)  the company’s ACN or ABN; and

                     (c)  the day on which the company’s registration under section 1299C took effect; and

                     (d)  the address of the company’s registered office; and

                     (e)  the address of the principal place where the company practises as an auditor and the address of the other places (if any) at which the company so practises; and

                      (f)  the name and address of:

                              (i)  each director of the company; and

                             (ii)  each person who performs a chief executive officer function (within the meaning of section 295A) in relation to the company; and

                     (g)  the details of any conditions or restrictions determined under paragraph 1299D(1)(c) in relation to the registration; and

                     (h)  details of any suspension of the registration.

             (3)  ASIC may enter in the Register in relation to the company any other details that ASIC considers appropriate.

             (4)  If a company ceases to be registered as an authorised audit company, ASIC must remove the entry in relation to the company from the Register.

             (5)  A person may inspect and make copies of, or take extracts from, the Register.

1299F  Notification of certain matters

             (1)  An authorised audit company must notify ASIC if a condition or restriction to which the company’s registration is subject is contravened.

             (2)  The notice under subsection (1) must:

                     (a)  set out details of the contravention; and

                     (b)  be given within 14 days after the company becomes aware of the contravention; and

                     (c)  be lodged with ASIC in the prescribed form.

             (3)  An authorised audit company must notify ASIC if:

                     (a)  details of a matter are required by subsection 1299E(2) to be entered in the Register of Authorised Audit Companies in relation to the company; and

                     (b)  a change occurs in that matter while the company is registered as an authorised audit company.

             (4)  The notice under subsection (3) must:

                     (a)  set out details of the change; and

                     (b)  be given within 28 days after the change occurs; and

                     (c)  be lodged with ASIC in the prescribed form.

             (5)  A company that applies for registration as an authorised audit company must notify ASIC if:

                     (a)  details of a matter would be required by subsection 1299E(2) to be entered in the Register of Authorised Audit Companies in relation to the company if it were to be registered; and

                     (b)  a change occurs in that matter before the application is granted or rejected.

             (6)  The notice under subsection (5) must:

                     (a)  set out details of the change; and

                     (b)  be given within 28 days after the change occurs; and

                     (c)  be lodged with ASIC in the prescribed form.

1299G  Annual statements by authorised audit company

             (1)  A company that is an authorised audit company must, within one month after the end of:

                     (a)  the period of 12 months beginning on the day on which the company became registered as an authorised audit company; and

                     (b)  each subsequent period of 12 months;

lodge with ASIC a statement in respect of that period.

          (1A)  A statement under subsection (1):

                     (a)  must contain such information as is prescribed in the regulations; and

                     (b)  must be in the prescribed form.

             (2)  ASIC may, on the application of an authorised audit company made before the end of the period for lodging a statement under subsection (1), extend, or further extend, that period.

             (3)  An offence based on subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  A director of a company must take all reasonable steps to comply with, or to secure compliance with, subsection (1).


 

Division 2Cancellation or suspension of registration

1299H  Cancellation at request of registered person

             (1)  ASIC may cancel a company’s registration as an authorised audit company if the company requests ASIC to cancel the registration.

             (2)  ASIC must take the steps necessary to cancel the registration as soon as practicable after the request is made.

1299I  Cancellation or suspension in other cases

                   ASIC may cancel or suspend a company’s registration as an authorised audit company if:

                     (a)  the company ceases to be eligible to be registered as an authorised audit company; or

                     (b)  the company fails to meet conditions or observe restrictions imposed on the company’s registration as an authorised audit company.

Note:          See section 1299K for when the cancellation takes effect.

1299J  Notice of cancellation or suspension

             (1)  If ASIC decides to cancel or suspend a company’s registration as an authorised audit company under section 1299I, ASIC must, within 14 days after the decision:

                     (a)  give to the company written notice setting out the decision and the reasons for it; and

                     (b)  publish written notice of the decision in the Gazette.

             (2)  The validity of a decision by ASIC is not affected by a failure by ASIC to comply with subsection (1) in relation to the decision.

1299K  Time when ASIC’s decision comes into effect

             (1)  A decision by ASIC to cancel or suspend a company’s registration as an authorised audit company comes into effect at the end of the day on which the company is given notice of the decision under paragraph 1299J(1)(a). This subsection has effect subject to subsection (2) and to sections 41 and 44A of the Administrative Appeals Tribunal Act 1975.

             (2)  ASIC may, in order to enable an application to be made to the Tribunal for review of the decision to cancel or suspend the registration, determine that the decision to cancel or suspend the company’s registration as an authorised audit company is not to come into effect until:

                     (a)  a specified time; or

                     (b)  the happening of a specified event.

             (3)  ASIC may at any time vary or revoke a determination made under subsection (2), including such a determination that has been varied at least once before.

             (4)  A determination in force under subsection (2) has effect accordingly.

1299L  Effect of suspension

                   A company whose registration as an authorised audit company is suspended is, except for the purposes of subsection 1299E(4), sections 1299F and 1299G and this Division, taken not to be registered as an authorised audit company so long as the registration is suspended.

1299M  Effect of cancellation

                   If a company’s registration as an authorised audit company is cancelled (whether under section 1299H or 1299I), each appointment of the company as auditor for a company or registered scheme for the purposes of this Act that is in force on the day on which the cancellation decision takes effect is terminated at the end of that day.

Note:          This means that the authorised audit company ceases to be auditor without resigning and that the position of auditor for the company or scheme will immediately become vacant unless there is another auditor who has been appointed, and who can continue to act, as auditor for the company or registered scheme.


 

Part 9.3Books

  

1300  Inspection of books

             (1)  A book that is by this Act required to be available for inspection must, subject to and in accordance with this Act, be available for inspection at the place where, in accordance with this Act, it is kept and at all times when the registered office in this jurisdiction of the body corporate concerned is required to be open to the public.

             (2)  If any register kept by a company or a foreign company for the purposes of this Act is kept at a place other than the registered office of the company or foreign company, that place must be open to permit the register to be inspected during the same hours as those during which the registered office of the company or foreign company is required to be open to the public.

          (2A)  If a person asks a proprietary company in writing to inspect a particular book of the company that the person has a right to inspect, the company must make it available within 7 days, for inspection by the person at the place where it is required to be kept.

          (2B)  An offence based on subsection (2A) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  A person permitted by this Act to inspect a book may make copies of, or take extracts from, the book and any person who refuses or fails to allow a person so permitted to make a copy of, or take an extract from, the book is guilty of an offence.

             (4)  An offence based on subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

1301  Location of books on computers

             (1)  This section applies if:

                     (a)  a corporation records, otherwise than in writing, matters (the stored matters) this Act requires to be contained in a book; and

                     (b)  the record of the stored matters is kept at a place (the place of storage) other than the place (the place of inspection) where the book is, apart from this section, required to be kept; and

                     (c)  at the place of inspection means are provided by which the stored matters are made available for inspection in written form; and

                     (d)  the corporation has lodged a notice:

                              (i)  stating that this section is to apply in respect of:

                                        (A)  except where sub-subparagraph (B) applies—the book; or

                                        (B)  if the stored matters are only some of the information that is required to be contained in the book—the book and matters that are of the same kind as the stored matters; and

                             (ii)  specifying the situation of the place of storage and the place of inspection.

             (2)  Subject to subsection (4), the corporation is taken to have complied with the requirements of this Act as to the location of the book, but only in so far as the book is required to contain the stored matters.

             (3)  Subject to subsection (4), for the purposes of the application of subsection 1085(3) and section 1300 in relation to the corporation and the book, the book is taken to be kept at the place of inspection, even though the record of the stored matters is kept at the place of storage.

             (4)  If:

                     (a)  the situation of the place of storage or the place of inspection changes; and

                     (b)  the corporation does not lodge notice of the change within 14 days after the change;

this section, as it applies to the corporation because of the lodging of the notice referred to in paragraph (1)(d), ceases to so apply at the end of that period of 14 days.

1303  Court may compel compliance

                   If any person in contravention of this Act refuses to permit the inspection of any book or to supply a copy of any book, the Court may by order compel an immediate inspection of the book or order the copy to be supplied.

1304  Translations of instruments

             (1)  Where under this Act a person is required to lodge an instrument or a certified copy of an instrument and the instrument is not written in English, the person must lodge at the same time a certified translation of the instrument into English.

             (2)  Where under this Act a body corporate is required to make an instrument available for inspection and the instrument is not written in English, the body corporate must keep at its registered office or, if it does not have a registered office, at its principal office in this jurisdiction, a certified translation of the instrument into English.

             (3)  In this section, instrument includes any certificate, contract or other document.

1305  Admissibility of books in evidence

             (1)  A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.

             (2)  A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1).

1306  Form and evidentiary value of books

             (1)  A book that is required by this Act to be kept or prepared may be kept or prepared:

                     (a)  by making entries in a bound or looseleaf book; or

                     (b)  by recording or storing the matters concerned by means of a mechanical, electronic or other device; or

                     (c)  in any other manner approved by ASIC.

             (2)  Subsection (1) does not authorise a book to be kept or prepared by a mechanical, electronic or other device unless:

                     (a)  the matters recorded or stored will be capable, at any time, of being reproduced in a written form; or

                     (b)  a reproduction of those matters is kept in a written form approved by ASIC.

             (3)  A corporation must take all reasonable precautions, including such precautions (if any) as are prescribed, for guarding against damage to, destruction of or falsification of or in, and for discovery of falsification of or in, any book or part of a book required by this Act to be kept or prepared by the corporation.

             (4)  Where a corporation records or stores any matters by means of a mechanical, electronic or other device, any duty imposed by this Act to make a book containing those matters available for inspection or to provide copies of the whole or a part of a book containing those matters is to be construed as a duty to make the matters available for inspection in written form or to provide a document containing a clear reproduction in writing of the whole or part of them, as the case may be.

          (4A)  The regulations may provide for how up to date the information contained in an instrument prepared for the purposes of subsection (4) must be.

             (5)  If:

                     (a)  because of this Act, a book that this Act requires to be kept or prepared is prima facie evidence of a matter; and

                     (b)  the book, or a part of the book, is kept or prepared by recording or storing matters (including that matter) by means of a mechanical, electronic or other device;

a written reproduction of that matter as so recorded or stored is prima facie evidence of that matter.

             (6)  A writing that purports to reproduce a matter recorded or stored by means of a mechanical, electronic or other device is, unless the contrary is established, taken to be a reproduction of that matter.

1307  Falsification of books

             (1)  An officer, former officer, employee, former employee, member or former member of a company who engages in conduct that results in the concealment, destruction, mutilation or falsification of any securities of or belonging to the company or any books affecting or relating to affairs of the company is guilty of an offence.

             (2)  Where matter that is used or intended to be used in connection with the keeping of any books affecting or relating to affairs of a company is recorded or stored in an illegible form by means of a mechanical device, an electronic device or any other device, a person who:

                     (a)  records or stores by means of that device matter that the person knows to be false or misleading in a material particular; or

                     (b)  engages in conduct that results in the destruction, removal or falsification of matter that is recorded or stored by means of that device, or has been prepared for the purpose of being recorded or stored, or for use in compiling or recovering other matter to be recorded or stored by means of that device; or

                     (c)  having a duty to record or store matter by means of that device, fails to record or store the matter by means of that device:

                              (i)  with intent to falsify any entry made or intended to be compiled, wholly or in part, from matter so recorded or stored; or

                             (ii)  knowing that the failure so to record or store the matter will render false or misleading in a material particular other matter so recorded or stored;

contravenes this subsection.

             (3)  It is a defence to a charge arising under subsection (1) or (2) if the defendant proves that he, she or it acted honestly and that in all the circumstances the act or omission constituting the offence should be excused.

Note:          A defendant bears a legal burden in relation to the matter mentioned in subsection (3), see section 13.4 of the Criminal Code.


 

Part 9.4Offences

Division 1AApplication of the Criminal Code

1308A  Application of Criminal Code

                   Subject to this Act, Chapter 2 of the Criminal Code applies to all offences against this Act.


 

Division 1Specific offences

1308  False or misleading statements

             (1)  A corporation must not advertise or publish:

                     (a)  a statement of the amount of its capital that is misleading; or

                     (b)  a statement in which the total of all amounts paid and unpaid on shares in the company is stated but the amount of paid up capital or the amount of any charge on uncalled capital is not stated.

          (1A)  An offence based on subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (2)  A person who, in a document required by or for the purposes of this Act or lodged with or submitted to ASIC, makes or authorises the making of a statement that to the person’s knowledge is false or misleading in a material particular, or omits or authorises the omission of any matter or thing without which the document is to the person’s knowledge misleading in a material respect, is guilty of an offence.

             (3)  A person who makes or authorises the making of a statement that is based on information that to the person’s knowledge:

                     (a)  is false or misleading in a material particular; or

                     (b)  has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;

is, for the purposes of subsection (2), taken to have made or authorised the making of a statement that to the person’s knowledge was false or misleading in a material particular.

          (3A)  A person is not liable to be proceeded against for an offence in consequence of a regulation made under section 1364 as well as for an offence against subsection (2) of this section.

             (4)  A person who, in a document required by or for the purposes of this Act or lodged:

                     (a)  makes or authorises the making of a statement that is false or misleading in a material particular; or

                     (b)  omits or authorises the omission of any matter or thing without which the document is misleading in a material respect;

without having taken reasonable steps to ensure that the statement was not false or misleading or to ensure that the statement did not omit any matter or thing without which the document would be misleading, as the case may be, is guilty of an offence.

             (5)  A person who makes or authorises the making of a statement without having taken reasonable steps to ensure that the information on which the statement was based:

                     (a)  was not false or misleading in a material particular; and

                     (b)  did not have omitted from it a matter or thing the omission of which would render the information misleading in a material respect;

is, for the purposes of subsection (4), taken to have made or authorised the making of a statement without having taken reasonable steps to ensure that the statement was not false or misleading.

             (6)  For the purposes of subsections (2) and (4), where:

                     (a)  at a meeting, a person votes in favour of a resolution approving, or otherwise approves, a document required by or for the purposes of this Act or required to be lodged; and

                     (b)  the document contains a statement that, to the person’s knowledge, is false or misleading in a material particular, or omits any matter or thing without which the document is, to the person’s knowledge, misleading in a material respect;

the person is taken to have authorised the making of the statement or the omission of the matter or thing.

             (7)  For the purposes of this section, a statement, report or other document that:

                     (a)  relates to affairs of a company or of a subsidiary of a company; and

                     (b)  is not itself required by this Act to be laid before the company in general meeting; and

                     (c)  is attached to or included with a report of the directors provided under section 314 to members of the company or laid before the company at an annual general meeting of the company;

is taken to be part of the report referred to in paragraph (c).

             (8)  A person must not, in connection with an application for an Australian CS facility licence, Australian financial services licence or Australian market licence:

                     (a)  make a statement that is false or misleading in a material particular knowing it to be false or misleading; or

                     (b)  omit to state any matter or thing knowing that because of that omission the application is misleading in a material respect.

             (9)  For the purposes of this section:

                     (a)  a notice under subsection 708AA(2), 708A(5), 1012DAA(2) or 1012DA(5) is taken to be a notice required for the purposes of this Act; and

                     (b)  a notice under subsection 708AA(2), 708A(5), 1012DAA(2) or 1012DA(5) is taken to be misleading in a material respect if it fails to comply with paragraph 708AA(7)(d), 708A(6)(e), 1012DAA(7)(e) or 1012DA(6)(f).

1309  False information etc.

             (1)  An officer or employee of a corporation who makes available or gives information, or authorises or permits the making available or giving of information, to:

                     (a)  a director, auditor, member, debenture holder or trustee for debenture holders of the corporation; or

                     (b)  if the corporation is taken for the purposes of Chapter 2M to be controlled by another corporation—an auditor of the other corporation; or

                     (c)  an operator of a financial market (whether the market is operated in Australia or elsewhere) or an officer of such a market;

being information, whether in documentary or any other form, that relates to the affairs of the corporation and that, to the knowledge of the officer or employee:

                     (d)  is false or misleading in a material particular; or

                     (e)  has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;

is guilty of an offence.

             (2)  An officer or employee of a corporation who makes available or gives information, or authorises or permits the making available or giving of information, to:

                     (a)  a director, auditor, member, debenture holder or trustee for debenture holders of the corporation; or

                     (b)  if the corporation is taken for the purposes of Chapter 2M to be controlled by another corporation—an auditor of the other corporation; or

                     (c)  an operator of a financial market (whether the market is operated in Australia or elsewhere) or an officer of such a market;

being information, whether in documentary or any other form, relating to the affairs of the corporation that:

                     (d)  is false or misleading in a material particular; or

                     (e)  has omitted from it a matter or thing the omission of which renders the information misleading in a material respect;

without having taken reasonable steps to ensure that the information:

                      (f)  was not false or misleading in a material particular; and

                     (g)  did not have omitted from it a matter or thing the omission of which rendered the information misleading in a material respect;

is guilty of an offence.

             (3)  The references in subsections (1) and (2) to a person making available or giving, or authorising or permitting the making available or giving of, information relating to the affairs of a corporation include references to a person making available or giving, or authorising or permitting the making available or giving of, information as to the state of knowledge of that person with respect to the affairs of the corporation.

             (4)  Where information is made available or given to a person referred to in paragraph (1)(a), (b) or (c) or (2)(a), (b) or (c) in response to a question asked by that person, the question and the information are to be considered together in determining whether the information was false or misleading.

             (5)  For the purposes of this section:

                     (a)  a notice under subsection 708AA(2), 708A(5), 1012DAA(2) or 1012DA(5) is taken to be a notice required for the purposes of this Act; and

                     (b)  a notice under subsection 708AA(2), 708A(5), 1012DAA(2) or 1012DA(5) is taken to be misleading in a material respect if it omits information that is excluded information for the purposes of section 708AA, 708A, 1012DAA or 1012DA.

             (6)  Paragraphs (1)(a) and (b) do not apply in relation to a corporation that is an Aboriginal and Torres Strait Islander corporation.

Note:          Similar offences are created in relation to Aboriginal and Torres Strait Islander corporations under section 561‑5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

1310  Obstructing or hindering ASIC etc.

                   A person must not, without lawful excuse, obstruct or hinder ASIC, or any other person, in the performance or exercise of a function or power under this Act.


 

Division 2Offences generally

1311  General penalty provisions

             (1)  A person who:

                     (a)  does an act or thing that the person is forbidden to do by or under a provision of this Act; or

                     (b)  does not do an act or thing that the person is required or directed to do by or under a provision of this Act; or

                     (c)  otherwise contravenes a provision of this Act;

is guilty of an offence by virtue of this subsection, unless that or another provision of this Act provides that the person:

                     (d)  is guilty of an offence; or

                     (e)  is not guilty of an offence.

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

          (1A)  Paragraphs (1)(a), (b) and (c) only apply to a provision in the following list if a penalty, pecuniary or otherwise, is set out in Schedule 3 for that provision, or for a provision or provisions in which that provision is included:

                     (a)  Chapters 2A, 2B and 2C;

                     (b)  Parts 2F.2 and 2F.3;

                     (c)  Chapters 2G, 2H, 2J, 2M (other than Part 2M.4), 2N, 2P and 5A;

                     (d)  Parts 5B.1 and 5B.3;

                  (daa)  Chapter 5D;

                   (da)  Chapter 6CA;

                   (db)  Chapter 7;

                   (dc)  Chapter 8;

                     (e)  Chapter 10.

             (2)  Subject to section 1312, a person who is guilty of an offence against this Act, whether by virtue of subsection (1) or otherwise, is punishable, on conviction, by a penalty not exceeding the penalty applicable to the offence.

             (3)  Where:

                     (a)  subsection (1) operates in relation to a provision of this Act so as to make a person guilty of an offence; or

                     (b)  a provision of this Act (other than this section) provides that a person is, in circumstances referred to in the provision, guilty of an offence;

and a penalty, pecuniary or otherwise, is set out in Schedule 3 for that provision, or for a provision or provisions in which that provision is included, the penalty applicable to the offence is the penalty so set out.

             (4)  Where a provision of this Act (other than this section) provides that the penalty applicable to a contravention of a particular provision of this Act is a specified penalty, pecuniary or otherwise, the penalty applicable to an offence constituted by a contravention of the particular provision is the specified penalty.

             (5)  Except as provided in subsection (3) or (4) or in a provision of this Act (other than this section), the penalty applicable to the offence is a fine of 5 penalty units.

             (6)  An offence based on subsection (1) for which the penalty is set out in subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

1312  Penalties for bodies corporate

             (1)  Where a body corporate is convicted of an offence against this Act, the penalty that the court may impose is a fine not exceeding 5 times the maximum amount that, but for this section, the court could impose as a pecuniary penalty for that offence.

             (2)  Subsection (1) does not apply in relation to the following provisions of this Act:

                     (a)  section 1041A;

                     (b)  subsection 1041B(1);

                     (c)  subsection 1041C(1);

                     (d)  section 1041D;

                     (e)  subsection 1041E(1);

                      (f)  subsection 1041F(1);

                     (g)  subsection 1041G(1);

                     (h)  subsection 1043A(1);

                      (i)  subsection 1043A(2).

Note:          The penalties applicable to these provisions in relation to bodies corporate are set out in the relevant item of the table in Schedule 3.

1313  Penalty notices

             (1)  Where ASIC has reason to believe that a person has committed a prescribed offence, ASIC may, subject to subsection (2), give the person a notice in the prescribed form:

                     (a)  alleging that the person has committed the prescribed offence and giving the prescribed particulars in relation to the prescribed offence; and

                     (b)  setting out the prescribed penalty in respect of the prescribed offence; and

                     (c)  stating:

                              (i)  in the case of a prescribed offence constituted by a failure to do a particular act or thing:

                                        (A)  that the obligation to do the act or thing continues despite the service of the notice or the payment of the prescribed penalty; and

                                        (B)  that if, within the period specified in the notice (being a period of at least 21 days), the person pays the prescribed penalty to the authority specified in the notice and does the act or thing, no further action will be taken against the person in relation to the prescribed offence; and

                                        (C)  that if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the authority specified in the notice or has not done the act or thing, proceedings may be instituted against the person; or

                             (ii)  in the case of a prescribed offence, not being an offence constituted by a failure to do a particular act or thing:

                                        (A)  that if, within the period specified in the notice (being a period of at least 21 days), the person pays the prescribed penalty to the authority specified in the notice, no further action will be taken against the person in relation to the prescribed offence; and

                                        (B)  that if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the authority specified in the notice, proceedings may be instituted against the person.

             (2)  Subsection (1) does not empower ASIC:

                     (a)  to give a person more than one notice under that subsection in relation to an alleged commission by that person of a particular prescribed offence; or

                     (b)  to give a person a notice under that subsection in relation to a prescribed offence unless proceedings could be instituted against that person for that offence in accordance with section 1316.

             (3)  A notice under subsection (1) may be given to a natural person either personally or by post.

             (4)  Where a notice under subsection (1) is given to a person in relation to a prescribed offence constituted by a failure to do a particular act or thing:

                     (a)  if, within the period specified in the notice, the person pays the prescribed penalty to the authority specified in the notice, and does the act or thing—no proceedings may be instituted against the person in respect of the prescribed offence; or

                     (b)  if, at the end of the period specified in the notice, the person has paid the prescribed penalty to the authority specified in the notice but has not done the act or thing—no proceedings may be instituted against the person in respect of the prescribed offence, but the obligation to do that act or thing continues, and section 1314 applies in relation to the continued failure to do that act or thing as if, on the day on which the person so paid the prescribed penalty, the person had been convicted of an offence constituted by a failure to do that act or thing; or

                     (c)  if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the authority specified in the notice but had done the act or thing—proceedings may be instituted against the person in respect of the prescribed offence; or

                     (d)  if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the authority specified in the notice and has not done the act or thing—the obligation to do that act or thing continues, and proceedings may be instituted against the person in respect of the prescribed offence.

             (5)  Where a notice under subsection (1) is given to a person in relation to a prescribed offence, not being an offence constituted by a failure to do a particular act or thing:

                     (a)  if, within the period specified in the notice, the person pays the prescribed penalty to the authority specified in the notice—no proceedings may be instituted against the person in respect of the prescribed offence; or

                     (b)  if, at the end of the period specified in the notice, the person has not paid the prescribed penalty to the authority specified in the notice—proceedings may be instituted against the person in respect of the prescribed offence.

             (6)  The payment of an amount by a person pursuant to a notice served on the person under this section in relation to a prescribed offence is not taken for any purpose to be an admission by that person of any liability in connection with the alleged commission of the prescribed offence.

             (7)  Except as provided by paragraphs (4)(a) and (b) and (5)(a), this section does not affect the operation of any provision of this Act, of the regulations, of the rules or of any other Act in relation to the institution of proceedings in respect of offences that are prescribed offences for the purposes of this section.

             (8)  In this section:

authority includes a person.

prescribed offence means:

                     (a)  a subsection 1311(5) offence; or

                     (b)  an offence against this Act that the regulations prescribe for the purposes of this section.

prescribed penalty, in relation to a prescribed offence in relation to which ASIC may give, or has given, to a person a notice under subsection (1), means:

                     (a)  if the offence is a subsection 1311(5) offence:

                              (i)  if the regulations prescribe in relation to the offence for the purposes of this paragraph an amount not exceeding one half the amount of the penalty applicable to the offence:

                                        (A)  if the person is a body corporate—a penalty of five times the amount so prescribed; or

                                        (B)  otherwise—a penalty of the amount so prescribed; or

                             (ii)  otherwise:

                                        (A)  if the person is a body corporate—a penalty of 1.25 times the amount of the penalty applicable to the offence; or

                                        (B)  otherwise—a penalty of 0.25 times the amount of the penalty applicable to the offence; or

Note:    Section 1311 provides for the penalty applicable to an offence.

                     (b)  otherwise—a penalty of the amount that the regulations prescribe in relation to the offence.

subsection 1311(5) offence means an offence the penalty applicable to which is provided for by subsection 1311(5).

1313A  Offences committed partly in and partly out of the jurisdiction

                   Where:

                     (a)  a person does or omits to do an act outside this jurisdiction; and

                     (b)  if that person had done or omitted to do that act in this jurisdiction, the person would, by reason of also having done or omitted to do an act in this jurisdiction, have been guilty of an offence against this Act;

the person is guilty of that offence.

1314  Continuing offences

             (1)  Where:

                     (a)  by or under a provision, an act is or was required to be done within a particular period or before a particular time; and

                     (b)  failure to do the act within that period or before that time constitutes an offence; and

                     (c)  the act is not done within that period or before that time;

then:

                     (d)  the obligation to do the act continues, after that period has ended or that time has passed, and whether or not a person is or has been convicted of a primary substantive offence in relation to failure to do the act, until the act is done; and

                     (e)  subsections (3) and (4) apply.

             (2)  Where:

                     (a)  by or under a provision, an act is or was required to be done but neither a period nor a time for the doing of the Act is or was specified; and

                     (b)  failure to do the act constitutes an offence; and

                     (c)  a person is or has been convicted of a primary substantive offence in relation to failure to do the act;

then:

                     (d)  the obligation to do the act continues, despite the conviction, until the act is done; and

                     (e)  subsections (3) and (4) apply.

             (3)  Where:

                     (a)  at a particular time, a person is or was first convicted of a substantive offence, or is or was convicted of a second or subsequent substantive offence, in relation to failure to do the act; and

                     (b)  the failure to do the act continued after that time;

then:

                     (c)  the person is, in relation to failure to do the act, guilty of a further offence in respect of so much of the period throughout which the failure to do the act continued or elapsed after that time and before the relevant day in relation to the further offence; and

                     (d)  for the purposes of this Act and of the Crimes Act 1914, the further offence is taken to be constituted by failure to do the act during so much of that period as so elapsed.

             (4)  Where:

                     (a)  the provision referred to in paragraph (1)(a) or (2)(a), as the case may be, provides or provided that:

                              (i)  an officer or employee of a body corporate; or

                             (ii)  a person;

                            who is or was in default, or is or was involved in a contravention constituted by the failure to do the act, is or was guilty of an offence or contravenes or contravened a provision of this Act; and

                     (b)  throughout a particular period (in this subsection called the relevant period):

                              (i)  the failure to do the act continued; and

                             (ii)  a person (in this subsection called the derivative offender) is or was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the failure to do the act; and

                            (iii)  in a case where subparagraph (a)(i) applies—the derivative offender is or was an officer or employee of the body;

then:

                     (c)  in a case where either or both of the following events occurs or occur:

                              (i)  a person is or was convicted, before or during the relevant period, of a primary substantive offence in relation to failure to do the act;

                             (ii)  the derivative offender is or was convicted, before or during the relevant period, of a primary derivative offence in relation to failure to do the act;

                            the derivative offender is, in relation to failure to do the act, guilty of an offence (in this paragraph called the relevant offence) in respect of so much (if any) of the relevant period as elapsed:

                            (iii)  after the conviction referred to in subparagraph (i) or(ii), or after the earlier of the convictions referred to in subparagraphs (i) and (ii), as the case may be; and

                            (iv)  before the relevant day in relation to the relevant offence; and

                     (d)  in a case where, at a particular time during the relevant period, the derivative offender is or was first convicted of a secondary derivative offence, or is or was convicted of a second or subsequent secondary derivative offence, in relation to failure to do the act—the derivative offender is, in relation to failure to do the act, guilty of a further offence in respect of so much of the relevant period as elapsed after that time and before the relevant day in relation to the further offence.

             (5)  Where a person is guilty, by virtue of subsection (3) or (4), of an offence in respect of the whole or a part of a particular period, the penalty applicable to the offence is a fine of the amount obtained by multiplying half a penalty unit by the number of days in that period, or in that part of that period, as the case may be.

             (6)  In this section:

act includes thing.

primary derivative offence, in relation to failure to do an act, means an offence (other than an offence of which a person is guilty by virtue of this section) of which a person is or was guilty by virtue of being an officer of a corporation, or a person, who is or was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to failure to do the act.

primary substantive offence, in relation to a failure to do an act, means an offence (other than an offence of which a person is or was guilty by virtue of this section) constituted by failure to do the act, or by failure to do the act within a particular period or before a particular time.

provision means a section, or a subsection of a section, of this Act.

relevant day, in relation to an offence of which a person is guilty by virtue of this section, means:

                     (a)  in a case where the information relating to the offence specifies a day in relation to the offence for the purposes of this section, being a day not later than the day on which the information is laid—the day the information so specifies; or

                     (b)  in any other case—the day on which the information relating to the offence is laid.

required includes directed.

secondary derivative offence, in relation to failure to do an act, means an offence or further offence of which a person is, in relation to failure to do the act, guilty by virtue of paragraph (4)(c) or (d).

substantive offence, in relation to failure to do an act, means:

                     (a)  a primary substantive offence in relation to failure to do the act; or

                     (b)  a further offence of which a person is, in relation to failure to do the act, guilty by virtue of subsection (3).

             (7)  For the purposes of subsection (4), a provision of this Act is, whether or not it expressly provides as mentioned in paragraph (4)(a), taken to provide that a person who is or was involved in a contravention constituted by a failure to do an act required by the provision contravenes or contravened that provision.

1315  Proceedings: how taken

             (1)  Subject to this Act, in any proceedings for an offence against this Act, any information, charge, complaint or application may be laid or made by:

                     (a)  ASIC; or

                     (b)  a Commission delegate; or

                     (c)  another person authorised in writing by the Minister to institute the proceedings.

             (2)  A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to all offences, or to specified offences, against this Act.

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

1316  Time for instituting criminal proceedings

                   Despite anything in any other law, proceedings for an offence against this Act may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister’s consent, at any later time.

1316A  Privilege against self‑incrimination not available to bodies corporate in Corporations Act criminal proceedings

             (1)  In a Corporations Act criminal proceeding, a body corporate is not entitled to refuse or fail to comply with a requirement:

                     (a)  to answer a question or give information; or

                     (b)  to produce a book or any other thing; or

                     (c)  to do any other act whatever;

on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend:

                     (d)  to incriminate the body (whether in respect of an offence to which the proceeding relates or otherwise); or

                     (e)  to make the body liable to a penalty (whether in respect of anything to which the proceeding relates or otherwise).

             (2)  Subsection (1) applies whether or not the body concerned is a defendant in the proceeding or in any other proceeding.

             (3)  In this section:

Corporations Act criminal proceeding means a proceeding in a court when exercising jurisdiction in respect of a criminal matter arising under this Act.

1317  Certain persons to assist in prosecutions

             (1)  Where a prosecution in respect of an offence against this Act has been instituted, or ASIC is of the opinion that a prosecution in respect of an offence against this Act ought to be instituted, against a person (in this section referred to as the defendant), ASIC may:

                     (a)  if the defendant is a natural person—require any person who is or was a partner, employee or agent of the defendant; or

                     (b)  if the defendant is a body corporate—require any person who is or was an officer, employee or agent of the defendant;

to assist in the prosecution, and the person who is so required must give all assistance in connection with the prosecution that that person is reasonably able to give.

             (2)  ASIC must not make such a requirement as is mentioned in subsection (1) of a person who, in the opinion of ASIC, is or is likely to be a defendant in the proceedings or is or has been such a person’s lawyer.

             (3)  If a person to whom paragraph (1)(a) or (b) relates fails to give assistance as required by subsection (1), the person contravenes this section and, without affecting any penalty to which the person may be liable for the contravention, the Court may, on the application of ASIC, order the person to comply with the requirement within such time, and in such manner, as the Court orders.

             (4)  In this section, agent, in relation to the defendant, includes a banker of the defendant and a person engaged as an auditor by the defendant, whether that person is an employee or an officer of the defendant or not.


 

Part 9.4AAAProtection for whistleblowers

  

1317AA  Disclosures qualifying for protection under this Part

             (1)  A disclosure of information by a person (the discloser) qualifies for protection under this Part if:

                     (a)  the discloser is:

                              (i)  an officer of a company; or

                             (ii)  an employee of a company; or

                            (iii)  a person who has a contract for the supply of services or goods to a company; or

                            (iv)  an employee of a person who has a contract for the supply of services or goods to a company; and

                     (b)  the disclosure is made to:

                              (i)  ASIC; or

                             (ii)  the company’s auditor or a member of an audit team conducting an audit of the company; or

                            (iii)  a director, secretary or senior manager of the company; or

                            (iv)  a person authorised by the company to receive disclosures of that kind; and

                     (c)  the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and

                     (d)  the discloser has reasonable grounds to suspect that the information indicates that:

                              (i)  the company has, or may have, contravened a provision of the Corporations legislation; or

                             (ii)  an officer or employee of the company has, or may have, contravened a provision of the Corporations legislation; and

                     (e)  the discloser makes the disclosure in good faith.

Note:          Under section 1405, the reference to a provision of the Corporations legislation includes a reference to a corresponding provision of the old corporations legislation of the States and Territories.

             (2)  A reference in subsection (1) to a person contravening a provision of the Corporations legislation includes a reference to a person committing an offence against, or based on, a provision of this Act.

Note:          This subsection causes section 11.6 of the Criminal Code to operate in relation to such references.

1317AB  Disclosure that qualifies for protection not actionable etc.

             (1)  If a person makes a disclosure that qualifies for protection under this Part:

                     (a)  the person is not subject to any civil or criminal liability for making the disclosure; and

                     (b)  no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.

Note:          This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.

             (2)  Without limiting subsection (1):

                     (a)  the person has qualified privilege in respect of the disclosure; and

                     (b)  a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.

             (3)  Without limiting paragraphs (1)(b) and (2)(b), if a court is satisfied that:

                     (a)  a person (the employee) is employed in a particular position under a contract of employment with another person (the employer); and

                     (b)  the employee makes a disclosure that qualifies for protection under this Part; and

                     (c)  the employer purports to terminate the contract of employment on the basis of the disclosure;

the court may order that the employee be reinstated in that position or a position at a comparable level.

1317AC  Victimisation prohibited

Actually causing detriment to another person

             (1)  A person (the first person) contravenes this subsection if:

                     (a)  the first person engages in conduct; and

                     (b)  the first person’s conduct causes any detriment to another person (the second person); and

                     (c)  the first person intends that his or her conduct cause detriment to the second person; and

                     (d)  the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Part.

Threatening to cause detriment to another person

             (2)  A person (the first person) contravenes this subsection if:

                     (a)  the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and

                     (b)  the first person:

                              (i)  intends the second person to fear that the threat will be carried out; or

                             (ii)  is reckless as to causing the second person to fear that the threat will be carried out; and

                     (c)  the first person makes the threat because a person:

                              (i)  makes a disclosure that qualifies for protection under this Part; or

                             (ii)  may make a disclosure that would qualify for protection under this Part.

Officers and employees involved in contravention

             (3)  If a company contravenes subsection (1) or (2), any officer or employee of the company who is involved in that contravention contravenes this subsection.

Threats

             (4)  For the purposes of subsection (2), a threat may be:

                     (a)  express or implied; or

                     (b)  conditional or unconditional.

             (5)  In a prosecution for an offence against subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.

1317AD  Right to compensation

                   If:

                     (a)  a person (the person in contravention) contravenes subsection 1317AC(1), (2) or (3); and

                     (b)  a person (the victim) suffers damage because of the contravention;

the person in contravention is liable to compensate the victim for the damage.

1317AE  Confidentiality requirements for company, company officers and employees and auditors

             (1)  A person (the offender) is guilty of an offence against this subsection if:

                     (a)  a person (the discloser) makes a disclosure of information (the qualifying disclosure) that qualifies for protection under this Part; and

                     (b)  the qualifying disclosure relates to a contravention or possible contravention of a provision of the Corporations legislation by:

                              (i)  a company; or

                             (ii)  an officer or employee of the company; and

                     (c)  the qualifying disclosure is made to:

                              (i)  the company’s auditor or a member of an audit team conducting an audit of the company; or

                             (ii)  a director, secretary or senior manager of the company; or

                            (iii)  a person authorised by the company to receive disclosures of that kind; and

                     (d)  the offender is:

                              (i)  the company’s auditor or a member of an audit team conducting an audit of the company; or

                             (ii)  a director, secretary or senior manager of the company; or

                            (iii)  a person authorised by the company to receive disclosures of that kind; or

                            (iv)  the company; or

                             (v)  any officer or employee of the company; and

                     (e)  the offender discloses one of the following (the confidential information):

                              (i)  the information disclosed in the qualifying disclosure;

                             (ii)  the identity of the discloser;

                            (iii)  information that is likely to lead to the identification of the discloser; and

                      (f)  the confidential information is information that the offender obtained directly or indirectly because of the qualifying disclosure; and

                     (g)  either:

                              (i)  the offender is the person to whom the qualifying disclosure is made; or

                             (ii)  the offender is a person to whom the confidential information is disclosed in contravention of this section and the offender knows that the disclosure of the confidential information to the offender was unlawful or made in breach of confidence; and

                     (h)  the disclosure referred to in paragraph (e) is not authorised under subsection (2).

             (2)  The disclosure referred to in paragraph (1)(e) is authorised under this subsection if it:

                     (a)  is made to ASIC; or

                     (b)  is made to APRA; or

                     (c)  is made to a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or

                     (d)  is made to someone else with the consent of the discloser.


 

Part 9.4AReview by Administrative Appeals Tribunal of certain decisions

  

1317A  Definitions

                   In this Part:

decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

1317B  Applications for review

             (1)  Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Act by:

                     (a)  the Minister; or

                     (b)  ASIC; or

                     (c)  the Companies Auditors and Liquidators Disciplinary Board.

             (2)  For the purposes of this Act and the Administrative Appeals Tribunal Act 1975, ASIC and APRA are taken to be persons whose interests are affected by a decision made under this Act by the Companies Auditors and Liquidators Disciplinary Board.

1317C  Excluded decisions

                   Section 1317B does not apply in relation to:

                     (a)  a decision in respect of which any provision in the nature of an appeal or review is expressly provided by this Act; or

                     (b)  a decision that is declared by this Act to be conclusive or final or is embodied in a document declared by this Act to be conclusive evidence of an act, matter or thing; or

                    (ca)  a decision of ASIC to order the winding up of a company under section 489EA; or

                     (d)  a decision made by ASIC in the performance of a function, or in the exercise of a power, under section 601CC or 601CL or Chapter 5A; or

                     (e)  a decision by ASIC to refuse to exercise a power under section 601CC or 601CL or Chapter 5A; or

                      (f)  a decision to apply under section 596A or 596B for the Court to summon a person for examination about a corporation’s examinable affairs; or

                     (g)  a decision to apply under section 597A for the Court to require a person to file an affidavit about a corporation’s examinable affairs; or

                    (ga)  a decision of ASIC under section 655A; or

                   (gb)  a decision of ASIC under section 673 in relation to securities of the target of a takeover bid during the bid period; or

                    (gc)  a decision by ASIC whether to make an application under section 657C, 657G, 659B, 1325A, 1325B or 1325C; or

                  (gca)  a decision by ASIC to make market integrity rules under section 798G; or

                  (gcb)  a decision by the Minister to:

                              (i)  consent to the making of a market integrity rule; or

                             (ii)  direct ASIC to revoke or amend a market integrity rule; or

                  (gcc)  a decision by ASIC to do or not do anything under regulations made for the purposes of section 798K (alternatives to civil proceedings); or

                   (gd)  a decision of the Minister under Division 1 of Part 7.4; or

                    (ge)  a decision of ASIC under section 1101A; or

                     (h)  a decision to make a determination under subsection 1317D(3); or

                      (i)  a decision of ASIC to issue an infringement notice under section 1317DAC; or

                      (j)  a decision of ASIC to withdraw, or not to withdraw, an infringement notice under section 1317DAI.

1317D  Notice of reviewable decision and review rights

             (1)  This section applies if the Minister, ASIC or the Companies Auditors and Liquidators Disciplinary Board (the decision maker) makes a decision to which section 1317B applies.

             (2)  Subject to subsection (3), the decision maker must take such steps as are reasonable in the circumstances to give to each person whose interests are affected by the decision notice, in writing or otherwise:

                     (a)  of the making of the decision; and

                     (b)  of the person’s right to have the decision reviewed by the Tribunal.

             (3)  Subsection (2) does not require the decision maker to give notice to a person affected by the decision or to the persons in a class of persons affected by the decision, if the decision maker determines that giving notice to the person or persons is not warranted, having regard to:

                     (a)  the cost of giving notice to the person or persons; and

                     (b)  the way in which the interests of the person or persons are affected by the decision.

             (4)  A failure to comply with this section does not affect the validity of the decision.

             (5)  The fact that a person has not been given notice of the decision because of a determination under subsection (3) constitutes special circumstances for the purposes of subsection 29(6) of the Administrative Appeals Tribunal Act 1975.


 

Part 9.4AAInfringement notices for alleged contraventions of continuous disclosure provisions

  

1317DAA  Definitions

             (1)  In this Part:

compensation proceedings means:

                     (a)  proceedings under section 1317HA; and

                     (b)  proceedings under section 12GF of the ASIC Act in relation to a contravention of section 12DA of that Act; and

                     (c)  any other proceedings by a person for compensation for loss or damage suffered by the person.

compliance period for an infringement notice has the meaning affected by section 1317DAH.

contravention proceedings means proceedings under section 1101B by a person referred to in paragraph 1101B(1)(b) or (d).

enforcement proceedings means proceedings under section 793C by a person referred to in paragraph 793C(1)(b), (c) or (d).

infringement notice means an infringement notice issued under section 1317DAC.

penalty and disclosure proceedings means the proceedings referred to in column 3 of the table in subsection 1317DAG(2).

public interest proceedings means proceedings under section 50 of the ASIC Act.

             (2)  For the purposes of applying this Part to a disclosing entity that is an undertaking to which interests in a registered scheme relate:

                     (a)  references to the disclosing entity are taken to be references to the responsible entity for the registered scheme; and

                     (b)  references to a financial report for a financial year being lodged by a disclosing entity are taken to be references to such a report being lodged by the responsible entity in relation to the scheme; and

                     (c)  references to securities of a disclosing entity are taken to be references to interests in the registered scheme; and

                     (d)  references to a disclosing entity being convicted of an offence based on subsection 674(2) or 675(2) are taken to be references to the responsible entity being convicted of such an offence in relation to the registered scheme; and

                     (e)  references to a civil penalty order under Part 9.4B being made against a disclosing entity in relation to a contravention of subsection 674(2) or 675(2) are taken to be references to such an order being made against the responsible entity in relation to the registered scheme; and

                      (f)  references to a disclosing entity having breached an enforceable undertaking given to ASIC under section 93AA of the ASIC Act in relation to the requirements of subsection 674(2) or 675(2) are taken to be references to the responsible entity having breached such an undertaking given in relation to the registered scheme.

1317DAB  Purpose and effect of this Part

             (1)  The purpose of this Part is to provide for the issue of an infringement notice to a disclosing entity for an alleged contravention of subsection 674(2) or 675(2) as an alternative to proceedings for civil penalties under Part 9.4B.

             (2)  This Part does not:

                     (a)  require an infringement notice to be issued to the disclosing entity for the alleged contravention of subsection 674(2) or 675(2); or

                     (b)  affect the liability of the disclosing entity to civil or criminal proceedings in relation to the alleged contravention of subsection 674(2) or 675(2) if:

                              (i)  an infringement notice is not issued to the disclosing entity for the alleged contravention; or

                             (ii)  an infringement notice issued to the disclosing entity for the alleged contravention is withdrawn under section 1317DAI; or

                     (c)  prevent a Court from imposing a higher penalty than the penalty specified in the infringement notice if the disclosing entity does not comply with the infringement notice.

1317DAC  Issue of infringement notice

Issue of infringement notice

             (1)  Subject to section 1317DAD, if ASIC has reasonable grounds to believe that a disclosing entity has contravened subsection 674(2) or 675(2), ASIC may issue an infringement notice to the disclosing entity.

             (2)  ASIC issues the infringement notice to the disclosing entity by serving it on the disclosing entity.

             (3)  ASIC must not issue more than one infringement notice to the disclosing entity for the same alleged contravention of subsection 674(2) or 675(2).

ASIC must have regard to certain matters

             (4)  In determining whether to issue an infringement notice to a listed disclosing entity for an alleged contravention of subsection 674(2), ASIC must have regard to:

                     (a)  any guidelines issued by the relevant market operator for the listed disclosing entity that relate to the provisions of the listing rules referred to in subsection 674(1); and

                     (b)  any other relevant matter.

Infringement notice does not have effect

             (5)  The infringement notice does not have any effect if the infringement notice:

                     (a)  is issued more than 12 months after the day on which the contravention of subsection 674(2) or 675(2) is alleged to have occurred; or

                     (b)  relates to more than one alleged contravention of subsection 674(2) or 675(2) by the disclosing entity.

1317DAD  Statement of reasons must be given

Statement of reasons

             (1)  Before issuing the infringement notice, ASIC must:

                     (a)  give the disclosing entity a written statement that sets out ASIC’s reasons for believing that the disclosing entity has contravened subsection 674(2) or 675(2); and

                     (b)  give a representative of the disclosing entity an opportunity to:

                              (i)  appear at a private hearing before ASIC; and

                             (ii)  give evidence to ASIC; and

                            (iii)  make submissions to ASIC;

                            in relation to the alleged contravention of subsection 674(2) or 675(2).

             (2)  If the disclosing entity is a listed disclosing entity, ASIC must consult with the relevant market operator for the disclosing entity before giving the disclosing entity the statement under this subsection.

             (3)  ASIC does not need to consult the relevant market operator under subsection (2) if:

                     (a)  the disclosing entity is the relevant market operator; or

                     (b)  the disclosing entity conducts a business in competition with a business conducted by the relevant market operator.

Limit on the use of evidence or information given to ASIC

             (4)  Evidence or information that a representative of the disclosing entity gives ASIC under paragraph (1)(b) in relation to the alleged contravention of subsection 674(2) or 675(2) is:

                     (a)  not admissible in evidence against the disclosing entity in any proceedings; and

                     (b)  not admissible in evidence against a representative of the disclosing entity in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).

1317DAE  Matters to be included in infringement notice

             (1)  The infringement notice:

                     (a)  must state the day on which it is issued; and

                     (b)  must state the name and address of the disclosing entity to whom it is issued; and

                     (c)  must state that it is being issued by ASIC; and

                     (d)  must state that ASIC may publish details of the disclosing entity’s compliance with the infringement notice under section 1317DAJ if the disclosing entity complies with the notice; and

                     (e)  must give details of the alleged contravention by the disclosing entity, including:

                              (i)  the date of the alleged contravention; and

                             (ii)  the particular provision that was contravened; and

                      (f)  must state the maximum pecuniary penalty that a Court could impose under Part 9.4B in relation to the alleged contravention; and

                     (g)  must specify the penalty that is payable in relation to the alleged contravention; and

                     (h)  must state that the penalty is payable to ASIC on behalf of the Commonwealth; and

                      (i)  if it is alleged that the disclosing entity contravened subsection 674(2)—may specify information that the disclosing entity must notify to the relevant market operator in accordance with the provisions of the listing rules referred to in subsection 674(1); and

                      (j)  if it is alleged that the disclosing entity contravened subsection 675(2)—may require the disclosing entity to lodge a document with ASIC that contains specified information; and

                     (k)  must explain the effect of sections 1317DAF, 1317DAG and 1317DAH; and

                      (l)  must state that the disclosing entity may make written representations to ASIC seeking the withdrawal of the infringement notice; and

                    (m)  must contain any other matters that are prescribed in the regulations.

             (2)  Subject to subsection (3), the penalty specified in the infringement notice under paragraph (1)(g) for an alleged contravention of subsection 674(2) is:

                     (a)  $100,000 if the disclosing entity is a Tier 1 entity; or

                     (b)  $66,000 if the disclosing entity is a Tier 2 entity; or

                     (c)  $33,000 if the disclosing entity is a Tier 3 entity.

             (3)  The penalty specified in the infringement notice under paragraph (1)(g) for an alleged contravention of subsection 674(2) is:

                     (a)  $100,000 if the disclosing entity is a Tier 2 entity; or

                     (b)  $66,000 if the disclosing entity is a Tier 3 entity;

if:

                     (c)  the disclosing entity has at any time been convicted of an offence based on subsection 674(2) or 675(2); or

                     (d)  a civil penalty order under Part 9.4B has at any time been made against the disclosing entity in relation to a contravention of subsection 674(2) or 675(2); or

                     (e)  the disclosing entity has at any time breached an enforceable undertaking given to ASIC under section 93AA of the ASIC Act in relation to the requirements of subsection 674(2) or 675(2).

             (4)  Subject to subsection (5), the penalty specified in the infringement notice under paragraph (1)(g) for an alleged contravention of subsection 675(2) is $33,000.

             (5)  The penalty specified in the infringement notice under paragraph (1)(g) for an alleged contravention of subsection 675(2) is $66,000 if:

                     (a)  the disclosing entity has at any time been convicted of an offence based on subsection 674(2) or 675(2); or

                     (b)  a civil penalty order under Part 9.4B has at any time been made against the disclosing entity in relation to a contravention of subsection 674(2) or 675(2); or

                     (c)  the disclosing entity has at any time breached an enforceable undertaking given to ASIC under section 93AA of the ASIC Act in relation to the requirements of subsection 674(2) or 675(2).

             (6)  For the purposes of this section:

                     (a)  a disclosing entity is:

                              (i)  a Tier 1 entity if its market capitalisation on the relevant day exceeds $1,000 million; and

                             (ii)  a Tier 2 entity if its market capitalisation on the relevant day exceeds $100 million but does not exceed $1,000 million; and

                            (iii)  a Tier 3 entity if its market capitalisation on the relevant day does not exceed $100 million or it is not possible to work out its market capitalisation on the relevant day because it has not lodged a financial report with ASIC before the relevant day; and

                     (b)  the relevant day for an infringement notice is the last day of the financial year in relation to which the latest financial report by the disclosing entity has been lodged with ASIC before the infringement notice is issued.

             (7)  This is how to work out a disclosing entity’s market capitalisation on the relevant day:

                     (a)  for each class of security of the disclosing entity that is a quoted security:

                              (i)  work out the closing price, on the relevant day, for securities in that class on the prescribed financial market on which the securities are quoted; and

                             (ii)  multiply that price by the number of securities in that class on issue on the relevant day (as shown in the financial report lodged with ASIC for the period that ends on the relevant day); and

                     (b)  add up the amounts obtained under paragraph (a): the result is the disclosing entity’s market capitalisation on the relevant day.

Disregard quoted securities of the disclosing entity that are options.

1317DAF  Effect of issue and compliance with infringement notice

Circumstances in which this section applies

             (1)  This section applies if subsection (2) or (3) is satisfied.

             (2)  This subsection is satisfied if:

                     (a)  the compliance period for the infringement notice has not ended; and

                     (b)  the infringement notice is not withdrawn under section 1317DAI; and

                     (c)  subsection (3) has not been satisfied.

             (3)  This subsection is satisfied if, within the compliance period for the infringement notice, the disclosing entity:

                     (a)  pays the penalty specified in the infringement notice; and

                     (b)  either:

                              (i)  if it is alleged in the infringement notice that the disclosing entity contravened subsection 674(2)—notifies the relevant market operator, in accordance with the provisions of the listing rules referred to in subsection 674(1), of any information specified in the infringement notice; or

                             (ii)  if it is alleged in the infringement notice that the disclosing entity contravened subsection 675(2)—lodges any required document with ASIC that contains the information specified in the infringement notice.

Note:          If this subsection is satisfied, ASIC must not withdraw the infringement notice, see section 1317DAI.

No contravention etc. by the disclosing entity

             (4)  The disclosing entity is not, by reason only of subsection (3) being satisfied, regarded as:

                     (a)  having contravened the provision specified in the infringement notice; or

                     (b)  having been convicted of an offence constituted by the same conduct that constituted the alleged contravention of the provision specified in the infringement notice.

No proceedings may be started etc.

             (5)  Subject to subsection (6), no proceedings (whether criminal or civil) may be started or continued against the disclosing entity in relation to:

                     (a)  the alleged contravention of the provision specified in the infringement notice; or

                     (b)  an offence constituted by the same conduct that constituted the alleged contravention.

             (6)  Subsection (5) does not apply to the following proceedings:

                     (a)  compensation proceedings, contravention proceedings, enforcement proceedings and public interest proceedings that relate to the alleged contravention of the provision specified in the infringement notice;

                     (b)  proceedings to enforce the following orders of a Court:

                              (i)  an order made in relation to proceedings referred to in paragraph (a);

                             (ii)  an order made under subsection 1335(2) in relation to proceedings referred to in paragraph (a) other than public interest proceedings;

                     (c)  any other proceedings in respect of a breach of an order referred to in paragraph (b);

                     (d)  an appeal to a Court against the following decisions or orders of a Court:

                              (i)  a decision or order made in relation to proceedings referred to in paragraph (a);

                             (ii)  a decision or order made under subsection 1335(2) in relation to the proceedings referred to in paragraph (a) other than public interest proceedings.

             (7)  To avoid doubt, subsection (5) does not prevent ASIC from:

                     (a)  making an order under section 91 of the ASIC Act; or

                     (b)  bringing proceedings to enforce the order.

1317DAG  Effect of failure to comply with infringement notice

Circumstances in which this section applies

             (1)  This section applies if an infringement notice issued to a disclosing entity is not withdrawn under section 1317DAI.

Effect of failure to comply with infringement notice

             (2)  If the disclosing entity fails to do a thing specified in column 2 of the following table within the compliance period for the infringement notice, the disclosing entity is liable to the proceedings specified in column 3 of the following table:

 

Effect of failure to comply with infringement notice

Column 1

Column 2

Column 3

Item

If the disclosing entity fails to:

the disclosing entity is liable to:

1

pay the penalty specified in the infringement notice

proceedings under Part 9.4B for:

(a) a declaration of contravention; and

(b) a pecuniary penalty order;

in relation to the alleged contravention of the provision specified in the infringement notice.

2

notify the relevant market operator, in accordance with the provisions of the listing rules referred to in subsection 674(1), of any information specified in the infringement notice if it is alleged in the infringement notice that the disclosing entity contravened subsection 674(2)

proceedings for an order under section 1324B in relation to the alleged contravention of the provision specified in the infringement notice.

3

lodge any required document with ASIC that contains the information specified in the infringement notice if it is alleged in the infringement notice that the disclosing entity contravened subsection 675(2)

proceedings for an order under section 1324B in relation to the alleged contravention of the provision specified in the infringement notice.

No other proceedings may be started etc.

             (3)  Subject to subsection (4), no other proceedings (whether criminal or civil) may be started or continued against the disclosing entity in relation to:

                     (a)  the alleged contravention of the provision specified in the infringement notice; or

                     (b)  an offence constituted by the same conduct that constituted the alleged contravention.

             (4)  Subsection (3) does not apply to the following proceedings:

                     (a)  compensation proceedings, contravention proceedings, enforcement proceedings and public interest proceedings that relate to the alleged contravention of the provision specified in the infringement notice;

                     (b)  proceedings to enforce the following orders of a Court:

                              (i)  an order made in relation to penalty and disclosure proceedings;

                             (ii)  an order made in relation to proceedings referred to in paragraph (a);

                            (iii)  an order made under subsection 1335(2) in relation to penalty and disclosure proceedings;

                            (iv)  an order made under subsection 1335(2) in relation to proceedings referred to in paragraph (a) other than public interest proceedings;

                     (c)  any other proceedings in respect of a breach of an order referred to in paragraph (b);

                     (d)  an appeal to a Court against the following decisions or orders of a Court:

                              (i)  a decision or order made in relation to penalty and disclosure proceedings;

                             (ii)  a decision or order made in relation to proceedings referred to in paragraph (a);

                            (iii)  a decision or order made under subsection 1335(2) in relation to penalty and disclosure proceedings;

                            (iv)  a decision or order made under subsection 1335(2) in relation to proceedings referred to in paragraph (a) other than public interest proceedings.

             (5)  To avoid doubt, subsection (3) does not prevent ASIC from:

                     (a)  making a determination under subsection 708AA(3), 708A(2), 713(6), 1012DAA(3), 1012DA(2) or 1013FA(3) of this Act; or

                     (b)  making an order under section 91 of the ASIC Act; or

                     (c)  accepting an undertaking under section 93AA of the ASIC Act; or

                     (d)  bringing proceedings to enforce the determination, order or undertaking.

1317DAH  Compliance period for infringement notice

             (1)  Subject to this section, the compliance period for an infringement notice is a period of 28 days beginning on the day after the day on which the infringement notice is issued.

             (2)  ASIC may extend, by notice in writing, the compliance period for the infringement notice if ASIC is satisfied that it is appropriate to do so.

             (3)  Only one extension may be given and the extension must not be for longer than 28 days.

             (4)  Notice of the extension must be given to the disclosing entity that was issued with the infringement notice.

             (5)  A failure to comply with subsection (4) does not affect the validity of the extension.

             (6)  If ASIC extends the compliance period for an infringement notice, a reference in this Act to the compliance period for an infringement notice is taken to be a reference to the compliance period as so extended.

1317DAI  Withdrawal of infringement notice

Disclosing entity may seek withdrawal

             (1)  If an infringement notice is issued to a disclosing entity, the disclosing entity may make written representations to ASIC seeking the withdrawal of the infringement notice.

             (2)  Evidence or information that a representative of the disclosing entity gives ASIC in the course of making representations under subsection (1) is:

                     (a)  not admissible in evidence against the disclosing entity in any proceedings; and

                     (b)  not admissible in evidence against a representative of the disclosing entity in any proceedings (other than proceedings for an offence based on the evidence or information given being false or misleading).

Withdrawal

             (3)  Subject to subsection (4), ASIC may withdraw the infringement notice (whether or not the disclosing entity has made representations seeking the withdrawal) if ASIC is satisfied that it is appropriate to do so.

             (4)  ASIC must not withdraw the infringement notice if subsection 1317DAF(3) is satisfied.

Withdrawal notice

             (5)  The withdrawal must be made by notice in writing and must be given to the disclosing entity.

             (6)  The withdrawal notice must state:

                     (a)  the name and address of the disclosing entity; and

                     (b)  the day on which the infringement notice was issued to the disclosing entity; and

                     (c)  that the infringement notice is withdrawn; and

                     (d)  that civil proceedings under Part 9.4B may be brought against the disclosing entity for a contravention of the provision specified in the infringement notice; and

                     (e)  that a prosecution for an offence based on the provision specified in the infringement notice may be brought against the disclosing entity.

Refund of penalty

             (7)  If:

                     (a)  the disclosing entity pays the penalty specified in the infringement notice; and

                     (b)  the infringement notice is withdrawn after the disclosing entity pays the penalty;

ASIC must refund to the disclosing entity an amount equal to the amount paid.

1317DAJ  Publication in relation to infringement notices

             (1)  If:

                     (a)  ASIC issues an infringement notice to a disclosing entity; and

                     (b)  subsection 1317DAF(3) (compliance with the infringement notice) is satisfied;

ASIC may publish details of the disclosing entity’s compliance with the infringement notice under subsection (2) or (3) or under both of those subsections.

             (2)  ASIC publishes details of the disclosing entity’s compliance with the infringement notice under this subsection if it publishes a copy of the infringement notice in the Gazette together with the following statements:

                     (a)  a statement that the disclosing entity has complied with the infringement notice;

                     (b)  a statement that compliance with the notice is not an admission of guilt or liability;

                     (c)  a statement that the disclosing entity is not regarded as having contravened the provision specified in the notice.

             (3)  ASIC publishes details of the disclosing entity’s compliance with the infringement notice under this subsection if:

                     (a)  ASIC issues a statement (whether written or oral) about the disclosing entity’s compliance with the infringement notice; and

                     (b)  the statement is limited to an accurate summary of the infringement notice including:

                              (i)  the name of the disclosing entity; and

                             (ii)  the amount of the penalty payable under the notice in relation to the alleged contravention; and

                            (iii)  the conduct specified in the notice as the conduct in relation to which the infringement notice was issued;

                            together with the following statements:

                            (iv)  a statement that the disclosing entity has complied with the infringement notice;

                             (v)  a statement that compliance with the notice is not an admission of guilt or liability;

                            (vi)  a statement that the relevant disclosing entity is not regarded as having contravened the provision specified in the notice.

             (4)  ASIC must not otherwise publish details of:

                     (a)  an infringement notice; or

                     (b)  a disclosing entity’s compliance with an infringement notice.

Failure to comply with this subsection is not an offence.


 

Part 9.4BCivil consequences of contravening civil penalty provisions

  

1317DA  Definitions

                   In this Act:

corporation/scheme civil penalty provision means a provision referred to in subsection 1317E(1), other than in paragraphs 1317E(1)(jaab) to (jg).

financial services civil penalty provision means a provision referred to in any of paragraphs 1317E(1)(jaab) and (jaai) to (jg).

1317E  Declarations of contravention

             (1)  If a Court is satisfied that a person has contravened 1 of the following provisions, it must make a declaration of contravention:

                     (a)  subsections 180(1) and 181(1) and (2), 182(1) and (2), 183(1) and (2) (officers’ duties);

                     (b)  subsection 209(2) (related parties rules);

                     (c)  subsections 254L(2), 256D(3), 259F(2) and 260D(2) (share capital transactions);

                     (d)  subsection 344(1) (requirements for financial reports);

                     (e)  subsection 588G(2) (insolvent trading);

                      (f)  subsection 601FC(5) (duties of responsible entity)

                     (g)  subsection 601FD(3) (duties of officers of responsible entity)

                     (h)  subsection 601FE(3) (duties of employees of responsible entity)

                      (i)  subsection 601FG(2) (acquisition of interest in scheme by responsible entity)

                      (j)  subsection 601JD(3) (duties of members);

                    (ja)  subsection 601UAA(2) (duties of officers of licensed trustee company);

                 (jaaa)  subsection 601UAB(2) (duties of employees of licensed trustee company);

                 (jaab)  subsection 674(2), 674(2A), 675(2) or 675(2A) (continuous disclosure);

                 (jaac)  subsection 798H(1) (complying with market integrity rules);

                 (jaad)  subsections 961K(1) and (2) (financial services licensee responsible for breach of certain best interests duties);

                 (jaae)  section 961L (financial services licensee to ensure compliance with certain best interests duties);

                 (jaaf)  subsection 961Q(1) (authorised representative responsible for breach of certain best interests duties);

                 (jaag)  section 962P (charging ongoing fee after termination of ongoing fee arrangement);

                 (jaah)  subsection 962S(1) (fee recipient must give fee disclosure statement);

                  (jaai)  subsections 963E(1) and (2) (financial services licensee responsible for breach of ban on conflicted remuneration);

                  (jaaj)  section 963F (financial services licensee must ensure representatives do not accept conflicted remuneration);

                 (jaak)  subsection 963G(1) (authorised representative must not accept conflicted remuneration);

                  (jaal)  section 963J (employer must not pay employees conflicted remuneration);

                (jaam)  section 963K (financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative);

                 (jaan)  subsection 964A(1) (platform operator must not accept volume‑based shelf‑space fees);

                 (jaao)  subsections 964D(1) and (2) (financial services licensee responsible for breach of asset‑based fees on borrowed amounts);

                 (jaap)  subsection 964E(1) (authorised representative must not charge asset‑based fees on borrowed amounts);

                 (jaaq)  section 965 (anti‑avoidance of Part 7.7A provisions);

                   (jaa)  subsection 985E(1) (issuing or increasing limit of margin lending facility without having made assessment etc.);

                  (jab)  subsection 985H(1) (failure to assess a margin lending facility as unsuitable);

                   (jac)  subsection 985J(1) (failure to give assessment to retail client if requested before issue of facility or increase in limit);

                  (jad)  subsection 985J(2) (failure to give assessment to retail client if requested after issue of facility or increase in limit);

                   (jae)  subsection 985J(4) (demanding payment to give assessment to retail client);

                   (jaf)  subsection 985K(1) (issuing or increasing limit of margin lending facility if unsuitable);

                   (jag)  section 985L (making issue of margin lending facility conditional on retail client agreeing to receive communications through agent);

                  (jah)  subsection 985M(1) (failure to notify of margin call where there is no agent);

                   (jai)  subsection 985M(2) (failure to notify of margin call where there is an agent);

                    (jb)  section 1041A (market manipulation);

                    (jc)  subsection 1041B(1) (false trading and market rigging—creating a false or misleading appearance of active trading etc.);

                    (jd)  subsection 1041C(1) (false trading and market rigging—artificially maintaining etc. market price);

                    (je)  section 1041D (dissemination of information about illegal transactions);

                     (jf)  subsection 1043A(1) (insider trading);

                    (jg)  subsection 1043A(2) (insider trading);

                     (k)  subclause 29(6) of Schedule 4.

These provisions are the civil penalty provisions.

Note:          Once a declaration has been made ASIC can then seek a pecuniary penalty order (section 1317G) or (in the case of a corporation/scheme civil penalty provision) a disqualification order (section 206C).

             (2)  A declaration of contravention must specify the following:

                     (a)  the Court that made the declaration;

                     (b)  the civil penalty provision that was contravened;

                     (c)  the person who contravened the provision;

                     (d)  the conduct that constituted the contravention;

                     (e)  if the contravention is of a corporation/scheme civil penalty provision—the corporation or registered scheme to which the conduct related.

1317F  Declaration of contravention is conclusive evidence

                   A declaration of contravention is conclusive evidence of the matters referred to in subsection 1317E(2).

1317G  Pecuniary penalty orders

Corporation/scheme civil penalty provisions

             (1)  A Court may order a person to pay the Commonwealth a pecuniary penalty of up to $200,000 if:

                     (a)  a declaration of contravention by the person has been made under section 1317E; and

                    (aa)  the contravention is of a corporation/scheme civil penalty provision; and

                     (b)  the contravention:

                              (i)  materially prejudices the interests of the corporation or scheme, or its members; or

                             (ii)  materially prejudices the corporation’s ability to pay its creditors; or

                            (iii)  is serious.

Financial services civil penalty provisions

          (1A)  A Court may order a person to pay the Commonwealth a pecuniary penalty of the relevant maximum amount if:

                     (a)  a declaration of contravention by the person has been made under section 1317E; and

                     (b)  the contravention is of a financial services civil penalty provision not dealt with in subsections (1E) to (1G); and

                     (c)  the contravention:

                              (i)  materially prejudices the interests of acquirers or disposers of the relevant financial products; or

                             (ii)  materially prejudices the issuer of the relevant financial products or, if the issuer is a corporation or scheme, the members of that corporation or scheme; or

                            (iii)  is serious.

          (1B)  The relevant maximum amount is:

                     (a)  $200,000 for an individual; or

                     (b)  $1 million for a body corporate.

Market integrity rules

          (1C)  A Court may order a person to pay the Commonwealth a pecuniary penalty if:

                     (a)  a declaration of contravention by the person has been made under section 1317E; and

                     (b)  the contravention is of subsection 798H(1) (complying with market integrity rules).

          (1D)  The maximum amount that the court may order the person to pay for contravening a market integrity rule is the penalty amount set out in the market integrity rules for the rule.

Best interests obligations and remuneration

          (1E)  A Court may order a person to pay the Commonwealth a pecuniary penalty if:

                     (a)  a declaration of contravention by the person has been made under section 1317E; and

                     (b)  the contravention is of one of the following provisions:

                              (i)  subsections 961K(1) and (2) (financial services licensee responsible for breach of certain best interests duties);

                             (ii)  section 961L (financial services licensee to ensure compliance with certain best interests duties);

                            (iii)  subsection 961Q(1) (authorised representative responsible for breach of certain best interests duties);

                            (iv)  section 962P (charging ongoing fee after termination of ongoing fee arrangement);

                             (v)  subsection 962S(1) (fee recipient must give fee disclosure statement);

                            (vi)  subsections 963E(1) and (2) (financial services licensee must not accept conflicted remuneration);

                           (vii)  section 963F (financial services licensee must ensure representatives do not accept conflicted remuneration);

                          (viii)  subsection 963G(1) (authorised representative must not accept conflicted remuneration);

                            (ix)  section 963J (employer must not pay employees conflicted remuneration);

                             (x)  section 963K (financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative);

                            (xi)  subsection 964A(1) (platform operator) must not accept volume‑based shelf‑space fees);

                           (xii)  subsections 964D(1) and (2) (financial services licensee must not charge asset‑based fees on borrowed amounts);

                          (xiii)  subsection 964E(1) (authorised representative must not charge asset‑based fees on borrowed amounts);

                          (xiv)  section 965 (anti‑avoidance of Part 7.7A provisions).

           (1F)  The maximum amount that the court may order the person to pay for contravening a provision mentioned in paragraph (1E)(b) (except a provision mentioned in subparagraph (1E)(b)(iv) or (v)) is:

                     (a)  $200,000 for an individual; or

                     (b)  $1 million for a body corporate.

          (1G)  The maximum amount that the court may order the person to pay for contravening a provision mentioned in subparagraph (1E)(b)(iv) or (v) is:

                     (a)  $50,000 for an individual; or

                     (b)  $250,000 for a body corporate.

Penalty a civil debt etc.

             (2)  The penalty is a civil debt payable to ASIC on the Commonwealth’s behalf. ASIC or the Commonwealth may enforce the order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

1317GA  Refund orders—contravention of section 962P

             (1)  A Court may order that a person (the fee recipient) refund a fee paid to the fee recipient by another person (the client) if the Court is satisfied that:

                     (a)  the fee recipient knowingly or recklessly contravened section 962P in charging the client the fee (charging ongoing fee after termination of ongoing fee arrangement); and

                     (b)  it is reasonable in all the circumstances to make the order.

Note:          An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E.

Applications for order

             (2)  The Court may make the order under this section:

                     (a)  on its own initiative, during proceedings before the Court; or

                     (b)  on application by ASIC; or

                     (c)  on the application of the client.

When order may be made

             (3)  The Court must not make an order under this section in relation to fees paid more than 6 years before the proceedings for the order are commenced.

Recovery of amount as a debt

             (4)  If the Court makes an order that the fee recipient refund an amount specified in the order to the client, the client may recover the amount as a debt due to the client.

1317H  Compensation orders—corporation/scheme civil penalty provisions

Compensation for damage suffered

             (1)  A Court may order a person to compensate a corporation or registered scheme for damage suffered by the corporation or scheme if:

                     (a)  the person has contravened a corporation/scheme civil penalty provision in relation to the corporation or scheme; and

                     (b)  the damage resulted from the contravention.

The order must specify the amount of the compensation.

Note:          An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E.

Damage includes profits

             (2)  In determining the damage suffered by the corporation or scheme for the purposes of making a compensation order, include profits made by any person resulting from the contravention or the offence.

Damage includes diminution of value of scheme property

             (3)  In determining the damage suffered by the scheme for the purposes of making a compensation order, include any diminution in the value of the property of the scheme.

             (4)  If the responsible entity for a registered scheme is ordered to compensate the scheme, the responsible entity must transfer the amount of the compensation to scheme property. If anyone else is ordered to compensate the scheme, the responsible entity may recover the compensation on behalf of the scheme.

Recovery of damage

             (5)  A compensation order may be enforced as if it were a judgment of the Court.

1317HA  Compensation orders—financial services civil penalty provisions

Compensation for damage suffered

             (1)  A Court may order a person (the liable person) to compensate another person (including a corporation), or a registered scheme, for damage suffered by the person or scheme if:

                     (a)  the liable person has contravened a financial services civil penalty provision; and

                     (b)  the damage resulted from the contravention.

The order must specify the amount of compensation.

Note:          An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E.

Damage includes profits

             (2)  In determining the damage suffered by a person or scheme for the purposes of making a compensation order, include profits made by any person resulting from the contravention.

Damage to scheme includes diminution of value of scheme property

             (3)  In determining the damage suffered by a registered scheme for the purposes of making a compensation order, include any diminution in the value of the property of the scheme.

             (4)  If the responsible entity for a registered scheme is ordered to compensate the scheme, the responsible entity must transfer the amount of the compensation to the scheme property. If anyone else is ordered to compensate the scheme, the responsible entity may recover the compensation on behalf of the scheme.

Recovery of damage

             (5)  A compensation order may be enforced as if it were a judgment of the Court.

1317HB  Compensation orders—market integrity rules

Compensation for damage suffered

             (1)  A Court may order a person (the liable person) to compensate another person (including a corporation), or a registered scheme, for damage suffered by the person or scheme if:

                     (a)  the liable person has contravened subsection 798H(1) (complying with market integrity rules); and

                     (b)  the damage resulted from the contravention.

The order must specify the amount of compensation.

Note:          An order may be made under this subsection whether or not a declaration of contravention has been made under section 1317E.

             (2)  Subsection (1) does not apply in relation to a contravention by the operator of a licensed market acting in that capacity.

Damage includes profits

             (3)  In determining the damage suffered by a person or scheme for the purposes of making a compensation order, include profits made by any person resulting from the contravention.

Damage to scheme includes diminution of value of scheme property

             (4)  In determining the damage suffered by a registered scheme for the purposes of making a compensation order, include any diminution in the value of the property of the scheme.

Recovery of damage

             (5)  A compensation order may be enforced as if it were a judgment of the Court.

1317J  Who may apply for a declaration or order

Application by ASIC

             (1)  ASIC may apply for a declaration of contravention, a pecuniary penalty order or a compensation order.

Application by corporation

             (2)  The corporation, or the responsible entity for the registered scheme, may apply for a compensation order.

Note:          An application for a compensation order may be made whether or not a declaration of contravention has been made under section 1317E.

             (3)  The corporation, or the responsible entity for the registered scheme, may intervene in an application for a declaration of contravention or a pecuniary penalty order in relation to the corporation or scheme. The corporation or responsible entity is entitled to be heard on all matters other than whether the declaration or order should be made.

Compensation order relating to financial services civil penalty provision—any other person who suffers damage may apply

          (3A)  Any other person who suffers damage in relation to a contravention, or alleged contravention, of a financial services civil penalty provision may apply for a compensation order under section 1317HA.

Note:          An application for a compensation order may be made whether or not a declaration of contravention has been made under section 1317E.

No one else may apply

             (4)  No person may apply for a declaration of contravention, a pecuniary penalty order or a compensation order unless permitted by this section.

             (5)  Subsection (4) does not exclude the operation of the Director of Public Prosecutions Act 1983.

1317K  Time limit for application for a declaration or order

                   Proceedings for a declaration of contravention, a pecuniary penalty order, or a compensation order, may be started no later than 6 years after the contravention.

1317L  Civil evidence and procedure rules for declarations of contravention and civil penalty orders

                   The Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for:

                     (a)  a declaration of contravention; or

                     (b)  a pecuniary penalty order.

1317M  Civil proceedings after criminal proceedings

                   A court must not make a declaration of contravention or a pecuniary penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.

1317N  Criminal proceedings during civil proceedings

             (1)  Proceedings for a declaration of contravention or pecuniary penalty order against a person are stayed if:

                     (a)  criminal proceedings are started or have already been started against the person for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.

             (2)  The proceedings for the declaration or order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the declaration or order are dismissed.

1317P  Criminal proceedings after civil proceedings

             (1)  Subject to subsection (2), criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether:

                     (a)  a declaration of contravention has been made against the person; or

                     (b)  a pecuniary penalty order has been made against the person; or

                   (ba)  a refund order has been made against the person; or

                     (c)  a compensation order has been made against the person; or

                     (d)  the person has been disqualified from managing a corporation under Part 2D.6; or

                     (e)  an order has been made against the person by ASIC under section 920A (banning orders) or by the Court under section 921A (disqualification by Court).

             (2)  Subsection (1) does not apply if:

                     (a)  an infringement notice is issued to the person for an alleged contravention of subsection 674(2) or 675(2); and

                     (b)  the infringement notice is not withdrawn under section 1317DAI.

1317Q  Evidence given in proceedings for penalty not admissible in criminal proceedings

                   Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.

1317R  ASIC requiring person to assist

             (1)  ASIC may require a person to give all reasonable assistance in connection with:

                     (a)  an application for a declaration of contravention or a pecuniary penalty order; or

                     (b)  criminal proceedings for an offence against this Act.

             (2)  ASIC can require the person to assist in connection with an application for a declaration or order if, and only if:

                     (a)  it appears to ASIC that someone other than the person required to assist may have contravened a civil penalty provision; and

                     (b)  ASIC suspects or believes that the person required to assist can give information relevant to the application.

             (3)  ASIC can require the person to assist in connection with criminal proceedings if, and only if:

                     (a)  it appears to ASIC that the person required to assist is unlikely to be a defendant in the proceedings; and

                     (b)  the person required to assist is, in relation to a person who is or should be a defendant in the proceedings:

                              (i)  an employee or agent (including a banker or auditor) of the other person; or

                             (ii)  if the other person is a corporation—an officer or employee of the other person; or

                            (iii)  if the other person is an individual—a partner of the other person.

             (4)  ASIC can require the person to assist regardless of whether:

                     (a)  an application for the declaration or penalty order has actually been made; or

                     (b)  criminal proceedings for the offence have actually begun.

             (5)  The person cannot be required to assist if they are or have been a lawyer for:

                     (a)  in an application for a declaration or penalty order—the person suspected of the contravention; or

                     (b)  in criminal proceedings—a defendant or likely defendant in the proceedings.

             (6)  The requirement to assist must be given in writing.

             (7)  The Court may order the person to comply with the requirement in a specified way. Only ASIC may apply to the Court for an order under this subsection.

Note:          The person must comply with the requirement and may commit an offence if they do not, even if there is no order under this subsection (see section 104 and subsection 1311(1)).

             (8)  This section does not limit and is not limited by section 49 of the ASIC Act.

1317S  Relief from liability for contravention of civil penalty provision

             (1)  In this section:

eligible proceedings:

                     (a)  means proceedings for a contravention of a civil penalty provision (including proceedings under section 588M, 588W, 961M, 1317GA, 1317H or 1317HA); and

                     (b)  does not include proceedings for an offence (except so far as the proceedings relate to the question whether the court should make an order under section 588K, 1317H or 1317HA).

             (2)  If:

                     (a)  eligible proceedings are brought against a person; and

                     (b)  in the proceedings it appears to the court that the person has, or may have, contravened a civil penalty provision but that:

                              (i)  the person has acted honestly; and

                             (ii)  having regard to all the circumstances of the case (including, where applicable, those connected with the person’s appointment as an officer, or employment as an employee, of a corporation or of a Part 5.7 body), the person ought fairly to be excused for the contravention;

the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention.

             (3)  In determining under subsection (2) whether a person ought fairly to be excused for a contravention of section 588G, the matters to which regard is to be had include, but are not limited to:

                     (a)  any action the person took with a view to appointing an administrator of the company or Part 5.7 body; and

                     (b)  when that action was taken; and

                     (c)  the results of that action.

             (4)  If a person thinks that eligible proceedings will or may be begun against them, they may apply to the Court for relief.

             (5)  On an application under subsection (4), the Court may grant relief under subsection (2) as if the eligible proceedings had been begun in the Court.

             (6)  For the purposes of subsection (2) as applying for the purposes of a case tried by a judge with a jury:

                     (a)  a reference in that subsection to the court is a reference to the judge; and

                     (b)  the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.

             (7)  Nothing in this section limits, or is limited by, section 1318.


 

Part 9.5Powers of Courts

  

1318  Power to grant relief

             (1)  If, in any civil proceeding against a person to whom this section applies for negligence, default, breach of trust or breach of duty in a capacity as such a person, it appears to the court before which the proceedings are taken that the person is or may be liable in respect of the negligence, default or breach but that the person has acted honestly and that, having regard to all the circumstances of the case, including those connected with the person’s appointment, the person ought fairly to be excused for the negligence, default or breach, the court may relieve the person either wholly or partly from liability on such terms as the court thinks fit.

             (2)  Where a person to whom this section applies has reason to apprehend that any claim will or might be made against the person in respect of any negligence, default, breach of trust or breach of duty in a capacity as such a person, the person may apply to the Court for relief, and the Court has the same power to relieve the person as it would have had under subsection (1) if it had been a court before which proceedings against the person for negligence, default, breach of trust or breach of duty had been brought.

             (3)  Where a case to which subsection (1) applies is being tried by a judge with a jury, the judge after hearing the evidence may, if he or she is satisfied that the defendant ought pursuant to that subsection to be relieved either wholly or partly from the liability sought to be enforced against the person, withdraw the case in whole or in part from the jury and forthwith direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge thinks proper.

             (4)  This section applies to a person who is:

                     (a)  an officer or employee of a corporation; or

                     (b)  an auditor of a corporation, whether or not the person is an officer or employee of the corporation; or

                     (c)  an expert in relation to a matter:

                              (i)  relating to a corporation; and

                             (ii)  in relation to which the civil proceeding has been taken or the claim will or might arise; or

                     (d)  a receiver, receiver and manager, liquidator or other person appointed or directed by the Court to carry out any duty under this Act in relation to a corporation.

             (5)  This section does not apply to a corporation that is an Aboriginal and Torres Strait Islander corporation.

Note:          Similar provision is made in relation to Aboriginal and Torres Strait Islander corporations under section 576‑1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

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

                   Where, under this Act, the Court orders a meeting to be convened, the Court may, subject to this Act, give such directions with respect to the convening, holding or conduct of the meeting, and such ancillary or consequential directions in relation to the meeting, as it thinks fit.

1321  Appeals from decisions of receivers, liquidators etc.

             (1)  A person aggrieved by any act, omission or decision of:

                     (a)  a person administering a compromise, arrangement or scheme referred to in Part 5.1; or

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

                     (c)  an administrator of a company; or

                    (ca)  an administrator of a deed of company arrangement executed by a company; or

                     (d)  a liquidator or provisional liquidator of a company;

may appeal to the Court in respect of the act, omission or decision and the Court may confirm, reverse or modify the act or decision, or remedy the omission, as the case may be, and make such orders and give such directions as it thinks fit.

             (2)  Paragraph (1)(b) does not apply to a corporation that is an Aboriginal and Torres Strait Islander corporation.

Note:          Similar provision is made in relation to Aboriginal and Torres Strait Islander corporations under section 576‑10 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

1322  Irregularities

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

                     (a)  a reference to a proceeding under this Act is a reference to any proceeding whether a legal proceeding or not; and

                     (b)  a reference to a procedural irregularity includes a reference to:

                              (i)  the absence of a quorum at a meeting of a corporation, at a meeting of directors or creditors of a corporation, at a joint meeting of creditors and members of a corporation or at a meeting of members of a registered scheme; and

                             (ii)  a defect, irregularity or deficiency of notice or time.

             (2)  A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court and by order declares the proceeding to be invalid.

             (3)  A meeting held for the purposes of this Act, or a meeting notice of which is required to be given in accordance with the provisions of this Act, or any proceeding at such a meeting, is not invalidated only because of the accidental omission to give notice of the meeting or the non‑receipt by any person of notice of the meeting, unless the Court, on the application of the person concerned, a person entitled to attend the meeting or ASIC, declares proceedings at the meeting to be void.

       (3AA)  A meeting held for the purposes of this Act, or a meeting notice of which is required to be given in accordance with the provisions of this Act, or any proceeding at such a meeting, is not invalidated only because of the inability of a person to access the notice of meeting, unless the Court, on the application of the person concerned, a person entitled to attend the meeting or ASIC, declares proceedings at the meeting to be void.

Note:          Under paragraph 249J(3)(cb), a company may, in certain circumstances, give a member notice of a meeting by notifying the member that the notice of meeting is available and how the member may access the notice of meeting.

          (3A)  If a member does not have a reasonable opportunity to participate in a meeting of members, or part of a meeting of members, held at 2 or more venues, the meeting will only be invalid on that ground if:

                     (a)  the Court is of the opinion that:

                              (i)  a substantial injustice has been caused or may be caused; and

                             (ii)  the injustice cannot be remedied by any order of the Court; and

                     (b)  the Court declares the meeting or proceeding (or that part of it) invalid.

          (3B)  If voting rights are exercised in contravention of subsection 259D(3) (company controlling entity that holds shares in it), the meeting or the resolution on which the voting rights were exercised will only be invalid on that ground if:

                     (a)  the court is of the opinion that:

                              (i)  a substantial injustice has been caused or may be caused; and

                             (ii)  the injustice cannot be remedied by any order of the court; and

                     (b)  the court declares the meeting or resolution invalid.

             (4)  Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:

                     (a)  an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation;

                     (b)  an order directing the rectification of any register kept by ASIC under this Act;

                     (c)  an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a);

                     (d)  an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;

and may make such consequential or ancillary orders as the Court thinks fit.

             (5)  An order may be made under paragraph (4)(a) or (c) notwithstanding that the contravention or failure referred to in the paragraph concerned resulted in the commission of an offence.

             (6)  The Court must not make an order under this section unless it is satisfied:

                     (a)  in the case of an order referred to in paragraph (4)(a):

                              (i)  that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature;

                             (ii)  that the person or persons concerned in or party to the contravention or failure acted honestly; or

                            (iii)  that it is just and equitable that the order be made; and

                     (b)  in the case of an order referred to in paragraph (4)(c)—that the person subject to the civil liability concerned acted honestly; and

                     (c)  in every case—that no substantial injustice has been or is likely to be caused to any person.

1323  Power of Court to prohibit payment or transfer of money, financial products or other property

             (1)  Where:

                     (a)  an investigation is being carried out under the ASIC Act or this Act in relation to an act or omission by a person, being an act or omission that constitutes or may constitute a contravention of this Act; or

                     (b)  a prosecution has been begun against a person for a contravention of this Act; or

                     (c)  a civil proceeding has been begun against a person under this Act;

and the Court considers it necessary or desirable to do so for the purpose of protecting the interests of a person (in this section called an aggrieved person) to whom the person referred to in paragraph (a), (b) or (c), as the case may be, (in this section called the relevant person), is liable, or may be or become liable, to pay money, whether in respect of a debt, by way of damages or compensation or otherwise, or to account for financial products or other property, the Court may, on application by ASIC or by an aggrieved person, make one or more of the following orders:

                     (d)  an order prohibiting a person who is indebted to the relevant person or to an associate of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed;

                     (e)  an order prohibiting a person holding money, financial products or other property, on behalf of the relevant person, or on behalf of an associate of the relevant person, from paying all or any of the money, or transferring, or otherwise parting with possession of, the financial products or other property, to, or to another person at the direction or request of, the person on whose behalf the money, financial products or other property, is or are held;

                      (f)  an order prohibiting the taking or sending out of this jurisdiction, or out of Australia, by a person of money of the relevant person or of an associate of the relevant person;

                     (g)  an order prohibiting the taking, sending or transfer by a person of financial products or other property of the relevant person, or of an associate of the relevant person:

                              (i)  from a place in this jurisdiction to a place outside this jurisdiction (including the transfer of financial products from a register in this jurisdiction to a register outside this jurisdiction); or

                             (ii)  from a place in Australia to a place outside Australia (including the transfer of financial products from a register in Australia to a register outside Australia);

                     (h)  an order appointing:

                              (i)  if the relevant person is a natural person—a receiver or trustee, having such powers as the Court orders, of the property or of part of the property of that person; or

                             (ii)  if the relevant person is a body corporate—a receiver or receiver and manager, having such powers as the Court orders, of the property or of part of the property of that person;

                      (j)  if the relevant person is a natural person—an order requiring that person to deliver up to the Court his or her passport and such other documents as the Court thinks fit;

                     (k)  if the relevant person is a natural person—an order prohibiting that person from leaving this jurisdiction, or Australia, without the consent of the Court.

          (2A)  A reference in paragraph (1)(g) or (h) to property of a person includes a reference to property that the person holds otherwise than as sole beneficial owner, for example:

                     (a)  as trustee for, as nominee for, or otherwise on behalf of or on account of, another person; or

                     (b)  in a fiduciary capacity.

          (2B)  Subsection (2A) is to avoid doubt, is not to limit the generality of anything in subsection (1) and is not to affect by implication the interpretation of any other provision of this Act.

             (2)  An order under subsection (1) prohibiting conduct may prohibit the conduct either absolutely or subject to conditions.

             (3)  Where an application is made to the Court for an order under subsection (1), the Court may, if in the opinion of the Court it is desirable to do so, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.

             (4)  On an application under subsection (1), the Court must not require the applicant or any other person, as a condition of granting an interim order under subsection (3), to give an undertaking as to damages.

             (5)  Where the Court has made an order under this section on a person’s application, the Court may, on application by that person or by any person affected by the order, make a further order discharging or varying the first‑mentioned order.

             (6)  An order made under subsection (1) or (2) may be expressed to operate for a specified period or until the order is discharged by a further order under this section.

             (7)  Nothing in this section affects the powers that the Court has apart from this section.

             (8)  This section has effect subject to the Bankruptcy Act 1966.

             (9)  A person must not contravene an order by the Court under this section that is applicable to the person.

           (10)  An offence based on subsection (9) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

1324  Injunctions

             (1)  Where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:

                     (a)  a contravention of this Act; or

                     (b)  attempting to contravene this Act; or

                     (c)  aiding, abetting, counselling or procuring a person to contravene this Act; or

                     (d)  inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or

                     (e)  being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or

                      (f)  conspiring with others to contravene this Act;

the Court may, on the application of ASIC, or of a person whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the Court thinks appropriate, restraining the first‑mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.

          (1A)  For the purposes of subsection (1):

                     (a)  a contravention of this Act affects the interests of a creditor or member of a company if the insolvency of the company is an element of the contravention; and

                     (b)  a company’s contravention of:

                              (i)  paragraph 257A(1)(a) (share buy‑back not to prejudice ability to pay creditors); or

                            (ia)  paragraph 256B(1)(b) (share capital reduction not to prejudice ability to pay creditors); or

                             (ii)  paragraph 260A(1)(a) (financial assistance for share acquisition not to prejudice company or shareholders or ability to pay creditors);

                            affects the interests of a creditor or member of the company; and

                     (c)  a company’s contravention of paragraph 256B(1)(a) (fair and reasonable test for share capital reduction) affects the interests of a member of the company.

This subsection does not limit subsection (1) in any way.

          (1B)  If the ground relied on in an application for an injunction is conduct or proposed conduct of a company or other person that it is alleged constitutes, or would constitute:

                     (a)  a contravention of paragraph 256B(1)(a) or (b), section 257A or paragraph 260A(1)(a); or

                     (b)  a contravention of a provision of this Act involving the insolvency of the company because of:

                              (i)  the company making a reduction of its share capital to which Division 1 of Part 2J.1 applies; or

                             (ii)  the company buying back its shares; or

                            (iii)  the company giving financial assistance to which Part 2J.3 applies;

the Court must assume that the conduct constitutes, or would constitute, a contravention of that paragraph, section or provision unless the company or person proves otherwise.

             (2)  Where a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act to do, the Court may, on the application of:

                     (a)  ASIC; or

                     (b)  any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing;

grant an injunction, on such terms as the Court thinks appropriate, requiring the first‑mentioned person to do that act or thing.

             (3)  Where an application for an injunction under subsection (1) or (2) has been made, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that that subsection applies.

             (4)  Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

             (5)  The Court may discharge or vary an injunction granted under subsection (1), (2) or (4).

             (6)  The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the person has previously engaged in conduct of that kind; and

                     (c)  whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.

             (7)  The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

                     (b)  whether or not the person has previously refused or failed to do that act or thing; and

                     (c)  whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.

             (8)  Where ASIC applies to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.

             (9)  In proceedings under this section against a person the Court may make an order under section 1323 in respect of the person.

           (10)  Where the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.

1324A  Provisions relating to prosecutions

                   In the prosecution of a person for an offence in respect of a contravention of a provision of Chapter 5C, 6CA or 6D or Part 7.10, the Court may do either or both of the following:

                     (a)  grant an injunction under section 1324 against the person in relation to:

                              (i)  the conduct that constitutes, or is alleged to constitute, the offence; or

                             (ii)  other conduct of that kind

                     (b)  make an order under section 1324B in respect of the person.

1324B  Order to disclose information or publish advertisements

                   Without limiting section 1324, if, on the application of ASIC, the Court is satisfied that a person has engaged in conduct constituting a contravention of a provision of Chapter 5C, 6CA or 6D, subsection 798H(1) or Part 7.10, the Court may make either or both of the following orders against that person or a person involved in the contravention:

                     (a)  an order requiring the person to whom it is directed to disclose, in the manner specified in the order, to:

                              (i)  the public; or

                             (ii)  a particular person; or

                            (iii)  a particular class of persons;

                            the information, or information of a kind, that is specified in the order and is in the person’s possession or to which the person has access;

                     (b)  an order requiring the person to whom it is directed to publish, at the person’s own expense, in the manner and at times specified in the order, advertisements whose terms are specified in, or are to be determined in accordance with, the order.

1325  Other orders

             (1)  Where, in a proceeding instituted under, or for a contravention of, subsection 201P(1), Chapter 5C, 6CA or 6D, subsection 798H(1) or Part 7.10, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage because of conduct of another person that was engaged in in contravention of subsection 201P(1), Chapter 5C, 6CA or 6D, subsection 798H(1) or Part 7.10, the Court may, whether or not it grants an injunction, or makes an order, under any other provision of this Act, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5)) if the Court considers that the order or orders concerned will compensate the first‑mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage.

             (2)  The Court may, on the application of a person who has suffered, or is likely to suffer, loss or damage because of conduct of another person that was engaged in in contravention of subsection 201P(1), Chapter 5C, 6CA or 6D, subsection 798H(1) or Part 7.10, or on the application of ASIC in accordance with subsection (3) on behalf of such a person or 2 or more such persons, make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (5)) if the Court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.

             (3)  Where, in a proceeding instituted for a contravention of subsection 201P(1), Chapter 5C, 6CA or 6D, subsection 798H(1) or Part 7.10 or instituted by ASIC under section 1324, a person is found to have engaged in conduct in contravention of subsection 201P(1), Chapter 5C, 6CA or 6D, subsection 798H(1) or Part 7.10, ASIC may make an application under subsection (2) on behalf of one or more persons identified in the application who have suffered, or are likely to suffer, loss or damage by the conduct, but ASIC must not make such an application except with the consent in writing given before the application is made by the person, or by each of the persons, on whose behalf the application is made.

             (4)  An application under subsection (2) may be made within 6 years after the day on which the cause of action arose.

             (5)  The orders referred to in subsections (1) and (2) are:

                     (a)  an order declaring the whole or any part of a contract made between the person who suffered, or is likely to suffer, the loss or damage and the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, or of a collateral arrangement relating to such a contract, to be void and, if the Court thinks fit, to have been void ab initio or at all times on and after a specified day before the order is made; and

                     (b)  an order varying such a contract or arrangement in such manner as is specified in the order and, if the Court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after a specified day before the order is made; and

                     (c)  an order refusing to enforce any or all of the provisions of such a contract; and

                     (d)  an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to refund money or return property to the person who suffered the loss or damage; and

                     (e)  an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage; and

                      (f)  an order directing the person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct, at the person’s own expense, to supply specified services to the person who suffered, or is likely to suffer, the loss or damage.

          (5A)  Subsections (1) and (2) have effect subject to section 1044B.

Note:          Section 1044B may limit the liability, under an order under subsection (1) or (2) of this section, of a person for his or her contravention of section 1041H (Misleading or deceptive conduct) or involvement in such a contravention.

             (6)  Where an application is made for an order under this section against a person, the Court may make an order under section 1323 in respect of the person.

1325A  Orders if contravention of Chapter 6, 6A, 6B or 6C

             (1)  The Court may make any order or orders (including a remedial order) that it considers appropriate if a person:

                     (a)  contravenes a provision of Chapter 6, 6A, 6B or 6C; or

                     (b)  contravenes a condition on a consent given by ASIC under section 652B; or

                     (c)  states in a notice under section 672B about securities that they do not know particular information about:

                              (i)  the securities; or

                             (ii)  someone who has a relevant interest in, or has given instructions in relation to, the securities.

Note 1:       Section 9 defines remedial order.

Note 2:       Sections 659B and 659C deal with court proceedings during and after a takeover bid.

             (2)  The Court may make any order or orders (including a remedial order) that it considers appropriate if:

                     (a)  the consideration offered under a takeover bid is or includes securities; and

                     (b)  the offers under the bid or the bidder’s statement states or implies that the securities will be able to be traded on a financial market (whether in Australia or elsewhere) and:

                              (i)  an application for admission to quotation is not made within 7 days after the start of the bid period; or

                             (ii)  permission for admission to quotation is not granted within 7 days after the end of the bid period.

Note:          Section 9 defines remedial order.

             (3)  An order under this section may be made on application by the following:

                     (a)  ASIC;

                     (b)  the company, or the responsible entity of the registered scheme, whose securities are involved in the contravention;

                     (c)  a member or former member of that company or scheme;

                     (d)  a person from whom the relevant interest in the securities were acquired;

                     (e)  a person whose interests are affected by the contravention.

1325B  Court may order bidder to make offers

             (1)  If a bidder making a takeover bid for a class of securities contravenes section 631 by failing to make offers under the bid within time and ASIC applies for an order under this section, the Court may:

                     (a)  order the bidder to send, to each holder of securities in that class, an offer to which the bidder’s statement relates within a specified time; and

                     (b)  make any ancillary orders it thinks appropriate including orders that the bidder:

                              (i)  send notices setting out specified information with the offer; and

                             (ii)  send copies of the notice within a specified period to the target and, if the target is listed, to the relevant market operator; and

                            (iii)  lodge a copy of the notice with ASIC within a specified period.

             (2)  Offers sent in accordance with an order under this section are taken to be made under a takeover bid.

1325C  Unfair or unconscionable agreements, payments or benefits

             (1)  The Court may make orders under subsection (2) if:

                     (a)  a body corporate gives, or enters into an agreement to give, a director or secretary of the body corporate or a related body corporate a benefit (including a payment or an agreement to employ them, or engage their services, for a fixed period); and

                     (b)  the agreement is entered into or the benefit is given:

                              (i)  within 12 months after the start of the bid period for a takeover bid for the securities of the body corporate or a related body corporate; or

                             (ii)  at a time when the directors of the body corporate have reason to believe that a takeover bid is to be made in respect of securities of the body corporate or a related body corporate; and

                     (c)  the Court is satisfied that the agreement or benefit was unfair or unconscionable having regard to the interests of the body corporate.

             (2)  The Court may:

                     (a)  declare the agreement, or any part of it, to be void or to have always been void; or

                     (b)  direct a person to whom a benefit is given, or another specified person, to:

                              (i)  make a payment or transfer property to the body corporate; or

                             (ii)  do any other act for the benefit of the body corporate; or

                     (c)  make any other order it considers appropriate.

             (3)  This section does not apply to an agreement or benefit that has been approved by an ordinary resolution of the body corporate (whether before or after the agreement was entered into or the benefit given) with no vote being cast by the person who is to receive the benefit or their associates.

             (4)  An order under this section may be made on application by:

                     (a)  the body corporate; or

                     (b)  ASIC; or

                     (c)  members who together hold shares carrying at least 10% of the votes attached to voting shares in the body corporate or a related body corporate;

within 12 months, or any longer period that the Court thinks appropriate in the circumstances, after the agreement is entered into or the benefit given.

1325D  Contravention due to inadvertence etc.

             (1)  The Court may declare that any act, document or matter:

                     (a)  is not invalid merely because a person has contravened a provision of Chapter 6, 6A, 6B or 6C; and

                     (b)  has had effect at all times as if there had been no contravention;

if the Court is satisfied that the contravention ought to be excused in all the circumstances.

             (2)  An application for an order under subsection (1) may be made by any interested person.

             (3)  If the Court is satisfied that in all the circumstances a contravention of a provision of Chapter 6, 6A, 6B or 6C ought to be excused, the Court must not make an order under section 1325A, 1325B or 1325C other than:

                     (a)  an order restraining the exercise of voting or other rights attached to securities; or

                     (b)  an order that an exercise of voting or other rights attached to securities be disregarded.

             (4)  In determining whether or not a contravention of a provision by a person ought to be excused, have regard to the contravention being caused by any of the following:

                     (a)  the person’s inadvertence or mistake;

                     (b)  the person not having been aware of a relevant fact or occurrence;

                     (c)  circumstances beyond the control of the person.

             (5)  This section applies notwithstanding anything contained in any other provision of this Chapter.

1325E  Orders to secure compliance

                   In order to secure compliance with an order under section 1325A, 1325B or 1325C, the Court may direct a person to:

                     (a)  do a specified act; or

                     (b)  refrain from doing a specified act.

1326  Effect of sections 1323, 1324 and 1325

                   Nothing in any of sections 1323, 1324, 1324A, 1324B, and 1325 limits the generality of anything else in any of those sections.

1327  Power of Court to punish for contempt of Court

                   Nothing in a provision of this Act that provides:

                     (a)  that a person must not contravene an order of the Court; or

                     (b)  that a person who contravenes an order of the Court contravenes a provision of this Act or is guilty of an offence;

affects the powers of the Court in relation to the punishment of contempts of the Court.


 

Part 9.6Proceedings

  

1330  ASIC’s power to intervene in proceedings

             (1)  ASIC may intervene in any proceeding relating to a matter arising under this Act.

             (2)  Where ASIC intervenes in a proceeding referred to in subsection (1), ASIC is taken to be a party to the proceeding and, subject to this Act, has all the rights, duties and liabilities of such a party.

             (3)  Without limiting the generality of subsection (2), ASIC may appear and be represented in any proceeding in which it wishes to intervene pursuant to subsection (1):

                     (a)  by a staff member of ASIC; or

                     (b)  by a natural person to whom, or by an officer or employee of a person or body to whom or to which, ASIC has delegated its functions and powers under this Act or such of those functions and powers as relate to a matter to which the proceeding relates; or

                     (c)  by solicitor or counsel.

1331  Civil proceedings not to be stayed

                   No civil proceedings under this Act are to be stayed merely because the proceeding discloses, or arises out of, the commission of an offence.

1332  Standard of proof

                   Where, in proceedings other than proceedings for an offence, it is necessary to establish, or for the Court to be satisfied, for any purpose relating to a matter arising under this Act, that:

                     (a)  a person has contravened a provision of this Act; or

                     (b)  default has been made in complying with a provision of this Act; or

                     (c)  an act or omission was unlawful by virtue of a provision of this Act; or

                     (d)  a person has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to a contravention, or a default in complying with, a provision of this Act;

it is sufficient if the matter referred to in paragraph (a), (b), (c) or (d) is established, or the Court is so satisfied, as the case may be, on the balance of probabilities.

1333  Evidence of contravention

                   For the purposes of this Act, a certificate that:

                     (a)  purports to be signed by the Registrar or other proper officer of an Australian court; and

                     (b)  states:

                              (i)  that a person was convicted by that court on a specified day of a specified offence; or

                             (ii)  that a person charged before that court with a specified offence was, on a specified day, found in that court to have committed the offence but that the court did not proceed to convict the person of the offence;

is, unless it is proved that the conviction was quashed or set aside, or that the finding was set aside or reversed, as the case may be, conclusive evidence:

                     (c)  if subparagraph (b)(i) applies—that the person was convicted of the offence on that day; and

                     (d)  if the offence was constituted by a contravention of a provision of a law—that the person contravened that provision.

1335  Costs

             (1)  Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.

          (1A)  Subsection (1) does not apply to a corporation that is an Aboriginal and Torres Strait Islander corporation.

Note:          Similar provision is made in relation to Aboriginal and Torres Strait Islander corporations under section 581‑20 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

             (2)  The costs of any proceeding before a court under this Act are to be borne by such party to the proceeding as the court, in its discretion, directs.

1336  Vesting of property

             (1)  Where an order is made by a court under this Act vesting property in a person:

                     (a)  subject to subsection (2), the property forthwith vests in the person named in the order without any conveyance, transfer or assignment; and

                     (b)  the person who applied for the order must, within 7 days after the passing and entering of the order, lodge an office copy of the order with such person (if any) as is specified for the purpose in the order.

             (2)  Where:

                     (a)  the property to which an order referred to in subsection (1) relates is property the transfer or transmission of which may be registered under a law of the Commonwealth, of a State or of a Territory; and

                     (b)  that law enables the registration of such an order;

the property, notwithstanding that it vests in equity in the person named in the order, does not vest in that person at law until the requirements of the law referred to in paragraph (a) have been complied with.

             (3)  Where:

                     (a)  property vests in a person by force of this Act; and

                     (b)  the property is property the transfer or transmission of which may be registered under a law of the Commonwealth, of a State or of a Territory; and

                     (c)  that law enables the person to be registered as the owner of that property;

that property, notwithstanding that it vests in equity in that person by force of this Act, does not vest in that person at law until the requirements of the law referred to in paragraph (b) have been complied with.


 

Part 9.6AJurisdiction and procedure of Courts

Division 1Civil jurisdiction

Subdivision APreliminary

1337A  Operation of Division

             (1)  This Division deals with:

                     (a)  the jurisdiction of courts in respect of civil matters arising under the Corporations legislation; and

                     (b)  the jurisdiction of courts in respect of matters arising under the Administrative Decisions (Judicial Review) Act 1977 involving or related to decisions made under the Corporations legislation by Commonwealth authorities and officers of the Commonwealth; and

                     (c)  the jurisdiction of courts in civil matters in respect of decisions made by officers of the Commonwealth to prosecute persons for offences against the Corporations legislation and related criminal justice process decisions.

             (2)  This Division operates to the exclusion of:

                     (a)  the Jurisdiction of Courts (Cross‑vesting) Act 1987; and

                     (b)  section 39B of the Judiciary Act 1903.

             (3)  This Division does not limit the operation of the provisions of the Judiciary Act 1903 other than section 39B.

             (4)  Without limiting subsection (3), this Division does not limit the operation of subsection 39(2) of the Judiciary Act 1903 in relation to civil matters arising under the Corporations legislation.

             (5)  Nothing in this Division affects any other jurisdiction of any court.

Subdivision BConferral of jurisdiction

1337B  Jurisdiction of Federal Court and State and Territory Supreme Courts

             (1)  Jurisdiction is conferred on the Federal Court of Australia with respect to civil matters arising under the Corporations legislation.

             (2)  Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the Supreme Court of:

                     (a)  each State; and

                     (b)  the Capital Territory; and

                     (c)  the Northern Territory;

with respect to civil matters arising under the Corporations legislation.

             (3)  Despite section 9 of the Administrative Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the Supreme Court of:

                     (a)  each State; and

                     (b)  the Capital Territory; and

                     (c)  the Northern Territory;

with respect to matters arising under that Act involving or related to decisions made, or proposed or required to be made, under the Corporations legislation by a Commonwealth authority or an officer of the Commonwealth.

Note 1:       The Federal Court also has jurisdiction with respect to these matters under that Act.

Note 2:       A Supreme Court may be required to transfer a proceeding with respect to such a matter to the Federal Court: see subsection 1337H(3).

             (4)  Subsection (3) applies to a decision made, or proposed or required to be made:

                     (a)  whether or not in the exercise of a discretion; and

                     (b)  whether before or after that subsection commences.

             (5)  The jurisdiction conferred on a Supreme Court by subsection (2) or (3) is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject.

             (6)  This section has effect subject to section 1337D.

1337C  Jurisdiction of Family Court and State Family Courts

             (1)  Jurisdiction is conferred on the Family Court with respect to civil matters arising under the Corporations legislation.

             (2)  Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977, jurisdiction is conferred on each State Family Court with respect to civil matters arising under the Corporations legislation.

             (3)  The jurisdiction conferred on a State Family Court by subsection (2) is not limited by any limits to which any other jurisdiction of the State Family Court may be subject.

             (4)  This section has effect subject to section 1337D.

1337D  Jurisdiction of courts (decisions to prosecute and related criminal justice process decisions made by Commonwealth officers)

             (1)  If a decision to prosecute a person for an offence against the Corporations legislation has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a State or Territory court:

                     (a)  neither the Federal Court nor the Family Court has jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and

                     (b)  jurisdiction with respect to any such matter is conferred on the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced.

             (2)  Subject to subsection (3), at any time when:

                     (a)  a prosecution for an offence against the Corporations legislation is before a State or Territory court; or

                     (b)  an appeal arising out of such a prosecution is before a State or Territory court;

the following apply:

                     (c)  neither the Federal Court nor the Family Court has jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

                     (d)  jurisdiction with respect to any such matter is conferred on the Supreme Court of the State or Territory in which the prosecution or appeal is before a court.

             (3)  Subsection (2) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.

             (4)  Where subsection (3) applies, the prosecutor may apply to the court for a permanent stay of the proceedings referred to in that subsection and the court may grant such a stay if the court determines that:

                     (a)  the matters that are the subject of the proceedings are more appropriately dealt with in the criminal justice process; and

                     (b)  a stay of proceedings will not substantially prejudice the person.

             (5)  Subsections (1), (2), (3) and (4) have effect despite anything in this Act or in any other law. In particular:

                     (a)  neither this Act, nor any other law, has the effect of giving the Federal Court or the Family Court jurisdiction contrary to subsection (1) or (2); and

                     (b)  neither section 9 of the Administrative Decisions (Judicial Review) Act 1977, nor any other law, has the effect of removing from the Supreme Court of a State, the Capital Territory or the Northern Territory the jurisdiction given to that Court by subsection (1) or (2).

             (6)  In this section:

appeal includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.

related criminal justice process decision, in relation to an offence, means a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

                     (a)  a decision in connection with the investigation, committal for trial or prosecution of the defendant; and

                     (b)  a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

                     (c)  a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

                     (d)  a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

                     (e)  a decision in connection with an appeal arising out of the prosecution.

1337E  Jurisdiction of lower courts

             (1)  Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the lower courts of:

                     (a)  each State; and

                     (b)  the Capital Territory; and

                     (c)  the Northern Territory;

with respect to civil matters (other than superior court matters) arising under the Corporations legislation.

             (2)  The jurisdiction conferred on a lower court by subsection (1):

                     (a)  is subject to the court’s general jurisdictional limits, so far as they relate to:

                              (i)  the amounts; or

                             (ii)  the value of property;

                            with which the court may deal; but

                     (b)  is not subject to the court’s other jurisdictional limits.

1337F  Appeals

             (1)  An appeal may not be instituted from a decision of the Federal Court to:

                     (a)  a State or Territory court; or

                     (b)  the Family Court.

             (2)  An appeal may not be instituted from a decision of a court of the Capital Territory to:

                     (a)  a court of a State or the Northern Territory; or

                     (b)  the Family Court.

             (3)  An appeal may not be instituted from a decision of a court (not being a State Family Court) of a State or the Northern Territory to:

                     (a)  the Federal Court; or

                     (b)  a court of another State or Territory; or

                     (c)  the Family Court; or

                     (d)  a State Family Court of that State.

             (4)  An appeal may not be instituted from a decision of the Family Court to:

                     (a)  the Federal Court; or

                     (b)  a State or Territory court.

             (5)  An appeal may not be instituted from a decision of a State Family Court of a State to:

                     (a)  the Federal Court; or

                     (b)  a court of another State or Territory; or

                     (c)  except in accordance with the law of the State under which the State Family Court is constituted—the Supreme Court of that State.

1337G  Courts to act in aid of each other

                   All courts having jurisdiction in:

                     (a)  civil matters arising under the Corporations legislation; or

                     (b)  matters referred to in subsection 1337B(3);

and the officers of, or under the control of, those courts must severally act in aid of, and be auxiliary to, each other in all those matters.

Subdivision CTransfer of proceedings

1337H  Transfer of proceedings by the Federal Court and State and Territory Supreme Courts

             (1)  This section applies to a proceeding (the relevant proceeding) in a court (the transferor court) if:

                     (a)  the relevant proceeding is:

                              (i)  a proceeding with respect to a civil matter arising under the Corporations legislation; or

                             (ii)  a subsection 1337B(3) proceeding; and

                     (b)  the transferor court is:

                              (i)  the Federal court; or

                             (ii)  a State or Territory Supreme Court.

             (2)  Subject to subsections (3), (4) and (5), if it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for:

                     (a)  the relevant proceeding; or

                     (b)  an application in the relevant proceeding;

to be determined by another court that has jurisdiction in the matters for determination in the relevant proceeding or application, the transferor court may transfer the relevant proceeding or application to that other court.

             (3)  If:

                     (a)  the relevant proceeding is a subsection 1337B(3) proceeding; and

                     (b)  the transferor court is a State or Territory Supreme Court;

the transferor court must transfer the relevant proceeding to the Federal Court unless the matter for determination in it arises out of, or relates to, another proceeding pending in any court of that State or Territory that:

                     (c)  arises, or a substantial part of which arises, under the Corporations legislation; and

                     (d)  is not a subsection 1337B(3) proceeding;

regardless of which proceeding was commenced first.

             (4)  Even if subsection (3) does not require a State or Territory Supreme Court to transfer a subsection 1337B(3) proceeding to the Federal Court, it may nevertheless do so if it considers that to be appropriate, having regard to the interests of justice, including the desirability of related proceedings being heard in the same State or Territory.

             (5)  If:

                     (a)  the relevant proceeding is a subsection 1337B(3) proceeding in relation to a matter; and

                     (b)  the transferor court is the Federal Court;

the transferor court may only transfer the relevant proceeding, or an application in the relevant proceeding, to a State or Territory Supreme Court if:

                     (c)  the matter arises out of, or relates to, another proceeding pending in any court of that State or Territory that:

                              (i)  arises, or a substantial part of which arises, under the Corporations legislation; and

                             (ii)  is not a subsection 1337B(3) proceeding;

                            regardless of which proceeding was commenced first; and

                     (d)  the transferor court considers the transfer to be appropriate, having regard to the interests of justice, including the desirability of related proceedings being heard in the same jurisdiction.

             (6)  Nothing in this section confers on a court jurisdiction that the court would not otherwise have.

             (7)  The fact that some references in this section to the interests of justice include the desirability of related proceedings being heard in the same jurisdiction does not of itself mean that other references to the interests of justice, in this section or elsewhere in this Act, do not include that matter.

1337J  Transfer of proceedings by Family Court and State Family Courts

             (1)  This section applies to a proceeding (the relevant proceeding) in a court (the transferor court) if:

                     (a)  the relevant proceeding is with respect to a civil matter arising under the Corporations legislation; and

                     (b)  the transferor court is:

                              (i)  the Family Court of Australia; or

                             (ii)  a State Family Court.

             (2)  If it appears to the transferor court:

                     (a)  that the relevant proceeding arises out of, or is related to, another proceeding pending in:

                              (i)  the Federal Court; or

                             (ii)  another State or Territory court;

                            and that the court in which the other proceeding is pending is the most appropriate court to determine the relevant proceeding; or

                     (b)  that having regard to:

                              (i)  whether, in the transferor court’s opinion, apart from this Division, the relevant proceeding, or a substantial part of it, would have been incapable of being instituted in the transferor court; and

                             (ii)  the extent to which, in the transferor court’s opinion, the matters for determination in the relevant proceeding are matters not within the transferor court’s jurisdiction apart from this Division; and

                            (iii)  the interests of justice;

                            the Federal Court, or another State or Territory court, is the most appropriate court to determine the relevant proceeding; or

                     (c)  that it is otherwise in the interests of justice that the Federal Court, or another State or Territory court, determine the relevant proceeding;

the transferor court must transfer the relevant proceeding to the Federal Court or to that other court.

             (3)  Subject to subsection (2), if it appears to the transferor court:

                     (a)  that the relevant proceeding arises out of, or is related to, another proceeding pending in another court that is:

                              (i)  the Family Court of Australia; or

                             (ii)  a State Family Court;

                            and that has jurisdiction under section 1337C in the matters for determination in the relevant proceeding and that the other court is the most appropriate court to determine the relevant proceeding; or

                     (b)  that it is otherwise in the interests of justice that the relevant proceeding be determined by another court that is:

                              (i)  the Family Court of Australia; or

                             (ii)  a State Family Court;

                            and that has jurisdiction under section 1337C in the matters for determination in the relevant proceeding;

the transferor court must transfer the relevant proceeding to the other court.

             (4)  If:

                     (a)  the transferor court transfers the relevant proceeding to another court; and

                     (b)  it appears to the transferor court that:

                              (i)  there is another proceeding pending in the transferor court that arises out of, or is related to, the relevant proceeding; and

                             (ii)  it is in the interests of justice that the other court also determine the other proceeding;

the transferor court must also transfer the other proceeding to the other court.

             (5)  Nothing in this section confers on a court jurisdiction that the court would not otherwise have.

1337K  Transfer of proceedings in lower courts

             (1)  This section applies to a proceeding (the relevant proceeding) in a court (the transferor court) if:

                     (a)  the relevant proceeding is with respect to a civil matter arising under the Corporations legislation; and

                     (b)  the transferor court is a lower court of a State or Territory.

             (2)  If it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for:

                     (a)  the relevant proceeding; or

                     (b)  an application in the relevant proceeding;

to be determined by another court that has jurisdiction in the matters for determination in the relevant proceeding or application, the transferor court may take action under whichever of subsections (3) and (4) applies.

             (3)  If the other court is also a lower court, the transferor court may transfer the relevant proceeding or application to the other court.

             (4)  If the other court is a superior court, the transferor court may:

                     (a)  transfer the relevant proceeding or application to the relevant Supreme Court; and

                     (b)  recommend that the relevant proceeding or application be transferred by the Supreme Court to the other court.

             (5)  The relevant Supreme Court is not bound to comply with a recommendation under subsection (4) and it may instead decide:

                     (a)  to deal with the relevant proceeding or application itself; or

                     (b)  to transfer the relevant proceeding or application to some other court (which could be the transferor court).

             (6)  Nothing in this section allows the relevant Supreme Court to transfer the relevant proceeding or application to another court otherwise than in accordance with section 1337H and the other requirements of this Division.

             (7)  Nothing in this section confers on a court jurisdiction that the court would not otherwise have.

             (8)  In this section:

relevant Supreme Court means the Supreme Court of the State or Territory of which the transferor court is a court.

1337L  Further matters for a court to consider when deciding whether to transfer a proceeding

                   In deciding whether to transfer under section 1337H, 1337J or 1337K a proceeding or application, a court must have regard to:

                     (a)  the principal place of business of any body corporate concerned in the proceeding or application; and

                     (b)  the place or places where the events that are the subject of the proceeding or application took place; and

                     (c)  the other courts that have jurisdiction to deal with the proceeding or application.

1337M  Transfer may be made at any stage

                   A court may transfer under section 1337H, 1337J or 1337K a proceeding or application:

                     (a)  on the application of a party made at any stage; or

                     (b)  of the court’s own motion.

1337N  Transfer of documents

                   If, under section 1337H, 1337J or 1337K, a court (the transferor court) transfers a proceeding, or an application in a proceeding, to another court:

                     (a)  the Registrar or other proper officer of the transferor court must transmit to the Registrar or other proper officer of the other court all documents filed in the transferor court in respect of the proceeding or application, as the case may be; and

                     (b)  the other court must proceed as if:

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

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

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

1337P  Conduct of proceedings

             (1)  Subject to sections 1337S, 1337T and 1337U, if it appears to a court that, in determining a matter for determination in a proceeding, the court will, or will be likely to, be exercising relevant jurisdiction, the rules of evidence and procedure to be applied in dealing with that matter are to be the rules that:

                     (a)  are applied in a superior court in Australia or in an external Territory; and

                     (b)  the court considers appropriate to be applied in the circumstances.

             (2)  If a proceeding is transferred or removed to a court (the transferee court) from another court (the transferor court), the transferee court must deal with the proceeding as if, subject to any order of the transferee court, the steps that had been taken for the purposes of the proceeding in the transferor court (including the making of an order), or similar steps, had been taken in the transferee court.

             (3)  In this section:

relevant jurisdiction means:

                     (a)  jurisdiction conferred on the Federal Court of Australia or the Family Court with respect to civil matters arising under the Corporations Legislation; or

                     (b)  jurisdiction conferred on a court of a State, the Capital Territory or the Northern Territory with respect to matters referred to in subsection 1337B(3).

1337Q  Rights of appearance

             (1)  This section applies if a proceeding (the transferred proceeding) in a court (the transferor court) is transferred to another court (the transferee court) under this Division.

             (2)  A person who is entitled to practise as a barrister or a solicitor, or as both a barrister and a solicitor, in the transferor court has the same entitlements to practise in relation to:

                     (a)  the transferred proceeding; and

                     (b)  any other proceeding out of which the transferred proceeding arises or to which the transferred proceeding is related, being another proceeding that is to be determined together with the transferred proceeding;

in the transferee court that the person would have if the transferee court were a federal court exercising federal jurisdiction.

1337R  Limitation on appeals

                   An appeal does not lie from a decision of a court:

                     (a)  in relation to the transfer of a proceeding under this Division; or

                     (b)  as to which rules of evidence and procedure are to be applied pursuant to subsection 1337P(1).

Subdivision DRules of court

1337S  Rules of the Federal Court

             (1)  The power to make rules of court conferred by section 59 of the Federal Court of Australia Act 1976 extends to making rules of court:

                     (a)  with respect to proceedings, and the practice and procedure, of the Federal Court of Australia under the Corporations legislation; and

                     (b)  with respect to any matter or thing that is:

                              (i)  required or permitted by the Corporations legislation to be prescribed by rules within the meaning of the Corporations legislation; or

                             (ii)  necessary or convenient to be prescribed by such rules for carrying out or giving effect to the Corporations legislation; and

                     (c)  without limitation, with respect to costs, and with respect to rules about meetings ordered by the Federal Court of Australia.

             (2)  In this section:

Corporations legislation does not include rules of court.

1337T  Rules of the Supreme Court

             (1)  The Judges of the Supreme Court of the Capital Territory, or a majority of them, may make rules of court:

                     (a)  with respect to proceedings, and the practice and procedure, of that court under the Corporations legislation; and

                     (b)  with respect to any matter or thing that is:

                              (i)  required or permitted by the Corporations legislation to be prescribed by rules within the meaning of the Corporations legislation; or

                             (ii)  necessary or convenient to be prescribed by such rules for carrying out or giving effect to the Corporations legislation; and

                     (c)  without limitation, with respect to costs, and with respect to rules as to meetings ordered by that Court.

             (2)  When a lower court of the Capital Territory is exercising jurisdiction with respect to matters arising under the Corporations legislation, the court must apply the rules of court made under subsection (1), with such alterations as are necessary.

             (3)  In this section:

Corporations legislation does not include rules of court.

1337U  Rules of the Family Court

             (1)  The power to make rules of court conferred by section 123 of the Family Law Act 1975 extends to making rules of court:

                     (a)  with respect to proceedings, and the practice and procedure, of the Family Court under the Corporations legislation; and

                     (b)  with respect to any matter or thing that is:

                              (i)  required or permitted by the Corporations legislation to be prescribed by rules within the meaning of the Corporations legislation; or

                             (ii)  necessary or convenient to be prescribed by such rules for carrying out or giving effect to the Corporations legislation; and

                     (c)  without limitation, with respect to costs, and with respect to rules about meetings ordered by the Family Court.

             (2)  In this section:

Corporations legislation does not include rules of court.


 

Division 2Criminal jurisdiction

1338A  Operation of Division

             (1)  This Division provides in relation to the jurisdiction of courts in respect of criminal matters arising under the Corporations legislation and so provides to the exclusion of sections 68, 70 and 70A of the Judiciary Act 1903.

             (2)  This Division does not limit the operation of the provisions of the Judiciary Act 1903 other than sections 68, 70 and 70A.

             (3)  Without limiting subsection (2), this Division does not limit the operation of subsection 39(2) of the Judiciary Act 1903 in relation to criminal matters arising under the Corporations legislation.

1338B  Jurisdiction of courts

             (1)  Subject to this section, the several courts of each State, the Capital Territory and the Northern Territory exercising jurisdiction:

                     (a)  with respect to:

                              (i)  the summary conviction; or

                             (ii)  the examination and commitment for trial on indictment; or

                            (iii)  the trial and conviction on indictment;

                            of offenders or persons charged with offences against the laws of the State, the Capital Territory or the Northern Territory, and with respect to:

                            (iv)  their sentencing, punishment and release; or

                             (v)  their liability to make reparation in connection with their offences; or

                            (vi)  the forfeiture of property in connection with their offences; or

                           (vii)  the proceeds of their crimes; and

                     (b)  with respect to the hearing and determination of:

                              (i)  proceedings connected with; or

                             (ii)  appeals arising out of; or

                            (iii)  appeals arising out of proceedings connected with;

                            any such trial or conviction or any matter of a kind referred to in subparagraph (a)(iv), (v), (vi) or (vii);

have the equivalent jurisdiction with respect to offenders or persons charged with offences against the Corporations legislation.

             (2)  The jurisdiction conferred by subsection (1) is not to be exercised with respect to the summary conviction, or examination and commitment for trial, of any person except by a magistrate.

             (3)  The jurisdiction conferred by subsection (1) includes jurisdiction in accordance with provisions of a relevant law of a State, the Capital Territory or the Northern Territory, and:

                     (a)  the reference in paragraph (1)(b) to “any such trial or conviction” includes a reference to any conviction or sentencing in accordance with the provisions of a relevant law; and

                     (b)  unless the contrary intention appears, a reference to jurisdiction conferred by subsection (1) includes a reference to such included jurisdiction.

             (4)  A person may be dealt with in accordance with a relevant law even if, apart from this section, the offence concerned:

                     (a)  would be required to be prosecuted on indictment; or

                     (b)  would be required to be prosecuted either summarily or on indictment.

             (5)  For the purposes of the application of a relevant law as provided by subsection (3):

                     (a)  a reference in that law to an indictable offence is taken to include a reference to an offence that may be prosecuted on indictment; and

                     (b)  in order to determine the sentence that may be imposed on a person by a court pursuant to the relevant law, the person is taken to have been prosecuted and convicted on indictment in that court.

             (6)  Subject to subsection (8), the jurisdiction conferred on a State or Territory court by subsection (1) is conferred despite any limits as to locality of the jurisdiction of that court under the law of that State or Territory.

             (7)  If:

                     (a)  jurisdiction is conferred on a State or Territory court in relation to the summary conviction of persons charged with offences against the Corporations legislation by subsection (1); and

                     (b)  the court is satisfied that it is appropriate to do so, having regard to all the circumstances including the public interest;

the court may decline to exercise that jurisdiction in relation to an offence committed in another State or Territory.

             (8)  The jurisdiction conferred on a court of a State, the Capital Territory or the Northern Territory by subsection (1) in relation to:

                     (a)  the examination and commitment for trial on indictment; and

                     (b)  the trial and conviction on indictment;

of offenders or persons charged with offences against the Corporations legislation is conferred only in relation to:

                     (c)  offences committed outside Australia; and

                     (d)  offences committed, begun or completed in the State or the Territory concerned.

             (9)  In this section:

appeal includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.

Australia does not include the coastal sea.

relevant law means a law providing that where, in proceedings before a court, a person pleads guilty to a charge for which he or she could be prosecuted on indictment, the person may be committed, to a court having jurisdiction to try offences on indictment, to be sentenced or otherwise dealt with without being tried in that last‑mentioned court.

1338C  Laws to be applied

             (1)  Subject to this Division, the laws of a State, the Capital Territory or the Northern Territory respecting:

                     (a)  the arrest and custody in the State or Territory of offenders or persons charged with offences; and

                     (b)  criminal procedure in the State or Territory in relation to such persons; and

                     (c)  the rules of evidence applied in criminal procedure in the State or Territory in relation to such persons;

apply in the State or Territory, so far as they are applicable, to persons who are charged with offences against the Corporations legislation.

             (2)  In this section:

criminal procedure means the procedure for:

                     (a)  the summary conviction; and

                     (b)  the examination and commitment for trial on indictment; and

                     (c)  the trial and conviction on indictment; and

                     (d)  the hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings;

of offenders or persons charged with offences, and includes the procedure for holding accused persons to bail.


 

Part 9.7Unclaimed property

  

1339  ASIC to deal with unclaimed property

             (1)  Unclaimed property held by ASIC is to be dealt with in accordance with this Part.

Note:          Unclaimed property is held by ASIC for and on behalf of the Commonwealth (see subsections 8(3) and (4) of the ASIC Act).

             (2)  If property becomes unclaimed property, ASIC must:

                     (a)  in the case of money—credit the amount of the money to the Companies and Unclaimed Moneys Special Account; or

                     (b)  otherwise—sell or dispose of the property as it thinks fit and credit the amount of the proceeds to the Companies and Unclaimed Moneys Special Account.

1340  No liability to pay calls on shares etc.

                   Where unclaimed property is or includes shares in a body corporate, neither the Commonwealth nor ASIC is subject to any obligation:

                     (a)  to pay any calls; or

                     (b)  to make any contribution to the debts and liabilities of the body corporate; or

                     (c)  to discharge any other liability; or

                     (d)  to do any other act or thing;

in respect of the shares, whether the obligation arises before or after the shares become unclaimed property, but this section does not affect the right of a body corporate to forfeit a share.

1341  Entitlement to unclaimed property

             (1)  If an amount is not debited from the Companies and Unclaimed Moneys Special Account in accordance with this section within 6 years after that amount was originally credited to the Account under subsection 1339(2), that amount must be debited from the Account.

Note:          Despite being debited from the Companies and Unclaimed Moneys Special Account, the amount remains part of the Consolidated Revenue Fund.

             (2)  If:

                     (a)  a person claims to be entitled to an amount credited to the Companies and Unclaimed Moneys Special Account under subsection 1339(2); and

                     (b)  ASIC is satisfied that the person is entitled to that amount;

ASIC must:

                     (c)  unless paragraph (d) applies—pay the amount to the person and debit that amount from the Account; or

                     (d)  if the amount has already been debited from the Account under subsection (1)—pay the amount to the person out of money appropriated by the Parliament for the purpose.

             (3)  A person who is dissatisfied with the decision of ASIC in respect of a claim made by the person in accordance with subsection (2) may appeal to the Court and the Court may confirm, disallow or vary the decision of ASIC.

             (4)  Where a person claims to be entitled to money that has been paid to another person in accordance with this section, neither the Commonwealth nor ASIC is under any liability to that first‑mentioned person in respect of that money, but, if the first‑mentioned person is entitled to that money, that person may recover that money from the other person.

1342  Commonwealth or ASIC not liable for loss or damage

                   Neither the Commonwealth nor ASIC is liable for any loss or damage suffered by a person arising out of the exercise of, or the failure to exercise, any of the powers which are conferred on ASIC under this Part or which ASIC has in relation to unclaimed property.

1343  Disposal of securities if whereabouts of holder unknown

                   Where a person has been shown in an appropriate register of a company as the holder of securities of the company for a period of at least 6 years and the company has, for a period of at least 6 years:

                     (a)  had reasonable grounds for believing that the person was not residing at the address shown in the register as the person’s address; and

                     (b)  on each occasion during that last‑mentioned period when, whether or not in accordance with a provision of this Act, it sought to communicate with the person, being unable after the exercise of reasonable diligence to do so;

the company may, by executing a transfer for and on behalf of the person, transfer to ASIC:

                     (c)  the securities; and

                     (d)  any rights in respect of the securities;

to be dealt with under this Part.

1343A  Disposal of interests in registered scheme if whereabouts of member unknown

                   If, during a period of at least 6 years while a person has been shown in the register of members of a registered scheme as the holder of interests in the scheme:

                     (a)  the responsible entity has had reasonable grounds for believing that the person was not residing at the address shown in the register as their address; and

                     (b)  the responsible entity’s attempts to communicate with the person have been made using reasonable diligence but have all been unsuccessful;

the responsible entity may, by executing a transfer for and on behalf of the person, transfer the interests and any rights in respect of them to ASIC to be dealt with under this Part.


 

Part 9.9Miscellaneous

  

1344  Use of ABN

                   Despite any provision in this Act or any other Act, in any case where:

                     (a)  the ACN of a company; or

                     (b)  the ARBN of a registered body; or

                     (c)  the ARSN of a registered scheme;

is required or permitted to be used under a law of the Commonwealth administered by ASIC, the ABN of the company, body or scheme may be used instead if the last 9 digits of the ABN are the same, and in the same order, as the last 9 digits of the ACN, ARBN or ARSN.

1345A  Minister may delegate prescribed functions and powers under this Act

             (1)  The Minister may, by signed instrument, delegate to an officer of the Department such of the Minister’s functions and powers under this Act as are prescribed.

          (1A)  The Minister may, by signed instrument, delegate the function or power under subsection 147(2) or 601DC(2) to:

                     (a)  a member of ASIC (within the meaning of paragraph (a) of the definition of member in subsection 5(1) of the Australian Securities and Investments Commission Act 2001); or

                     (b)  a staff member of ASIC.

             (2)  A delegate is, in the performance or exercise of a delegated function or power, subject to the Minister’s directions.

1346  Non‑application of rule against perpetuities to certain schemes

             (1)  The rules of law relating to perpetuities do not apply, and are taken never to have applied, to the trusts of any fund or scheme for the benefit of any employee of a corporation, whether the fund or scheme was established before, or is established after, the commencement of this section.

             (2)  In this section:

                     (a)  a reference to a corporation includes a reference to a body corporate or society incorporated or formed, or otherwise duly constituted, whether before, at or after the commencement of this section, by or under:

                              (i)  a law of the Commonwealth, of a State or Territory, of an external Territory or of a country outside Australia and the external Territories; or

                             (ii)  letters patent or a royal charter; and

                     (b)  a reference to a fund or scheme includes a reference to a provident, superannuation, sick, accident, assurance, unemployment, pension or co‑operative benefit fund, scheme, arrangement or provision or other like fund, scheme, arrangement or provision; and

                     (c)  a reference to an employee of a corporation includes a reference to:

                              (i)  a director of the corporation; and

                             (ii)  a spouse, child, grandchild, parent or any dependant of an employee or of a director of the corporation.

1348  Operation of Life Insurance Act

                   Nothing in this Act is taken to affect any of the provisions of the Life Insurance Act 1995.

1349  Privilege against exposure to penalty—disqualification etc.

Court or Tribunal proceeding

             (1)  In the case of:

                     (a)  a civil or criminal proceeding under, or arising out of, this Act or the ASIC Act; or

                     (b)  a proceeding before the Tribunal arising out of this Act or the ASIC Act;

a person is not entitled to refuse or fail to comply with a requirement:

                     (c)  to answer a question or give information; or

                     (d)  to produce a book or any other thing; or

                     (e)  to do any other act whatever;

on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of:

                      (f)  a disqualification under Part 2D.6 of this Act; or

                     (g)  a declaration under section 853C of this Act; or

                     (h)  a suspension or cancellation under section 915B of this Act; or

                      (i)  a suspension or cancellation under section 915C of this Act; or

                      (j)  a banning order under section 920A of this Act; or

                     (k)  an order under section 921A of this Act; or

                      (l)  a cancellation or suspension under Division 3 of Part 9.2 of this Act; or

                    (m)  a requirement to give an undertaking under paragraph 1292(9)(b) or (c) of this Act; or

                     (n)  a cancellation or suspension under Division 2 of Part 9.2A of this Act; or

                     (o)  an order under section 12GLD of the ASIC Act.

             (2)  Subsection (1) applies whether or not the person is a defendant in, or a party to, the proceeding or any other proceeding.

Statutory requirement

             (3)  A person is not entitled to refuse or fail to comply with a requirement under this Act or the ASIC Act:

                     (a)  to answer a question or give information; or

                     (b)  to produce a book or any other thing; or

                     (c)  to do any other act whatever;

on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of:

         (d)  a disqualification under Part 2D.6 of this Act; or

                     (e)  a declaration under section 853C of this Act; or

                      (f)  a suspension or cancellation under section 915B of this Act; or

                     (g)  a suspension or cancellation under section 915C of this Act; or

                     (h)  a banning order under section 920A of this Act; or

                      (i)  an order under section 921A of this Act; or

                      (j)  a cancellation or suspension under Division 3 of Part 9.2 of this Act; or

                     (k)  a requirement to give an undertaking under paragraph 1292(9)(b) or (c) of this Act; or

                      (l)  a cancellation or suspension under Division 2 of Part 9.2A of this Act; or

                    (m)  an order under section 12GLD of the ASIC Act.

Admissibility

             (4)  Paragraph 597(12A)(d) of this Act, and paragraph 68(3)(b) of the ASIC Act, do not apply to a proceeding for the imposition of a penalty by way of:

         (a)  a disqualification under Part 2D.6 of this Act; or

                     (b)  a declaration under section 853C of this Act; or

                     (c)  a suspension or cancellation under section 915B of this Act; or

                     (d)  a suspension or cancellation under section 915C of this Act; or

                     (e)  a banning order under section 920A of this Act; or

                      (f)  an order under section 921A of this Act; or

                     (g)  a cancellation or suspension under Division 3 of Part 9.2 of this Act; or

                     (h)  a requirement to give an undertaking under paragraph 1292(9)(b) or (c) of this Act; or

                      (i)  a cancellation or suspension under Division 2 of Part 9.2A of this Act; or

                      (j)  an order under section 12GLD of the ASIC Act.

Other provisions

             (5)  Subsections (1) and (3) have effect despite anything in:

                     (a)  section 1317L; or

                     (b)  any other provision of this Act; or

                     (c)  the ASIC Act; or

                     (d)  the Administrative Appeals Tribunal Act 1975.

Definition

             (6)  In this section:

penalty includes forfeiture.

1350  Compensation for compulsory acquisition

             (1)  If:

                     (a)  apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms; and

                     (b)  the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the person who acquires the property is liable to pay compensation of a reasonable amount to the person from whom the property is acquired in respect of the acquisition.

             (2)  If the 2 people do not agree on the amount of the compensation, the person to whom compensation is payable may institute proceedings in the Court for the recovery of such reasonable amount as the court determines from the other person.

             (3)  Any damages or compensation recovered or other remedy given in a proceeding that is commenced otherwise than under this section is to be taken into account in assessing compensation payable in a proceeding that is commenced under this section and that arises out of the same event or transaction.

             (4)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.


 

Part 9.10Fees imposed by the Corporations (Fees) Act 2001 and the Corporations (Review Fees) Act 2003

  

1351  Fees are payable to the Commonwealth

             (1)  The fees imposed under the Corporations (Fees) Act 2001 are payable to the Commonwealth.

             (2)  The fees imposed under the Corporations (Review Fees) Act 2003 are payable to the Commonwealth.

             (3)  The date on which a fee imposed under the Corporations (Review Fees) Act 2003 becomes due and payable is worked out under this table.

 

Due date for review fees

Item

For a review fee imposed on...

The due date is...

1

a company

2 months after the review date to which the fee relates

2

a registered scheme

2 months after the review date to which the fee relates

3

a registered Australian body

the date prescribed by the regulations

4

a natural person registered as an auditor under Part 9.2

the date prescribed by the regulations

5

a natural person registered as a liquidator under Part 9.2

the date prescribed by the regulations

6

a person holding an Australian financial services licence under Part 7.6

the date prescribed by the regulations

             (4)  However, a fee imposed under the Corporations (Review Fees) Act 2003 is not payable to the Commonwealth by a company in relation to a review date in a year if:

                     (a)  both of the following apply:

                              (i)  ASIC has given notice of the proposed deregistration of the company in accordance with paragraph 601AA(4)(c), and published notice of the proposed deregistration of the company in accordance with paragraph 601AA(4)(d);

                             (ii)  the review date for that year falls in the 2 month period before or after the publication of the notice published in accordance with paragraph 601AA(4)(d); or

                     (b)  in the case of a company, a registered scheme or a registered Australian body—the company, scheme or body has, in a previous year, paid the fee in respect of the review date for that year in accordance with regulations made under the Corporations (Review Fees) Act 2003 for the purposes of this section.

1354  Lodgment of document without payment of fee

             (1)  This section applies where:

                     (a)  a fee is payable under section 1351 for the lodgment of a document; and

                     (b)  the document was submitted for lodgment without payment of the fee.

             (2)  The document is not taken not to have been lodged merely because of non‑payment of the fee.

1355  Doing act without payment of fee

                   If a fee is payable under section 1351 for a matter involving the doing of an act by the Minister or ASIC, the Minister or ASIC may refuse to do that act until the fee is paid.

1356  Effect of sections 1354 and 1355

                   Sections 1354 and 1355 have effect despite anything in another Part of this Act.

1359  Waiver and refund of fees

                   Nothing in this Part, the Corporations (Fees) Act 2001 or the Corporations (Review Fees) Act 2003 prevents the Commonwealth from:

                     (a)  waiving or reducing, in a particular case or in particular classes of cases, fees that would otherwise be payable under this Act; or

                     (b)  refunding, in whole or in part, in a particular case or in particular classes of cases, fees paid under this Act.

1360  Debts due to the Commonwealth

                   ASIC may, on behalf of the Commonwealth, recover a debt due under this Part.

1362  Payment of fee does not give right to inspect or search

                   To avoid doubt, nothing in this Part, and nothing done under this Part:

                     (a)  imposes on ASIC a duty to allow the inspection or search of a register or document, or to make available information; or

                     (b)  confers a right to inspect or search a register or document or to have information made available;

except so far as such a duty or right would, but for the effect of section 1355, exist under a provision of another Part of this Act or under some other law.


 

Part 9.12Regulations

  

1363  Definitions

                   In this Part, unless the contrary intention appears:

prescribed means prescribed by the regulations.

the regulations means the regulations made under section 1364.

1364  Power to make regulations

             (1)  The Governor‑General may make regulations prescribing matters:

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

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

             (2)  Without limiting subsection (1), the regulations may make provision:

                     (c)  for or in relation to the keeping of registers by ASIC, the lodging of documents with ASIC, the registration of documents by ASIC, the time and manner of lodging or registration, and the requirements with which documents lodged or to be lodged are to comply; and

                     (d)  prescribing forms for the purposes of this Act and the method of verifying any information required by or in those forms; and

                     (e)  prescribing the manner in which, the persons by whom, and the directions or requirements in accordance with which, the forms prescribed for the purposes of this Act, or any of them, are required or permitted to be signed, prepared, or completed, and generally regulating the signing, preparation and completion of those forms, or any of them; and

                      (f)  for or in relation to the convening of, conduct of, and procedure and voting at, meetings of creditors, meetings of eligible employee creditors, meetings of contributories and meetings of holders of debentures, and joint meetings of creditors and members of companies, the number of persons required to constitute a quorum at any such meeting, the sending of notices of meetings to persons entitled to attend at meetings, the lodging of copies of notices of, and of resolutions passed at, meetings, and generally regulating the conduct of, and procedure at, any such meeting; and

                     (g)  prescribing the persons by whom, and the circumstances and manner in which, proxies may be appointed and generally regulating the appointment and powers of proxies; and

                     (h)  for or in relation to the proving of debts in the winding up of a company, the manner of proving debts and the time within which debts are required or permitted to be proved and generally regulating the proving of debts; and

                      (j)  prescribing the manner in which a liquidator appointed by the Court may:

                              (i)  exercise powers and perform functions under subsection 478(1); and

                             (ii)  exercise any powers conferred, and perform any duties imposed, on the liquidator by regulations made for the purposes of subsection 488(1); and

                     (k)  prescribing the manner in which a liquidator in a voluntary winding up may exercise powers and perform functions under section 506; and

                    (m)  prescribing times for the lodging of any documents; and

                     (n)  prescribing penalties for late payment of a review fee imposed by the Corporations (Review Fees) Act 2003; and

                     (o)  prescribing that, in relation to the payment of a fee imposed by the Corporations (Fees) Act 2001 or the Corporations (Review Fees) Act 2003, in the event that the fee is paid by electronic means, a refund of an amount or proportion of the fee is payable; and

                      (s)  for or in relation to the giving to ASIC of information in addition to, or in variation of, the information contained in a prescribed form lodged with it; and

                      (t)  for or in relation to the times within which information required to be given to ASIC under this Act must be so given; and

                     (u)  for or in relation to the manner in which:

                              (i)  orders made under this Act may be served on persons affected by the orders; and

                             (ii)  documents that are required or permitted by this Act to be served on a person may be so served; and

                    (w)  prescribing penalties not exceeding 50 penalty units for contraventions of the regulations.

Note:          Because of section 1312, if a body corporate is convicted of an offence against the regulations a court may impose a penalty of up to 5 times the penalty specified for the offence.

1365  Scope of particular regulations

                   Except as otherwise expressly provided in this Act, the regulations may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.

1366  Verifying or certifying documents

                   The regulations may:

                     (a)  where documents required by or under this Act to be lodged in accordance with this Act are required to be verified or certified and no manner of verification or certification is prescribed by or under this Act—require that the documents or any of them be verified or certified by statement in writing made by such persons as are prescribed by the regulations; and

                     (b)  where no express provision is made in this Act for verification or certification of documents—require that the documents be verified or certified by statement in writing by such persons as are prescribed.

1367  Documents lodged by an agent

                   The regulations may provide, in such cases as are prescribed, that, if a document that is required by or under this Act to be lodged is signed or lodged on behalf of a person by an agent duly authorised by writing, there must be:

                     (a)  lodged with; or

                     (b)  endorsed on; or

                     (c)  annexed to;

that document, the original, or a verified copy, of the authority.

1367A  Publication in the prescribed manner

             (1)  If a particular provision of this Act requires a person (other than ASIC) to:

                     (a)  publish a notice, or a copy of a notice, in the prescribed manner; or

                     (b)  cause a notice, or a copy of a notice, to be published in the prescribed manner;

the regulations may provide that:

                     (c)  the person is taken to have complied with that requirement if, and only if, the person lodges the notice or copy under subsection (2); and

                     (d)  if the person lodges the notice or copy under subsection (2), ASIC must publish the notice or copy in the manner specified in the regulations.

             (2)  A person may lodge a notice, or a copy of a notice, under this subsection if the notice or copy is covered by regulations made for the purposes of subsection (1).

1368  Exemptions from Chapter 6D or 7

                   The regulations may provide that, subject to any prescribed terms and conditions, Chapter 6D or 7, or specified provisions of Chapter 6D or 7:

                     (a)  do not have effect in relation to a specified person or class of persons; or

                     (b)  have effect in relation to a specified person or class of persons to such extent only as is prescribed; or

                     (c)  do not have effect in relation to a specified transaction or class of transactions; or

                     (d)  do not have effect in relation to a specified transaction or class of transactions entered into by a specified person or class of persons;

and may provide that a contravention of a prescribed term or condition is an offence against the regulations.

1369  Penalty notices

             (1)  The regulations:

                     (a)  may prescribe offences against this Act (not being offences the penalties applicable to which include a term of imprisonment or a pecuniary penalty that exceeds $1,000), or offences against the regulations, for the purposes of section 1313; and

                     (b)  must, in relation to each offence that is prescribed under this subsection:

                              (i)  prescribe the particulars of that offence that are to be given in a notice served on a person under that section in relation to the offence; and

                             (ii)  prescribe the amount of the penalty (being not more than half the amount of the penalty applicable to the offence) that is payable in respect of the offence under a notice served on a person under that section in relation to the offence.

             (2)  In subsection (1), a reference to a penalty applicable to an offence is a reference to the penalty that is applicable to that offence because of any of the provisions of section 1311.

             (3)  The particulars of an offence required to be prescribed by subparagraph (1)(b)(i) may be prescribed by being set out in the form prescribed for the purposes of section 1313 in relation to the offence.

1369A  State termination of reference

             (1)  The regulations may make provision in relation to circumstances that arise because a State ceases to be a referring State.

Note:          For example, the regulations may prevent companies that have their registered office or financial records in the State from committing offences and give them time to relocate their office or records.

             (2)  Without limiting subsection (1), regulations made under that subsection may modify the operation of this Act in relation to the circumstances dealt with in the regulations.


 

Chapter 10Transitional provisions

Part 10.1Transition from the old corporations legislation

Division 1Preliminary

1370  Object of Part

             (1)  Subject to subsection (3), the object of this Part is to provide for a smooth transition from the regime provided for in the old corporations legislation of the States and Territories in this jurisdiction to the regime provided for in the new corporations legislation, so that individuals, bodies corporate and other bodies are, to the greatest extent possible, put in the same position immediately after the commencement as they would have been if:

                     (a)  that old corporations legislation had, from time to time when it was in force, been valid Commonwealth legislation applying throughout those States and Territories; and

                     (b)  the new corporations legislation (to the extent it contains provisions that correspond to provisions of the old corporations legislation as in force immediately before the commencement) were a continuation of that old corporations legislation as so applying.

Note:          The new corporations legislation contains provisions that correspond to most of the provisions of the old corporations legislation. Generally, the only exceptions to this are provisions of the old corporations legislation that related to the fact that the Corporations Law operated separately in each of the States and Territories (rather than as a single national law).

             (2)  In resolving any ambiguity as to the meaning of any of the other provisions of this Part, an interpretation that is consistent with the object of this Part is to be preferred to an interpretation that is not consistent with that object.

             (3)  This Part does contain some provisions (for example, subsection 1400(4)) which apply or extend to matters under the old corporations legislation of any non‑referring State.

1371  Definitions

             (1)  In this Part:

carried over provision of the old corporations legislation of a State or Territory in this jurisdiction means a provision of the old corporations legislation of that State or Territory that:

                     (a)  was in force immediately before the commencement; and

                     (b)  corresponds to a provision of the new corporations legislation.

commencement means the commencement of this Act.

corresponds has a meaning affected by subsections (2), (3) and (4).

instrument means:

                     (a)  any instrument of a legislative character (including an Act or regulations) or of an administrative character; or

                     (b)  any other document.

liability includes a duty or obligation.

made includes issued, given or published.

new corporations legislation means:

                     (a)  this Act; and

                     (b)  the new Corporations Regulations (as amended and in force from time to time) and any other regulations made under this Act; and

                     (c)  the laws of the Commonwealth referred to in paragraph (c) of the definition of old corporations legislation, being those laws as they apply after the commencement; and

                     (d)  the preserved instruments.

new Corporations Regulations means the regulations that, because of section 1380, have effect as if they were made under section 1364.

old application Act for a State or Territory means:

                     (a)  in the case of New South Wales—the Corporations (New South Wales) Act 1990 of New South Wales as in force from time to time before the commencement; or

                     (b)  in the case of Victoria—the Corporations (Victoria) Act 1990 of Victoria as in force from time to time before the commencement; or

                     (c)  in the case of Queensland—the Corporations (Queensland) Act 1990 of Queensland as in force from time to time before the commencement; or

                     (d)  in the case of Western Australia—the Corporations (Western Australia) Act 1990 of Western Australia as in force from time to time before the commencement; or

                     (e)  in the case of South Australia—the Corporations (South Australia) Act 1990 of South Australia as in force from time to time before the commencement; or

                      (f)  in the case of Tasmania—the Corporations (Tasmania) Act 1990 of Tasmania as in force from time to time before the commencement; or

                     (g)  in the case of the Australian Capital Territory—the old Corporations Act; or

                     (h)  in the case of the Northern Territory—the Corporations (Northern Territory) Act 1990 of the Northern Territory as in force from time to time before the commencement.

old Corporations Act means the Corporations Act 1989 as in force from time to time before the commencement.

old Corporations Law means:

                     (a)  when used in relation to a particular State or Territory—the Corporations Law of that State or Territory, within the meaning of the old application Act for that State or Territory, as in force from time to time before the commencement; or

                     (b)  when used in general terms—the Corporations Law set out in section 82 of the old Corporations Act as in force from time to time before the commencement.

old corporations legislation of a particular State or Territory means:

                     (a)  the old Corporations Law and old Corporations Regulations of that State or Territory, and any instruments made under that Law or those Regulations; and

                     (b)  the old application Act for that State or Territory, and any instruments made under that Act; and

                     (c)  either:

                              (i)  when used in relation to a State or the Northern Territory—the laws of the Commonwealth as applying in relation to the old Corporations Law and the old Corporations Regulations of the State or Territory from time to time before the commencement as laws of, or for the government of, that State or Territory because of Part 8 of the old Application Act for that State or Territory, and any instruments made under those laws as so applying; or

                             (ii)  when used in relation to the Australian Capital Territory—the laws of the Commonwealth referred to in subparagraph (i), but as applying of their own force in relation to the old Corporations Law and old Corporations Regulations of the Territory, and any instruments made under those laws as so applying.

old Corporations Regulations means:

                     (a)  when used in relation to a particular State or Territory—the Corporations Regulations of that State or Territory, within the meaning of the old application Act for that State or Territory, as in force from time to time before the commencement; or

                     (b)  when used in general terms—the regulations made under section 22 of the old Corporations Act as in force from time to time before the commencement.

order, in relation to a court, includes any judgment, conviction or sentence of the court.

pre‑commencement right or liability has the meaning given by subsection 1400(1) or 1401(1).

preserved instrument means an instrument that, because of section 1399, has effect after the commencement as if it were made under a provision of the new corporations legislation.

right includes an interest or status.

substituted right or liability has the meaning given by subsection 1400(2) or 1401(3).

this Part includes regulations made for the purposes of any of the provisions of this Part.

             (2)  Subject to subsection (4), for the purposes of this Part, a provision or part (the old provision or part) of the old corporations legislation of a State or Territory corresponds to a provision or part (the new provision or part) of the new corporations legislation (and vice versa) if:

                     (a)  the old provision or part and the new provision or part are substantially the same, unless the regulations specify that the 2 provisions or parts do not correspond; or

                     (b)  the regulations specify that the 2 provisions or parts correspond.

Note:          The range of provisions of the new corporations legislation that may be corresponding provisions for the purposes of this Part is affected by sections 1401 and 1408, which take certain provisions of the old corporations legislation to be included in the new corporations legislation.

             (3)  For the purposes of paragraph (2)(a), differences of all or any of the following kinds are not sufficient to mean that 2 provisions or parts are not substantially the same:

                     (a)  differences in the numbering of the provisions or parts;

                     (b)  differences of a minor technical nature (for example, differences in punctuation, or differences that are attributable to the correction of incorrect cross references);

                     (c)  the fact that one of the provisions refers to a corresponding previous law and the other does not;

                     (d)  that fact that:

                              (i)  the old provision or part allowed a court to exercise powers on its own motion but the new provision or part does not; or

                             (ii)  the old provision or part required a court to apply a criterion of public interest but the new provision or part requires a court to apply a criterion of justice and equity; or

                            (iii)  the new provision or part requires ASIC to take account of public interest but the old provision or part did not;

                     (e)  other differences that are attributable to the fact that the new corporations legislation applies as a Commonwealth law throughout this jurisdiction;

                      (f)  other differences of a kind prescribed by the regulations for the purposes of this paragraph.

This subsection is not intended to otherwise limit the circumstances in which 2 provisions or parts are, for the purposes of paragraph (2)(a), substantially the same.

             (4)  The regulations may provide that a specified provision of the old corporations legislation of a State or Territory does, or does not, correspond to a specified provision of the new corporations legislation.

1372  Relationship of Part with State validation Acts

             (1)  This Part applies to an invalid administrative action of a Commonwealth authority or an officer of the Commonwealth (within the meaning of a State validation Act) as if the circumstances that made the authority’s or officer’s action an invalid administrative action had not made the action invalid.

Note 1:       So, for example, in determining whether the purported registration of a company is an action to which this Part (in particular Division 2) applies, the circumstances that made the action an invalid administrative action for the purposes of a State validation Act are to be disregarded.

Note 2:       For the status and effect of invalid administrative actions in relation to times before the commencement, see the State validation Acts.

             (2)  However, if there are other circumstances that affect or may affect the validity of the action, neither this section, nor anything else in this Part, is taken to negate the effect of those other circumstances.

             (3)  If:

                     (a)  a person would have had a right or liability under a provision (the old provision) of the old corporations legislation of a State if the circumstances that made the authority’s or officer’s action an invalid administrative action (within the meaning of the State validation Act of that State) had not made the action invalid; and

                     (b)  the effect of that State validation Act in relation to that action is to declare that the person has, and is taken always to have had, the same rights and liabilities as they would have had under the old provision if the invalid administrative action had been taken, or purportedly taken, at the relevant time by a duly authorised State authority or officer of the State (within the meaning of that Act);

this Part applies as if:

                     (c)  a reference to a right or liability arising under the old corporations legislation included a reference to the right or liability that the person is declared to have by the State validation Act; and

                     (d)  that right or liability arose under the old provision.

             (4)  In this section:

State validation Act means an Act of a State in this jurisdiction under which certain administrative actions (within the meaning of that Act) taken, or purportedly taken, at or before the commencement by Commonwealth authorities or officers of the Commonwealth (within the meaning of that Act) pursuant to functions or powers (the relevant functions or powers) conferred, or purportedly conferred, by or under laws that include the old application Act for that State have, and are deemed always to have had, the same force and effect for all purposes as they would have had if:

                     (a)  they had been taken, or purportedly taken by a State authority or officer of the State (within the meaning of that Act); and

                     (b)  the relevant functions or powers had been duly conferred on those authorities or officers.

1373  References to things taken or deemed to be the case etc.

                   If:

                     (a)  a law of a State or Territory in this jurisdiction had effect before the commencement:

                              (i)  to take or deem something to have happened or to be the case, or to have a particular effect, under or for the purposes of the old corporations legislation of that State or Territory (or a provision of that legislation); or

                             (ii)  to give something an effect for the purposes of the old corporations legislation of that State or Territory (or a provision of that legislation) that it would not otherwise have had; and

                     (b)  that effect was continuing immediately before the commencement;

this Part applies as if that thing had actually happened or were actually the case, or as if that thing actually had that other effect.

Note:          So, for example, if a provision of the old corporations legislation, or another law, of a State or Territory in this jurisdiction took a company to be registered under Part 2A.2 of the old Corporations Law of the State or Territory, this Part applies as if the company were actually registered under that Part.

1374  Existence of several versions of old corporations legislation does not result in this Part operating to take same thing to be done several times under new corporations legislation etc.

                   If, apart from this section, a provision of this Part (the transitional provision) would, because each State or Territory in this jurisdiction had its own old corporations legislation (containing parallel provisions) before the commencement, operate so that:

                     (a)  a particular thing done before the commencement would be taken to be done, or have effect, 2 or more times by, under or for the purposes of, a provision of this Act; or

                     (b)  a right or liability would be created 2 or more times in respect of a particular event, circumstance or thing that happened before the commencement; or

                     (c)  a particular result or effect would be produced 2 or more times for the purposes of the new corporations legislation in relation to the same matter;

the transitional provision is taken to operate so that:

                     (d)  if paragraph (a) applies—the thing is taken to be done or have effect only once by, under, or for the purposes of, the provision of the new corporations legislation; or

                     (e)  if paragraph (b) applies—the right or liability is created only once in respect of the event, circumstance or thing; or

                      (f)  if paragraph (c) applies—the result or effect is produced only once in relation to the matter.

Note:          So, for example, if a body (because of the operation of section 102A of the old Corporations Law) was registered under section 601CB of the old Corporations Law of several States and Territories and those registrations were still in force immediately before the commencement, section 1399 does not apply separately to each of those registrations.

1375  Penalty units in respect of pre‑commencement conduct remain at $100

             (1)  If, because of this Part, an offence can be prosecuted after the commencement in respect of conduct that occurred solely before the commencement, the amount of a penalty unit in respect of that offence is $100.

             (2)  If, because of this Part, section 1314 of this Act applies to conduct that started before the commencement and that continued after the commencement, then, for the purposes of the application of that section to that conduct (including the post‑commencement conduct), the amount of a penalty unit is $100.

             (3)  This section has effect despite section 4AA of the Crimes Act 1914.

1376  Ceasing to be a referring State does not affect previous operation of this Part

                   If, after the commencement, a State ceases to be a referring State, that does not undo or affect:

                     (a)  the effects that this Part has already had in relation to matters connected with that State; or

                     (b)  the ongoing effect of this Act as it operates because of the effects referred to in paragraph (a).


 

Division 2Carrying over registration of companies

1377  Division has effect subject to Division 7 regulations

                   This Division has effect subject to regulations made for the purposes of Division 7.

1378  Existing registered companies continue to be registered

             (1)  If:

                     (a)  before the commencement, a company was registered under Part 2A.2 of the old Corporations Law of a State or Territory in this jurisdiction; and

                     (b)  that registration was still in force immediately before the commencement;

the registration of the company has effect (and may be dealt with) after the commencement as if it were a registration of the company under Part 2A.2 of this Act as a company of whichever of the company types listed in subsection (2) corresponds to its previous class and type.

Note:          The carrying over of other matters (for example, the registration of registered managed investment schemes and of registered bodies) is covered by the more general transitional provisions in Division 6.

             (2)  The company types are as follows:

                     (a)  a proprietary company limited by shares;

                     (b)  an unlimited proprietary company;

                     (c)  a proprietary company limited both by shares and by guarantee;

                     (d)  a public company limited by shares;

                     (e)  an unlimited public company;

                      (f)  a company limited by guarantee;

                     (g)  a public company limited both by shares and by guarantee;

                     (h)  a no liability company.

             (3)  The application of subsection (1) in relation to the registration of a company does not have the effect of creating that company as a new legal entity. Rather, it has the effect of continuing the existence of the legal entity that is that company with the same characteristics and attributes as it had immediately before the commencement. The date of the company’s first registration remains the same (see subsection 1402(2)), and a new certificate of registration does not need to be issued.

Note:          The company will, for example, retain the same name, ACN, constitution and registered office as it had immediately before the commencement. Its certificate of registration will (because of section 1399) have effect as if it were issued under section 118 of this Act.

             (4)  The State or Territory in which the company is taken to be registered is the State or Territory under whose old Corporations Law the company was registered immediately before commencement. This subsection has effect subject to subsection 119A(3).

Note:          For the general provisions about jurisdiction of incorporation and jurisdiction of registration, see section 119A.


 

Division 3Carrying over the old Corporations Regulations

1379  Division has effect subject to Division 7 regulations

                   This Division has effect subject to regulations made for the purposes of Division 7.

1380  Old Corporations Regulations continue to have effect

                   The old Corporations Regulations that were made for the purposes of provisions of the old Corporations Law that correspond to provisions of this Act and that were in force immediately before the commencement continue to have effect (and may be dealt with) after the commencement as if:

                     (a)  they were regulations in force under section 1364 of this Act; and

                     (b)  they were made for the purposes of the corresponding provisions of this Act.


 

Division 4Court proceedings and orders

1381  Division has effect subject to Division 7 regulations

                   This Division has effect subject to regulations made for the purposes of Division 7.

1382  Definitions

             (1)  In this Division:

appeal or review proceeding, in relation to an order of a court, means a proceeding by way of appeal, or otherwise seeking review, of the order.

enforcement proceeding, in relation to an order made by a court, means:

                     (a)  a proceeding to enforce the order; or

                     (b)  any other proceeding in respect of a breach of the order.

federal corporations proceeding means a proceeding of any of the following kinds that, immediately before the commencement, was before a court:

                     (a)  a proceeding in respect of a matter arising under the Administrative Decisions (Judicial Review) Act 1977 involving or related to a decision made under a provision of the old corporations legislation of a State or Territory in this jurisdiction;

                     (b)  a proceeding for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth (within the meaning of section 75 of the Constitution) in relation to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied;

                   (ba)  a proceeding that relates to a matter to which a provision of the Corporations Act 1989 applied (other than a proceeding that relates to a matter to which a provision of the Corporations Law of the Australian Capital Territory applied);

                   (bb)  a proceeding in relation to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied:

                              (i)  in which the Commonwealth was seeking an injunction or a declaration; or

                             (ii)  to which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, was a party;

                   (bc)  any other proceeding in relation to a matter to which a provision of the old corporations legislation of a State in this jurisdiction applied that was in the exercise of federal jurisdiction;

                   (bd)  any other proceeding in relation to a matter to which a provision of the old corporations legislation of a Territory in this jurisdiction applied that would be covered by paragraph (bc) if the Territory had been a State;

                     (c)  a proceeding in the court’s accrued federal jurisdiction in relation to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied.

interlocutory application means an application that:

                     (a)  is made during the course of a proceeding; and

                     (b)  is for an order that is incidental to the principal object of that proceeding, including, for example:

                              (i)  an order about the conduct of that proceeding; or

                             (ii)  an order assisting a party to that proceeding to present their case in that proceeding; or

                            (iii)  an order protecting or otherwise dealing with property that is the subject matter of that proceeding;

                            but not including an order making a final determination of existing rights or liabilities.

interlocutory order means:

                     (a)  an order made in relation to an interlocutory application; or

                     (b)  an order or direction about the conduct of a proceeding.

interlocutory proceeding means a proceeding:

                     (a)  dealing only with; or

                     (b)  to the extent it deals with;

an interlocutory application.

primary proceeding means a proceeding other than an interlocutory proceeding.

proceeding means a proceeding, whether criminal or civil, before a court.

             (2)  For the purposes of this Part, if an interlocutory proceeding relates to a proceeding that is itself an interlocutory proceeding, the first‑mentioned proceeding is taken to relate also to the primary proceeding to which the second‑mentioned proceeding relates.

1383  Treatment of court proceedings under or related to the old corporations legislation—proceedings other than federal corporations proceedings

             (1)  This section applies to a proceeding, other than a federal corporations proceeding, in relation to which the following paragraphs are satisfied:

                     (a)  the proceeding was started in a court before the commencement; and

                     (b)  the proceeding was:

                              (i)  under a provision of the old corporations legislation of a State or Territory in this jurisdiction; or

                             (ii)  brought as, or connected with, a prosecution for an offence against a provision of the old corporations legislation of a State or Territory in this jurisdiction; and

                     (c)  the proceeding was not an enforcement proceeding, or an appeal or review proceeding, in relation to an order of a court; and

                     (d)  the proceeding had not been concluded or terminated before the commencement; and

                     (e)  either:

                              (i)  if the proceeding is a primary proceeding—no final determination of any of the existing rights or liabilities at issue in the proceeding had been made before the commencement; or

                             (ii)  if the proceeding is an interlocutory proceeding—this section applies to the primary proceeding to which the interlocutory proceeding relates.

             (2)  In this section:

                     (a)  the proceeding to which this section applies is called the old proceeding; and

                     (b)  the provision of the old corporations legislation referred to in whichever of subparagraphs (1)(b)(i) and (ii) applies is called the relevant old provision.

             (3)  A proceeding (the new proceeding) equivalent to the old proceeding is, on the commencement, taken to have been brought in the same court, exercising federal jurisdiction:

                     (a)  if subparagraph (1)(b)(i) applies—under the provision of the new corporations legislation that corresponds to the relevant old provision; or

                     (b)  if subparagraph (1)(b)(ii) applies—as, or connected with, a prosecution for an offence against the provision of the new corporations legislation that corresponds to the relevant old provision.

To the extent that the old proceeding, before the commencement, related to pre‑commencement rights or liabilities, the new proceeding relates to the substituted rights and liabilities in relation to those pre‑commencement rights or liabilities

Note 1:       See sections 1400 and 1401 for the creation of substituted rights and liabilities.

Note 2:       In all cases, there will be a provision of the new corporations legislation that corresponds to the relevant old provision, either because:

(a)    the new corporations legislation actually contains a provision that corresponds to the relevant old provision; or

(b)    the new corporations legislation, because of section 1401 or 1408, is taken to include the relevant old provision (whether with or without modifications), in which case the provision so taken to be included will be the corresponding provision.

             (4)  The following provisions apply in relation to the new proceeding:

                     (a)  the parties to the new proceeding are the same as the parties to the old proceeding;

                     (b)  subject to subsections (5) and (6), and to any order to the contrary made by the court, the court must deal with the new proceeding as if the steps that had been taken for the purposes of the old proceeding before the commencement had been taken for the purposes of the new proceeding.

             (5)  If:

                     (a)  an interlocutory order was made before the commencement for the purpose of, or in relation to, the old proceeding; and

                     (b)  that interlocutory order was in force immediately before the commencement;

the rights and liabilities of all persons (including rights and liabilities arising wholly or partly because of conduct occurring before the commencement) are declared to be, for all purposes, the same as if the interlocutory order had instead been made by the same court, in the exercise of federal jurisdiction, for the purpose of, or in relation to, the new proceeding.

             (6)  The court may make orders doing all or any of the following:

                     (a)  cancelling or varying rights or liabilities that a person has because of subsection (5);

                     (b)  substituting other rights or liabilities for rights or liabilities a person has because of subsection (5);

                     (c)  adding rights or liabilities to the rights or liabilities a person has because of subsection (5);

                     (d)  enforcing, or otherwise dealing with conduct contrary to, a right or liability a person has because of subsection (5) in the same way as it could enforce, or deal with, the right, liability or conduct if the right or liability had arisen under or because of an order made by the court in the exercise of federal jurisdiction under the new corporations legislation.

1384  Treatment of court proceedings under or related to the old corporations legislation—federal corporations proceedings

             (1)  This section applies to a proceeding in relation to which the following paragraphs are satisfied:

                     (a)  the proceeding was started in a court before the commencement; and

                     (b)  the proceeding was a federal corporations proceeding that related to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied; and

                     (c)  the proceeding had not been concluded or terminated before the commencement.

             (2)  In this section:

                     (a)  the proceeding to which this section applies is called the continued proceeding; and

                     (b)  the provision of the old corporations legislation referred to in paragraph (1)(b) is called the relevant old provision.

             (3)  Subject to subsection (4):

                     (a)  the continued proceeding continues after the commencement in the same court as if it were, and always had been, a proceeding in relation to a matter to which the provision of the new corporations legislation that corresponds to the relevant old provision applies; and

                     (b)  to the extent that the proceeding, before the commencement, related to pre‑commencement rights or liabilities, the proceeding, as continued, relates, and as so continuing is taken always to have related, to the substituted rights and liabilities in relation to those pre‑commencement rights or liabilities

Note 1:       See sections 1400 and 1401 for the creation of substituted rights and liabilities.

Note 2:       In all cases, there will be a provision of the new corporations legislation that corresponds to the relevant old provision, either because:

(a)    the new corporations legislation actually contains a provision that corresponds to the relevant old provision; or

(b)    the new corporations legislation, because of section 1401 or 1408, is taken to include the relevant old provision (whether with or without modifications), in which case the provision so taken to be included will be the corresponding provision.

             (4)  Subject to any order to the contrary made by the court, the court must deal with the continued proceeding as if:

                     (a)  the steps that had been taken for the purposes of the proceeding before the commencement had been taken for the purpose of the proceeding as continued by this section; and

                     (b)  any orders made in relation to the proceeding before the commencement had been made in relation to the proceeding as continued by this section.

1384A  Appeals etc. in relation to some former federal corporations proceedings

             (1)  This section applies to a proceeding in relation to which all of the following paragraphs are satisfied:

                     (a)  the proceeding was started in a court before the commencement;

                     (b)  the proceeding was a federal corporations proceeding that related to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied; and

                     (c)  the proceeding had been concluded or terminated before the commencement.

             (2)  A decision or order made in the proceeding may be appealed against, or otherwise reviewed, as if it had been made in a proceeding that related to a matter to which a provision of this Act applied.

             (3)  An order made in the proceeding may be enforced as if it had been made in a proceeding that related to a matter to which a provision of this Act applied.

1384B  Effect of decisions and orders made in federal corporations proceedings before commencement

             (1)  For the avoidance of doubt, if:

                     (a)  a proceeding was started in a court before the commencement; and

                     (b)  the proceeding was a federal corporations proceeding that related to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied; and

                     (c)  a decision was made or an order given in the proceeding before the commencement;

the decision or order continues to have effect after the commencement despite the provision of the old corporations legislation ceasing to have effect.

             (2)  This section does not limit the operation of section 1384 in relation to the decision or order.

1385  References to proceedings and orders in the new corporations legislation

             (1)  Subject to subsection (5), a reference in the new corporations legislation to the taking of a proceeding, or a step in a proceeding, in a court under or in relation to a part or provision of the new corporations legislation includes a reference to the taking of a proceeding, or the equivalent step in a proceeding:

                     (a)  before the commencement under or in relation to the corresponding part or provision of the old corporations legislation of a State or Territory; or

                     (b)  after the commencement under or in relation to the corresponding part or provision of the old corporations legislation of a State or Territory in this jurisdiction, as that legislation continues to have effect after the commencement.

             (2)  Subject to subsections (3), (4) and (5), a reference in the new corporations legislation to an order made by a court under or in relation to a part or provision of the new corporations legislation includes a reference to an order made:

                     (a)  before the commencement under or in relation to the corresponding part or provision of the old corporations legislation of a State or Territory; or

                     (b)  after the commencement under or in relation to the corresponding part or provision of the old corporations legislation of a State or Territory in this jurisdiction, as that legislation continues to have effect after the commencement.

             (3)  Nothing in subsection (2) is taken to produce a result that would:

                     (a)  make a person liable, under the new corporations legislation, to any penalty (whether civil or criminal) provided for in an order referred to in paragraph (2)(a) or (b); or

                     (b)  enable an enforcement proceeding, or an appeal or review proceeding, in relation to such an order to be taken in a court under the new corporations legislation; or

                     (c)  enable proceedings by way of appeal, or other review, of such an order to be taken in a court under the new corporations legislation.

             (4)  If, after the commencement, an order referred to in paragraph (2)(a) or (b) is varied or set aside on appeal or review, subsection (2) applies, or is taken to have applied, from the time from which the variation or setting aside takes or took effect, as if:

                     (a)  if the order is varied—the order had been made as so varied; or

                     (b)  if the order is set aside—the order had not been made.

             (5)  The regulations may provide that subsection (1) or (2) does not apply in relation to a particular reference or class of references in the new corporations legislation.


 

Division 5Other specific transitional provisions

1386  Division has effect subject to Division 7 regulations

                   This Division has effect subject to regulations made for the purposes of Division 7.

1387  Certain applications lapse on the commencement

             (1)  An application:

                     (a)  under section 117 for the registration of a company; or

                     (b)  under section 601BC for the registration of a body as a company;

that was made by a person before the commencement, but that had not been dealt with by the commencement, lapses on the commencement.

             (2)  Any fee that was paid in respect of the application must be returned to the person, unless it is, with the person’s permission, credited against the fee payable in respect of another application the person makes under this Act after the commencement.

1388  Carrying over the Partnerships and Associations Application Order

                   The application order in force immediately before the commencement for paragraph 115(b) of the old Corporations Law of each State and Territory in this jurisdiction continues to have effect (and may be dealt with) after the commencement as if it were a regulation in force under section 1364 of this Act made for the purposes of subsection 115(2) of this Act.

1389  Evidentiary certificates

             (1)  A certificate by ASIC (whether issued before or after the commencement) stating that a company was registered under the old Corporations Law of a State or Territory in this jurisdiction is conclusive evidence that:

                     (a)  all requirements of that Law for the company’s registration were complied with; and

                     (b)  the company was duly registered as a company under that Law on the date (if any) specified in the certificate.

             (2)  A certificate issued before the commencement under pre‑Corporations Law legislation (see subsection (3)) by the authority responsible for administering that legislation stating that a body was registered as a company under that legislation or other pre‑Corporations Law legislation is conclusive evidence that:

                     (a)  all requirements of that legislation for the company’s registration were complied with; and

                     (b)  the company was duly registered as a company under that legislation on the date (if any) specified in the certificate.

             (3)  In subsection (2):

pre‑Corporations Law legislation means legislation that was, for the purposes of the old Corporations Law of a State or Territory in this jurisdiction, a corresponding previous law in relation to that old Corporations Law.

1390  Preservation of nomination of body corporate as SEGC

                   The nomination in force immediately before the commencement under section 67 of the old Corporations Act continues to have effect (and may be dealt with) after the commencement as if it were a nomination under section 890A of this Act.

1391  Preservation of identification of satisfactory records

                   A notice in force immediately before the commencement under section 70 of the old Corporations Act continues to have effect (and may be dealt with) after the commencement as if it were a notice under subsection 147(5) of this Act.

1392  Retention of information obtained under old corporations legislation of non‑referring State

                   If a particular State is not a referring State on the commencement, that does not mean that ASIC must then remove from, or cease to retain in, a database or register it maintains information that ASIC obtained before the commencement under or because of (whether in whole or in part) the operation of the old corporations legislation of that State.

1393  Transitional provisions relating to section 1351 fees

             (1)  If:

                     (a)  either:

                              (i)  before the commencement, a person paid an amount as required by section 1351 of the old Corporations Law of a State or Territory in respect of a particular matter; or

                             (ii)  after the commencement, a person pays an amount as required by subsection 9(2) of the Corporations (Fees) Act 2001 in respect of a particular matter; and

                     (b)  a fee is also payable under section 1351 of this Act in respect of the same matter;

the payment they made or make as mentioned in subparagraph (a)(i) or (ii) is taken to satisfy their liability to pay the fee referred to in paragraph (b).

             (2)  If:

                     (a)  before the commencement, a person paid a deposit as required by section 1357 of the old Corporations Law of a State or Territory in respect of a particular matter; and

                     (b)  a fee is payable under section 1351 of this Act in respect of the same matter;

the deposit must be applied against the liability to pay the fee.

1394  Transitional provisions relating to securities exchange fidelity fund levies

             (1)  If:

                     (a)  before the commencement, a person paid an amount as required by subsection 902(1) of the old Corporations Law of a State or Territory in order to be admitted to:

                              (i)  membership of a securities exchange; or

                             (ii)  membership of a partnership in a member firm recognised by a securities exchange; and

                     (b)  that person had not been so admitted by the commencement of this Act;

the payment they made before the commencement is taken to satisfy their liability to pay the levy referred to in subsection 902(1) of this Act in respect of their admission after the commencement to that securities exchange or firm.

             (2)  If:

                     (a)  either:

                              (i)  before the commencement, a person paid an amount as required by subsection 902(2) of the old Corporations Law of a State or Territory to a securities exchange in respect of a year some or all of which occurs after the commencement of this Act; or

                             (ii)  after the commencement, a person pays an amount as required by subsection 8(3) of the Corporations (Securities Exchanges Levies) Act 2001 in respect of a year some or all of which occurs after the commencement of this Act; and

                     (b)  a levy is also payable under subsection 902(2) of this Act in respect of the securities exchange and the year;

the payment they made or make as mentioned in subparagraph (a)(i) or (ii) is taken to satisfy their liability to pay the levy referred to in paragraph (b).

             (3)  If, before the commencement, a person paid an amount to a securities exchange as required by subsection 902(2) of the old Corporations Law of a State or Territory, that payment is to be counted, for the purposes of:

                     (a)  the reference in paragraph (a) of the definition of relevant person in subsection 903(1) of this Act; and

                     (b)  subsection 903(5) of this Act;

as if it were a payment of a kind referred to in that paragraph or that subsection, as the case requires.

1395  Transitional provisions relating to National Guarantee Fund levies

             (1)  If:

                     (a)  either:

                              (i)  before the commencement, a person paid an amount as required by section 938 of the old Corporations Law of a State or Territory in respect of a particular transaction; or

                             (ii)  after the commencement, a person pays an amount of levy imposed by subsection 6(1) of the Corporations (National Guarantee Fund Levies) Act 2001 in respect of a particular transaction; and

                     (b)  a levy is also payable under section 938 of this Act in respect of the same transaction;

the payment they made or make as mentioned in subparagraph (a)(i) or (ii) is taken to satisfy their liability to pay the levy referred to in paragraph (b).

             (2)  Subject to subsection (3), a determination of a matter (other than a rate or rates, or an amount) in force immediately before the commencement for the purposes of section 938, 940 or 941 of the old Corporations Law of a State or Territory in this jurisdiction continues to have effect (and may be dealt with) after the commencement of this Act as if it were:

                     (a)  in the case of a determination for the purposes of section 938—a determination for the purposes of section 938 of this Act; or

                     (b)  in the case of a determination for the purposes of section 940—a determination for the purposes of section 940 of this Act; or

                     (c)  in the case of a determination for the purposes of section 941—a determination for the purposes of section 941 of this Act.

             (3)  Nothing in subsection (2) is taken to produce a result that a levy is payable by a person in respect of the same matter in respect of which levy is imposed on the person by subsection 6(1), (2) or (3) of the Corporations (National Guarantee Fund Levies) Act 2001.

1396  Transitional provisions relating to futures organisation fidelity fund levies

             (1)  If:

                     (a)  before the commencement, a person paid an amount as required by subsection 1234(1) of the old Corporations Law of a State or Territory in order to be admitted to membership of a futures organisation; and

                     (b)  that person had not been so admitted by the commencement of this Act;

the payment they made before the commencement is taken to satisfy their liability to pay the levy referred to in subsection 1234(1) of this Act in respect of their admission after the commencement to that futures organisation.

             (2)  If:

                     (a)  either:

                              (i)  before the commencement, a contributing member of a futures organisation paid an amount as required by subsection 1234(2) of the old Corporations Law of a State or Territory to a futures organisation in respect of a year some or all of which occurs after the commencement of this Act; or

                             (ii)  after the commencement, a person pays an amount as required by subsection 6(1) of the Corporations (Futures Organisations Levies) Act 2001 in respect of a year some or all of which occurs after the commencement of this Act; and

                     (b)  a levy is also payable under subsection 1234(2) of this Act in respect of the futures organisation and the year;

the payment they made or make as mentioned in subparagraph (a)(i) or (ii) is taken to satisfy their liability to pay the levy referred to in paragraph (b).


 

Division 6General transitional provisions relating to other things done etc. under the old corporations legislation

1397  Limitations on scope of this Division

             (1)  This Division has effect subject to:

                     (a)  the provisions of Divisions 2, 3, 4 and 5 (which deal with matters in more specific terms); and

                     (b)  regulations made for the purposes of Division 7.

             (2)  Nothing in this Division applies to:

                     (a)  an order made by a court before the commencement; or

                     (b)  a right or liability under an order made by a court before the commencement; or

                     (c)  a right to:

                              (i)  appeal to a court against an order made by a court before the commencement;

                             (ii)  apply to a court for review of such an order; or

                            (iii)  bring an appeal or review proceeding, or an enforcement proceeding, within the meaning of section 1382, in respect of such an order; or

                     (d)  subject to subsection (3)—a proceeding taken (including an appeal, review or enforcement proceeding) in a court before the commencement, or a step in such a proceeding.

Note:          Division 4 deals with court orders and proceedings made or begun before the commencement, and with related matters.

             (3)  Despite paragraph (2)(d), sections 1400 and 1401 apply to any right or liability to which a proceeding to which section 1383 or 1384 applies relates.

             (4)  Nothing in this Division applies to a liability under section 902, 904, 938, 940, 941, 1234, 1235 or 1351 of the old Corporations Law of a State or Territory in this jurisdiction to pay a contribution, levy or fee.

Note:          These liabilities are preserved as taxes by provisions of the following Acts:

(a)    the Corporations (Securities Exchanges Levies) Act 2001;

(b)    the Corporations (National Guarantee Fund Levies) Act 2001;

(c)    the Corporations (Futures Organisations Levies) Act 2001;

(d)    the Corporations (Fees) Act 2001.

             (5)  Except as mentioned in subsections (1) to (4), nothing in Division 2, 3, 4 or 5, or in regulations made for the purposes of Division 7, is intended to limit the generality of the provisions in this Division.

1398  Provisions of this Division may have an overlapping effect

                   The provisions of this Division deal at a broad level with concepts and matters in a way that is intended to achieve the object of this Part as set out in section 1370. Some of the provisions of this Division will (depending on the situation) have an effect that overlaps or interacts to some extent with the effect of other provisions of this Division. This is intended, and the provisions of this Division should be not be regarded as dealing with mutually exclusive situations.

1399  Things done by etc. carried over provisions continue to have effect

             (1)  Subject to this section, a thing that:

                     (a)  was done before the commencement by, under, or for the purposes of, a carried over provision of the old corporations legislation of a State or Territory in this jurisdiction; and

                     (b)  had an ongoing significance (see subsections (4) and (5)) immediately before the commencement for the purposes of that legislation;

has effect (and may be dealt with) after the commencement, for the purposes of the new corporations legislation, as if it were done by, under, or for the purposes of, the corresponding provision of the new corporations legislation.

Note:          This section covers all kinds of things done, including things of a coercive nature or done for coercive purposes.

             (2)  Examples of things done include:

                     (a)  the making of an instrument or order (but not including the making of an order by a court); and

                     (b)  the making of an application or claim (but not including the making of an application or claim to a court); and

                     (c)  the granting of an application or claim (but not including the granting of an application or claim by a court); and

                     (d)  the making of an appointment or delegation; and

                     (e)  the commencement of a procedure or the taking of a step in a procedure (but not including the commencement of a proceeding in a court); and

                      (f)  the establishment of a register or fund; and

                     (g)  requiring a person to do, or not to do, something (but not including a requirement contained in an order made by a court); and

                     (h)  the giving of a notice or document.

             (3)  The examples in subsection (2) are not intended to limit the generality of the language of subsection (1).

             (4)  Subject to subsection (5), for the purposes of this section, a thing done by, under, or for the purposes of, a carried over provision of the old corporations legislation of a State or Territory had an ongoing significance immediately before the commencement for the purposes of that legislation if:

                     (a)  if the thing done was the making of an instrument or order—the instrument or order was still in force immediately before the commencement; or

                     (b)  if the thing done was the making of an application or claim—the application or claim had not been decided, and had not otherwise ceased to have effect, before the commencement; or

                     (c)  if the thing done was the granting of an application or claim—the thing granted had not been revoked, and had not otherwise ceased to have effect, before the commencement; or

                     (d)  if the thing done was the making of an appointment or delegation—the appointment or delegation had not been revoked, and had not otherwise ceased to have effect, before the commencement; or

                     (e)  if the thing done was the commencement of a procedure or the taking of a step in a procedure—the procedure was still in progress immediately before the commencement or was otherwise still having an effect; or

                      (f)  if the thing done was the establishment of a register or fund—the register or fund was still in existence immediately before the commencement; or

                     (g)  if the thing done was requiring a person to do, or not to do something—the requirement was still in force immediately before the commencement; or

                     (h)  if the thing done was the giving of a notice or document, or the doing of some other thing—the notice or document (or the giving of the notice or document), or the thing (or the doing of the thing), had an ongoing effect or significance immediately before the commencement for the purposes of the old corporations legislation of the State or Territory.

             (5)  The regulations may provide that a specified thing done under, or for the purposes of, a carried over provision of the old corporations legislation of a State or Territory did, or did not, have an ongoing significance immediately before the commencement for the purposes of that legislation.

1400  Creation of equivalent rights and liabilities to those that existed before the commencement under carried over provisions of the old corporations legislation

             (1)  Subject to subsection (4), this section applies in relation to a right or liability (the pre‑commencement right or liability), whether civil or criminal, that:

                     (a)  was acquired, accrued or incurred under a carried over provision of the old corporations legislation of a State or Territory in this jurisdiction; and

                     (b)  was in existence immediately before the commencement.

However, this section does not apply to a right or liability under an order made by a court before the commencement.

             (2)  On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the pre‑commencement right or liability, under the corresponding provision of the new corporations legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre‑commencement right or liability).

Note:          If a time limit applied in relation to the pre‑commencement right or liability under the old corporations legislation, that same time limit (calculated from the same starting point) will apply under the new corporations legislation to the substituted right or liability—see subsection 1402(3).

             (3)  A procedure, proceeding or remedy in respect of the substituted right or liability may be instituted after the commencement under the new corporations legislation (as if that provision applied to the conduct or circumstances that gave rise to the pre‑commencement right or liability).

Note:          For pre‑commencement proceedings in respect of substituted rights and liabilities, see sections 1383 and 1384.

             (4)  If, immediately before the commencement, a person had an accrued right to make a claim under a provision of Part 7.10 of the old Corporations Law of a State that is not a referring State (and so is not in this jurisdiction), this section applies in relation to that right in the same way as it would have applied if the State had been a referring State.

Note:          Except to the extent provided in this subsection, this Part does not create rights and liabilities that are equivalent to those that existed under the old corporations legislation of a non‑referring State.

1401  Creation of equivalent rights and liabilities to those that existed before the commencement under repealed provisions of the old corporations legislation

             (1)  This section applies in relation to a right or liability (the pre‑commencement right or liability), whether civil or criminal, that:

                     (a)  was acquired, accrued or incurred under a provision of the old corporations legislation of a State or Territory in this jurisdiction that was no longer in force immediately before the commencement; and

                     (b)  was in existence immediately before the commencement.

However, this section does not apply to a right or liability under an order made by a court before the commencement.

             (2)  For the purposes of subsections (3) and (4), the new corporations legislation is taken to include:

                     (a)  the provision of the old corporations legislation (with such modifications (if any) as are necessary) under which the pre‑commencement right or liability was acquired, accrued or incurred; and

                     (b)  the other provisions of the old corporations legislation (with such modifications (if any) as are necessary) that applied in relation to the pre‑commencement right or liability.

             (3)  On the commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the pre‑commencement right or liability, under the provision taken to be included in the new corporations legislation by paragraph (2)(a) (as if that provision applied to the conduct or circumstances that gave rise to the pre‑commencement right or liability).

Note:          If a time limit applied in relation to the pre‑commencement right or liability under the old corporations legislation, that same time limit (calculated from the same starting point) will apply under the new corporations legislation to the substituted right or liability—see subsection 1402(3).

             (4)  A procedure, proceeding or remedy in respect of the substituted right or liability may be instituted after the commencement under the provisions taken to be included in the new corporations legislation by subsection (2) (as if those provisions applied to the conduct or circumstances that gave rise to the pre‑commencement right or liability).

Note:          For pre‑commencement proceedings in respect of substituted rights and liabilities, see sections 1383 and 1384.

1402  Old corporations legislation time limits etc.

             (1)  An old corporations legislation time limit (see subsection (4)):

                     (a)  the starting point of which:

                              (i)  was known or had been determined before the commencement (whether that starting point occurred or would occur before, on or after the commencement); or

                             (ii)  would have become known, or have been determined, after the commencement if the old corporations legislation of the relevant State or Territory had continued to apply (whether that starting point would have occurred before, on or after the commencement); and

                     (b)  that had not ended at or before the commencement;

continues to run, or starts or started to run, as if that same time limit (starting from the same starting point) were applicable under the new corporations legislation.

             (2)  If:

                     (a)  under the old corporations legislation, a process (for example, the winding up of a company), a status of a person or body (for example, a body’s registration as a company or a person’s status as a registered liquidator), or an instrument, commenced from a particular time before the commencement; and

                     (b)  that process, status or instrument is continued after the commencement for the purposes of the new corporations legislation by a provision of this Part;

that process, status or instrument as so continued is still taken to have commenced from the time referred to in paragraph (a).

             (3)  If an old corporations legislation time limit related to a pre‑commencement right or liability, the same time limit applies in relation to the substituted right or liability.

             (4)  In this section:

old corporations legislation time limit includes:

                     (a)  a period for the doing of a thing specified or determined under a provision of the old corporations legislation of a State or Territory; or

                     (b)  a period specified or determined under a provision of the old corporations legislation of a State or Territory as the duration of a particular instrument or status.

1403  Preservation of significance etc. of events or circumstances

             (1)  An event, circumstance or other thing:

                     (a)  that occurred or arose before the commencement under or as mentioned in a provision of the old corporations legislation of a State or Territory in this jurisdiction; and

                     (b)  that had a particular significance, status or effect for the purposes of a carried over provision of that legislation (including because of an interpretive provision);

has that same significance, status and effect after the commencement for the purposes of the provision of the new corporations legislation that corresponds to that carried over provision.

Note:          So, for example:

(a)    if a company took action before the commencement that had the result for the purposes of section 200B of the old Corporations Law of making a superannuation fund a prescribed superannuation fund in relation to the company, that action has that same effect for the purposes of section 200B of this Act; and

(b)    a delay that could have been taken into account for the purposes of subsection 874(1) of the old Corporations Law also counts for the purposes of subsection 874(1) of this Act.

             (2)  Without limiting subsection (1), an event, circumstance or other thing had a particular significance for the purposes of a carried over provision of the old corporations legislation of a State or Territory in this jurisdiction if:

                     (a)  the carried over provision created an obligation in respect of the event, circumstance or thing (whenever it arose); or

                     (b)  the carried over provision provided for the event, circumstance or thing to be dealt with in a particular way; or

                     (c)  the carried over provision stated that the event, circumstance or thing (whenever it arose) was to be disregarded for the purposes of that provision or was not covered by that provision.

1404  References in the new corporations legislation generally include references to events, circumstances or things that happened or arose before the commencement

             (1)  Subject to this section, a reference in the new corporations legislation to an event, circumstance or thing of a particular kind that happens or arises, or that has happened or arisen, is taken to include a reference to an event, circumstance or thing of that kind that happened or arose at a time before the commencement, unless a contrary intention is expressed. The fact that the provision uses only the present tense in referring to an event, circumstance or thing is not, of itself, to be regarded as an expression of a contrary intention.

Note:          So, for example, if a provision of the new corporations legislation refers to a person who consents to a course of action, that reference (in the absence of an express provision to the contrary) will not be limited to consents given after the commencement and will cover a consent given before the commencement.

             (2)  Nothing in subsection (1) is taken to produce a result that a right or liability exists under a provision of the new corporations legislation that relates solely to events, circumstances or things that occurred before the commencement.

Note:          Instead, an equivalent right or liability will be created by section 1400 or 1401.

             (3)  The regulations may provide that subsection (1) does not apply in relation to a particular reference or class of references in the new corporations legislation.

1405  References in the new corporations legislation to that legislation or the new ASIC legislation generally include references to corresponding provisions of the old corporations legislation or old ASIC legislation

             (1)  Subject to subsection (4), a reference in the new corporations legislation to:

                     (a)  an Act, or regulations or another instrument that is part of the new corporations legislation; or

                     (b)  a provision or group of provisions of such an Act, regulations or other instrument;

is taken, in relation to events, circumstances or things that happened or arose at a time before the commencement when the old corporations legislation was in force, to include (in the absence of an express provision to the contrary) a reference to the corresponding part, provision or provisions of the old corporations legislation of the States and Territories in this jurisdiction.

             (2)  Subject to subsection (4), a reference in the new corporations legislation to:

                     (a)  an Act, or regulations or some other instrument that is part of the new ASIC legislation; or

                     (b)  a provision or group of provisions of such an Act, regulations or other instrument;

is taken, in relation to events, circumstances or things that happened or arose at a time before the commencement when the old corporations legislation was in force, to include (in the absence of an express provision to the contrary) a reference to the corresponding part, provision or provisions of the old ASIC legislation of the Commonwealth, of the States in this jurisdiction and of the Northern Territory.

             (3)  In subsection (2):

                     (a)  new ASIC legislation and old ASIC legislation have the same meanings as they have in Part 16 of the Australian Securities and Investments Commission Act 2001; and

                     (b)  the question whether a provision or part of the old ASIC legislation corresponds to a provision of part of the new ASIC legislation is to be determined in the same way as it is determined for the purposes of Part 16 of the Australian Securities and Investments Commission Act 2001.

             (4)  The regulations may provide that subsection (1) or (2) does not apply in relation to a particular reference or class of references in the new corporations legislation.

1406  Carrying over references to corresponding previous laws

             (1)  If a carried over provision of the old corporations legislation of a State or Territory in this jurisdiction contained a reference (whether in its own terms or by operation of another provision) to:

                     (a)  a corresponding previous law (as defined for the purposes of that provision or provisions including that provision); or

                     (b)  a thing done by, under, or for the purposes of, such a law;

the corresponding provision of the new corporations legislation is taken to contain an equivalent reference to that previous law, or to such a thing done by, under, or for the purposes of, that previous law.

             (2)  The following references in the old corporations legislation of the States and Territories in this jurisdiction are covered by subsection (1) in the same way as they would be if they used the “corresponding previous law” form of words:

                     (a)  the reference in subsection 1274AA(1) to a “previous Law”;

                     (b)  the reference in subparagraph 1274AA(2)(b)(ii) to a “previous law of this jurisdiction before the commencement of this Part that corresponds”;

                     (c)  any other references prescribed by the regulations for the purposes of this subsection.

1407  References to old corporations legislation in instruments

             (1)  Subject to subsection (2), a reference in, or taken immediately before the commencement to be in, an instrument, other than:

                     (a)  an Act of a State, the Australian Capital Territory, the Northern Territory or Norfolk Island; or

                     (b)  an instrument made under such an Act;

to:

                     (c)  an Act, or to regulations or some other instrument, that is part of the old corporations legislation (whether the reference is in general terms or in relation to a particular State or Territory in this jurisdiction); or

                     (d)  to a provision or group of provisions of such an Act, regulations or other instrument;

is taken, after the commencement, to include a reference to the corresponding part, provision or provisions of the new corporations legislation (unless there is no such corresponding part, provision or provisions).

Note:          This section will, for example, apply to:

(a)    a reference in another Commonwealth Act to the Corporations Law; or

(b)    a reference in the Corporations Regulations to the Corporations Law; or

(c)    a reference in a company’s constitution to a particular provision of the Corporations Law.

             (2)  The regulations may do either or both of the following:

                     (a)  provide that subsection (1) does not apply in relation to prescribed references in prescribed instruments;

                     (b)  provide that subsection (1) has effect in relation to prescribed references in prescribed instruments as if, in that subsection, the words “to be” were substituted for the words “to include”.

1408  Old transitional provisions continue to have their effect

             (1)  Subject to subsection (3), this Act has the same effect, after the commencement, as it would have if:

                     (a)  the transitional provisions (see subsections (6) and (7)) of the old Corporations Laws of the States and Territories in this jurisdiction (as in force from time to time before the commencement) had been part of this Act; and

                     (b)  those transitional provisions produced the same results or effects (to the greatest extent possible) for the purposes of this Act as they produced for the purposes of those old Corporations Laws.

             (2)  Without limiting subsection (1) (but subject to subsection (3)), if a transitional provision of the old Corporations Law of a State or Territory in this jurisdiction could, if it had continued in force after the commencement, have operated to give rise to rights and liabilities (including civil or criminal liabilities) in relation to acts or omissions occurring after the commencement, this Act is taken to include that transitional provision (with such modifications (if any) as are necessary.

Note:          In relation to acts or omissions that occurred before the commencement, equivalent rights and liabilities are created by sections 1400 and 1401.

             (3)  The regulations may determine how a matter dealt with in a transitional provision of the old Corporations Law of a State or Territory in this jurisdiction is to be dealt with under or in relation to the new corporations legislation (including by creating offences). The regulations have effect despite subsections (1) and (2), but subject to subsection (5).

Note:          In creating offences, the regulations are subject to the limitation imposed by section 1375.

             (4)  For the purpose of determining whether the new corporations legislation includes a provision that corresponds to a provision of the old corporations legislation of a State or Territory, and for the purpose of any reference in this part to a corresponding provision of the new corporations legislation, this Act is taken to include the transitional provisions of the old corporations legislation of the States and Territories, as they have effect because of subsections (1) and (2).

             (5)  Nothing in subsection (1) or (2), or in regulations made for the purposes of subsection (3), is taken to produce a result that a right or liability exists under a transitional provision as it has effect because of subsection (1) or (2), or exists under regulations made for the purposes of subsection (3), that relates solely to events, circumstances or things that occurred before the commencement.

Note:          Instead, an equivalent right or liability will be created by section 1400 or 1401.

             (6)  Subject to subsection (7), for the purposes of this section, a transitional provision is any of the provisions of the old Corporations Laws of the States and Territories in this jurisdiction listed in the following table.

 

Transitional provisions of old Corporations Law

Item

Provisions

1

subsection 87(1A)

2

subsection 88(1A)

3

sections 109E to 109G and section 109T

4

section 268A

5

section 275

6

section 275A

7

Subsections 319(4), (5) and (6)

8

section 601

9

subsection 774(7)

10

subsection 895(3)

11

subsection 977(4)

12

subsection 990(2)

13

section 993

14

subsection 1228(3)

15

subsections 1274(17) and (18)

16

subsections 1288(1), (2) and (6)

17

paragraph 1311(1A)(f) and subsection 1311(3A)

18

section 1336A

19

Chapter 11, other than section 1416

20

Schedule 4, other than the following provisions:

      (a)     subclauses 7(3), 8(2) and 9(4);

      (b)     clauses 11 to 16;

      (c)     subclause 17(2);

      (d)     clauses 18 and 19;

      (e)     clauses 20, 25 and 27;

      (f)     Parts 5, 6 and 7.

             (7)  The regulations may provide that certain provisions are to be taken to be included in, or omitted from, the table in subsection (6). The table then has effect as if the provisions were so included in it or omitted from it.


 

Division 7Regulations dealing with transitional matters

1409  Regulations may deal with transitional matters

             (1)  The regulations may deal with matters of a transitional nature relating to the transition from the application of provisions of the old corporations legislation of the States and Territories in this jurisdiction to the application of provisions of the new corporations legislation. The regulations have effect despite anything else in this Part, other than section 1375.

             (2)  Without limiting subsection (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:

                     (a)  by applying (with or without modifications) to the matter:

                              (i)  provisions of the old corporations legislation of the States and Territories in this jurisdiction, as in force immediately before the commencement or at some earlier time; or

                             (ii)  provisions of the new corporations legislation; or

                            (iii)  a combination of provisions referred to in subparagraphs (i) and (ii);

                     (b)  by otherwise specifying rules for dealing with the matter;

                     (c)  by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of the new corporations legislation.

             (3)  The regulations may provide that certain provisions of this Part are taken to be modified as set out in the regulations. Those provisions then have effect as if they were so modified.

             (4)  Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations for the purposes of this section may be expressed to take effect from a date before the regulations are registered under that Act.

             (5)  In this section:

matters of a transitional nature also includes matters of an application or saving nature.


 

Part 10.2Transitional provisions relating to the Financial Services Reform Act 2001

Division 1Transitional provisions relating to the phasing‑in of the new financial services regime

Subdivision APreliminary

1410  Definitions

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

amended Corporations Act means this Act as in force after the FSR commencement.

associated provisions, in relation to provisions (the core provisions) of a particular Act as in force at a particular time, include (but are not limited to):

                     (a)  any regulations or other instruments that are or were in force for the purposes of any of the core provisions at that time; and

                     (b)  any interpretation provisions that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and

                     (c)  any provisions relating to liability (civil or criminal) that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and

                     (d)  any provisions that limit or limited, or that otherwise affect or affected, the operation of any of the core provisions at that time (whether or not they also limit or limited, or affect or affected, the operation of other provisions).

class, in relation to financial products, has a meaning affected by regulations made for the purposes of subsection (2).

FSR commencement means the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001.

old Corporations Act means this Act as in force immediately before the FSR commencement.

regulated activities, in relation to a regulated principal, has the meaning given by section 1430.

regulated principal has the meaning given by section 1430.

relevant old legislation, in relation to a regulated principal, has the meaning given by section 1430.

transition period:

                     (a)  in relation to a market to which section 1414, 1418, 1420, 1421 or 1422 applies—has the meaning given by subsection (2) of that section; and

                     (b)  in relation to a market to which section 1417 applies and the additional products referred to in that section—has the meaning given by subsection 1417(2); and

                     (c)  in relation to a clearing and settlement facility to which section 1426 or 1429 applies—has the meaning given by subsection (2) of that section; and

                     (d)  in relation to a clearing and settlement facility to which section 1428 applies and the additional products referred to in that section—has the meaning given by subsection 1428(2); and

                     (e)  in relation to a regulated principal—has the meaning given by subsection 1431(1); and

                      (f)  in relation to a financial product to which section 1438 applies—has the meaning given by subsection (3) of that section.

          (1A)  Other expressions used in this Part that are defined in Division 2 of Part 7.1 have the same meanings as they are given by that Division. This has effect subject to:

                     (a)  any contrary intention in a provision of this Part; or

                     (b)  regulations made for the purposes of this paragraph.

             (2)  The regulations may include provisions identifying, or providing for the identification of, what constitutes a class of financial products for the purposes of a provision or provisions of this Division.

             (3)  If a provision of this Division (the transitional provision) provides for a provision of this or another Act (the preserved provision), as in force immediately before the FSR commencement, to continue to apply to or in relation to a person, thing or matter:

                     (a)  the preserved provision so continues to apply only to the extent (if any) to which it is expressed in terms that cover the person, thing or matter; and

                     (b)  the transitional provision is not taken to extend the scope of the preserved provision (otherwise than by giving it a continued operation).

Subdivision BTreatment of existing markets

1411  When is a market being operated immediately before the FSR commencement?

                   Subject to section 1412, in this Subdivision, a reference to a market being operated immediately before the FSR commencement is a reference to a market that had not permanently ceased to operate before the FSR commencement, even if trading on the market was not actually occurring immediately before the FSR commencement (for example, because of a routine temporary closure of the market).

1412  Treatment of proposed markets that have not started to operate by the FSR commencement

             (1)  This section applies in relation to the following proposed markets, other than any such market that starts to operate before the FSR commencement:

                     (a)  a market proposed to be operated by Bendigo Stock Exchange Ltd, or by ASX Futures Exchange Pty Limited, that is identified in writing by the Minister as being a proposed market to which this section applies;

                     (b)  any other proposed market identified in, or in accordance with, regulations made for the purposes of this paragraph.

For this purpose, a proposed market is a market that a person has, before the FSR commencement, indicated an intention that they propose to operate.

             (2)  This Subdivision applies in relation to a proposed market to which this section applies subject to the following paragraphs:

                     (a)  subject to paragraphs (b), (c) and (d), this Subdivision applies in relation to the proposed market as if the market, as proposed to be operated, were in fact being operated immediately before the FSR commencement;

                     (b)  if, taking account of the effect of paragraph (a), section 1413 applies in relation to the proposed market, that section applies in relation to the proposed market: