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Corporations Act 2001

Authoritative Version
Act No. 50 of 2001 as amended, taking into account amendments up to Treasury Laws Amendment (2016 Measures No. 1) Act 2017
An Act to make provision in relation to corporations and financial products and services, and for other purposes
Administered by: Attorney-General's; Treasury
Registered 10 Apr 2017
Start Date 05 Apr 2017
Table of contents.

Corporations Act 2001

No. 50, 2001

Compilation No. 77

Compilation date:                              5 April 2017

Includes amendments up to:            Act No. 25, 2017

Registered:                                         10 April 2017

This compilation is in 6 volumes

Volume 1:       sections 1–260E

Volume 2:       sections 283AA–601DJ

Volume 3:       sections 601EA–742

Volume 4:       sections 760A–993D

Volume 5:       sections 1010A–1369A

Volume 6:       sections 1370–1637

                        Schedules

                        Endnotes

Each volume has its own contents

 

About this compilation

This compilation

This is a compilation of the Corporations Act 2001 that shows the text of the law as amended and in force on 5 April 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Chapter 1—Introductory                                                                                      1

Part 1.1—Preliminary                                                                                                         1

1............................ Short title............................................................................ 1

2............................ Commencement.................................................................. 1

3............................ Constitutional basis for this Act.......................................... 1

4............................ Referring States.................................................................. 2

5............................ General territorial application of Act................................... 5

5A......................... Application to the Crown.................................................... 7

5B.......................... ASIC has general administration of this Act....................... 8

5C.......................... Application of the Acts Interpretation Act 1901.................. 8

Part 1.1A—Interaction between Corporations legislation and State and Territory laws              9

5D......................... Coverage of Part................................................................. 9

5E.......................... Concurrent operation intended............................................ 9

5F.......................... Corporations legislation does not apply to matters declared by State or Territory law to be an excluded matter.......................................................................................... 11

5G......................... Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws.......................................................................................... 12

5H......................... Registration of body as company on basis of State or Territory law        19

5I........................... Regulations may modify operation of the Corporations legislation to deal with interaction between that legislation and State and Territory laws............................ 21

Part 1.2—Interpretation                                                                                                  23

Division 1—General                                                                                                    23

6............................ Effect of this Part.............................................................. 23

7............................ Location of other interpretation provisions....................... 23

9............................ Dictionary......................................................................... 24

9AA...................... Certain family relationships.............................................. 96

9A......................... Meaning of rights issue.................................................... 96

9B.......................... Meaning of remuneration recommendation..................... 98

Division 2—Associates                                                                                             100

10.......................... Effect of Division........................................................... 100

11.......................... Associates of bodies corporate....................................... 100

12.......................... References in Chapters 6 to 6C, and other references relating to voting power and takeovers etc.           100

13.......................... References in Chapter 7.................................................. 102

15.......................... General........................................................................... 103

16.......................... Exclusions...................................................................... 103

17.......................... Associates of composite person that carries on a financial services business           104

Division 3—Carrying on business                                                                      105

18.......................... Carrying on business: otherwise than for profit.............. 105

19.......................... Businesses of a particular kind....................................... 105

20.......................... Carrying on a business: alone or together with others.... 105

21.......................... Carrying on business in Australia or a State or Territory 105

Division 5A—Types of company                                                                        107

45A....................... Proprietary companies.................................................... 107

45B........................ Small companies limited by guarantee............................ 109

Division 6—Subsidiaries and related bodies corporate                          111

46.......................... What is a subsidiary........................................................ 111

47.......................... Control of a body corporate’s board............................... 111

48.......................... Matters to be disregarded................................................ 112

49.......................... References in this Division to a subsidiary..................... 112

50.......................... Related bodies corporate................................................. 113

50AAA................. Associated entities.......................................................... 113

50AA.................... Control............................................................................ 114

Division 6A—Security interests                                                                          116

51.......................... Meaning of PPSA security interest................................. 116

51A....................... Meaning of security interest........................................... 116

51B........................ Meaning of secured party............................................... 116

51C........................ Meaning of circulating security interest......................... 117

51D....................... Meaning of possessory security interest......................... 117

51E........................ Meaning of secured creditor........................................... 117

51F........................ Meaning of PPSA retention of title property................... 118

Division 7—Interpretation of other expressions                                        120

52.......................... Doing acts....................................................................... 120

52A....................... Signing........................................................................... 120

53.......................... Affairs of a body corporate............................................. 120

53AA.................... Business affairs of a body corporate............................... 122

53AB..................... Business affairs of a natural person................................ 122

53AC..................... Business affairs of a partnership..................................... 123

53AD.................... Business affairs of a trust............................................... 123

57.......................... Classes of shares or interests in managed investment schemes                124

57A....................... Meaning of corporation................................................. 124

58AA.................... Meaning of court and Court........................................... 125

58B........................ Discharge of obligations under this Act.......................... 125

59.......................... Debentures as consideration for acquisition of shares.... 126

60.......................... Declaration of relevant relationships............................... 126

64.......................... Entering into a transaction in relation to shares or securities 127

64A....................... Entities............................................................................ 128

64B........................ Entities connected with a corporation.............................. 128

65.......................... Eligible money market dealer.......................................... 130

66A....................... Exempt bodies................................................................ 130

70.......................... Extension of period for doing an act............................... 130

73A....................... When a court is taken to find a person guilty of an offence 130

75.......................... Inclusion in official list................................................... 130

79.......................... Involvement in contraventions........................................ 131

80.......................... Jervis Bay Territory taken to be part of the Australian Capital Territory  131

82.......................... Offers and invitations to the public................................. 131

83.......................... Officers, and other persons, in default............................ 132

86.......................... Possession...................................................................... 132

88A....................... Public document of a body corporate.............................. 132

88B........................ Qualified accountants...................................................... 133

89.......................... Qualified privilege.......................................................... 134

90.......................... Receivers and managers.................................................. 134

91.......................... Relation‑back day........................................................... 134

92.......................... Securities........................................................................ 142

95A....................... Solvency and insolvency................................................ 143

Division 8—Miscellaneous interpretation rules                                          144

100........................ Address of registered office etc...................................... 144

100A..................... Operation of certain laws relating to instruments on which stamp duty has not been paid       144

101........................ Amount of stock representing a number of shares.......... 145

102........................ Applications to be in writing........................................... 145

102B...................... In Australia or elsewhere, in this jurisdiction or elsewhere etc.              145

102C...................... In Australia..................................................................... 145

103........................ Effect of certain contraventions of this Act..................... 145

104........................ Effect of provisions empowering a person to require or prohibit conduct                146

105........................ Calculation of time.......................................................... 146

106........................ Performance of functions by Commission delegate........ 146

107........................ Notice in relation to top 20 members of a class............... 147

108........................ Parts of dollar to be disregarded in determining majority in value of creditors etc.  147

109........................ References to persons, things and matters...................... 147

109X..................... Service of documents...................................................... 148

Part 1.2A—Disclosing entities                                                                                     149

Division 1—Object of Part                                                                                    149

111AA.................. Object of Part.................................................................. 149

Division 2—Definitions                                                                                            150

111AB................... Terms defined in Division.............................................. 150

111AC................... Disclosing entity............................................................. 150

111AD.................. ED securities................................................................... 150

111AE................... Securities of body or undertaking that is included in a licensed market’s official list               151

111AF................... Securities (except debentures and managed investment products) held by 100 or more persons             152

111AFA................ Managed investment products held by 100 or more persons 152

111AG.................. Securities issued as consideration for an acquisition under an off‑market takeover bid or Part 5.1 compromise or arrangement................................................................ 153

111AH.................. When a person holds securities for the purposes of sections 111AF, 111AFA and 111AG   154

111AI.................... Debentures...................................................................... 154

111AJ.................... Regulations may declare securities not to be ED securities 154

111AK................... ED securities of a disclosing entity................................. 154

111AL................... Listed or unlisted disclosing entity.................................. 155

111AM.................. Quoted ED securities...................................................... 155

Division 3—Significance of being a disclosing entity                               156

111AN.................. Division contains outline of significance of being a disclosing entity      156

111ANA............... Requirements relating to remuneration recommendations in relation to key management personnel        156

111AO.................. Accounting requirements................................................ 156

111AP................... Continuous disclosure requirements............................... 156

111AQ.................. Prospectus relief............................................................. 156

111AQA............... Product Disclosure Statement relief................................ 157

Division 4—Exemptions and modifications                                                   158

111AR................... Meaning of disclosing entity provisions......................... 158

111AS................... Exemptions by regulations.............................................. 158

111AT................... Exemptions by ASIC...................................................... 158

111AU.................. Enforcing conditions of exemptions............................... 159

111AV.................. Modifications by regulations.......................................... 159

111AW.................. Exemptions and modifications have effect...................... 159

111AX.................. Effect of Division........................................................... 159

Part 1.4—Technical provisions about aids for readers                               160

111J....................... Small business guide...................................................... 160

Part 1.5—Small business guide                                                                                  161

1............................ What registration means.................................................. 161

2............................ The company structure for small business...................... 166

3............................ Setting up a new company.............................................. 166

4............................ Continuing obligations after the company is set up......... 170

5............................ Company directors and company secretaries.................. 172

6............................ Shares and shareholders................................................. 176

7............................ Signing company documents.......................................... 178

8............................ Funding the company’s operations................................. 178

9............................ Returns to shareholders.................................................. 179

10.......................... Annual financial reports and audit.................................. 180

11.......................... Disagreements within the company................................ 182

12.......................... Companies in financial trouble........................................ 183

Part 1.6—Interaction with Australian Charities and Not‑for‑profits Commission Act 2012      185

111K...................... Bodies corporate registered under the Australian Charities and Not‑for‑profits Commission Act 2012  185

111L...................... Provisions not applicable to the body corporate.............. 185

111M..................... Member approval............................................................ 187

111N..................... Notices............................................................................ 188

111P...................... Annual general meetings................................................. 189

111Q..................... Presumptions to be made in recovery proceedings......... 189

Chapter 2A—Registering a company                                                  190

Part 2A.1—What companies can be registered                                               190

112........................ Types of companies........................................................ 190

113........................ Proprietary companies.................................................... 191

114........................ Minimum of 1 member................................................... 192

115........................ Restrictions on size of partnerships and associations...... 192

116........................ Trade unions cannot be registered................................... 193

Part 2A.2—How a company is registered                                                           194

117........................ Applying for registration................................................ 194

118........................ ASIC gives company ACN, registers company and issues certificate     196

119........................ Company comes into existence on registration............... 197

119A..................... Jurisdiction of incorporation and jurisdiction of registration 197

120........................ Members, directors and company secretary of a company 198

121........................ Registered office............................................................. 199

122........................ Expenses incurred in promoting and setting up company 199

123........................ Company may have common seal................................... 199

Chapter 2B—Basic features of a company                                    201

Part 2B.1—Company powers and how they are exercised                      201

124........................ Legal capacity and powers of a company........................ 201

125........................ Constitution may limit powers and set out objects.......... 202

126........................ Agent exercising a company’s power to make contracts. 202

127........................ Execution of documents (including deeds) by the company itself            202

Part 2B.2—Assumptions people dealing with companies are entitled to make    204

128........................ Entitlement to make assumptions.................................... 204

129........................ Assumptions that can be made under section 128........... 204

130........................ Information available to the public from ASIC does not constitute constructive notice            206

Part 2B.3—Contracts before registration                                                           207

131........................ Contracts before registration........................................... 207

132........................ Person may be released from liability but is not entitled to indemnity      208

133........................ This Part replaces other rights and liabilities................... 208

Part 2B.4—Replaceable rules and constitution                                               209

134........................ Internal management of companies................................. 209

135........................ Replaceable rules............................................................ 209

136........................ Constitution of a company.............................................. 210

137........................ Date of effect of adoption, modification or repeal of constitution             211

138........................ ASIC may direct company to lodge consolidated constitution 212

139........................ Company must send copy of constitution to member..... 212

140........................ Effect of constitution and replaceable rules..................... 212

141........................ Table of replaceable rules................................................ 213

Part 2B.5—Registered office and places of business                                    216

142........................ Registered office............................................................. 216

143........................ ASIC may change address of registered office to a director’s address     216

144........................ Company’s name must be displayed at registered office etc. 217

145........................ Opening hours of registered office of public company... 217

146........................ Change of address of principal place of business........... 218

146A..................... Contact address............................................................... 219

Part 2B.6—Names                                                                                                             220

Division 1—Selecting and using a name                                                         220

147........................ When a name is available................................................ 220

148........................ A company’s name......................................................... 221

149........................ Acceptable abbreviations................................................ 222

150........................ Exception to requirement for using “Limited” in name... 223

151........................ Exception to requirement for using “Limited” in name—pre‑existing licences         224

152........................ Reserving a name............................................................ 225

153........................ Using a name and ACN on documents........................... 226

154........................ Exception to requirement to have ACN on receipts........ 226

155........................ Regulations may exempt from requirement to set out information on documents    227

156........................ Carrying on business using “Limited”, “No Liability” or “Proprietary” in name     227

Division 2—Changing a company’s name                                                     228

157........................ Company changing its name........................................... 228

157A..................... Change of name of company under external administration 228

158........................ ASIC’s power to direct company to change its name..... 230

159........................ ASIC’s power to include “Limited” in company’s name 231

160........................ ASIC must issue new certificate if company’s name changes  231

161........................ Effect of name change..................................................... 231

161A..................... Company under external administration—former name to be used on documents   232

Part 2B.7—Changing company type                                                                     234

162........................ Changing company type................................................. 234

163........................ Applying for change of type........................................... 236

164........................ ASIC changes type of company..................................... 239

165........................ ASIC may direct a proprietary company to change to a public company in certain circumstances           241

166........................ Effect of change of type.................................................. 241

167........................ Issue of shares by company or holding company—company limited by guarantee changing to company limited by shares............................................................. 242

167AA.................. Application of Part to company limited both by shares and by guarantee                243

Chapter 2C—Registers                                                                                         244

Part 2C.1—Registers generally                                                                                  244

167A..................... Who is covered by this Chapter...................................... 244

168........................ Registers to be maintained.............................................. 244

169........................ Register of members....................................................... 245

170........................ Register of option holders and copies of options documents 247

171........................ Register of debenture holders......................................... 249

172........................ Location of registers....................................................... 249

173........................ Right to inspect and get copies........................................ 250

174........................ Agent’s obligations......................................................... 252

175........................ Correction of registers.................................................... 252

176........................ Evidentiary value of registers.......................................... 253

177........................ Use of information on registers...................................... 253

178........................ Overseas branch registers............................................... 254

Part 2C.2—Notice by proprietary companies of changes to member register     256

178A..................... Notice of change to member register............................... 256

178B...................... Top 20 only.................................................................... 257

178C...................... Notice of change to share structure................................. 257

178D..................... Time within which ASIC must be notified..................... 257

Chapter 2D—Officers and employees                                                  259

Part 2D.1—Duties and powers                                                                                  259

179........................ Background to duties of directors, other officers and employees             259

Division 1—General duties                                                                                    260

180........................ Care and diligence—civil obligation only....................... 260

181........................ Good faith—civil obligations.......................................... 261

182........................ Use of position—civil obligations.................................. 261

183........................ Use of information—civil obligations............................. 262

184........................ Good faith, use of position and use of information—criminal offences   262

185........................ Interaction of sections 180 to 184 with other laws etc.... 263

186........................ Territorial application of sections 180 to 184.................. 263

187........................ Directors of wholly‑owned subsidiaries......................... 264

188........................ Responsibility of secretaries etc. for certain corporate contraventions      264

189........................ Reliance on information or advice provided by others.... 265

190........................ Responsibility for actions of delegate............................. 266

190A..................... Limited application of Division to registrable Australian bodies              267

190B...................... Division does not apply to Aboriginal and Torres Strait Islander corporations        267

Division 2—Disclosure of, and voting on matters involving, material personal interests           268

191........................ Material personal interest—director’s duty to disclose... 268

192........................ Director may give other directors standing notice about an interest          270

193........................ Interaction of sections 191 and 192 with other laws etc.. 272

194........................ Voting and completion of transactions—directors of proprietary companies (replaceable rule—see section 135).................................................................... 272

195........................ Restrictions on voting—directors of public companies only 273

196........................ ASIC power to make declarations and class orders........ 274

Division 3—Duty to discharge certain trust liabilities                            276

197........................ Directors liable for debts and other obligations incurred by corporation as trustee  276

Division 4—Powers                                                                                                    278

198A..................... Powers of directors (replaceable rule—see section 135) 278

198B...................... Negotiable instruments (replaceable rule—see section 135) 278

198C...................... Managing director (replaceable rule—see section 135).. 278

198D..................... Delegation....................................................................... 278

198E...................... Single director/shareholder proprietary companies......... 279

198F...................... Right of access to company books.................................. 280

Division 5—Exercise of powers while company under external administration               282

198G..................... Exercise of powers while company under external administration           282

Part 2D.2—Restrictions on indemnities, insurance and termination payments   284

Division 1—Indemnities and insurance for officers and auditors     284

199A..................... Indemnification and exemption of officer or auditor....... 284

199B...................... Insurance premiums for certain liabilities of director, secretary, other officer or auditor          285

199C...................... Certain indemnities, exemptions, payments and agreements not authorised and certain documents void 286

Division 2—Termination payments                                                                   287

200........................ Interpreting this Division................................................ 287

200AA.................. Meaning of managerial or executive office..................... 287

200AB................... Meaning of benefit.......................................................... 288

200A..................... When benefit given in connection with retirement from an office or position          288

200B...................... Retirement benefits generally need membership approval 290

200C...................... Benefits on transfer of undertaking or property need membership approval            292

200D..................... Contravention to receive benefit without member approval 292

200E...................... Approval by members.................................................... 293

200F...................... Exempt benefits and benefits given in certain circumstances 295

200G..................... Genuine payments of pension and lump sum................. 297

200H..................... Benefits required by law................................................. 300

200J....................... Benefits to be held on trust and repaid............................ 300

Part 2D.3—Appointment, remuneration and cessation of appointment of directors      301

Division 1—Appointment of directors                                                             301

Subdivision A—General rules                                                                             301

201A..................... Minimum number of directors........................................ 301

201B...................... Who can be a director..................................................... 301

201D..................... Consent to act as director................................................ 301

201E...................... Special rules for the appointment of public company directors                302

201F...................... Special rules for the appointment of directors for single director/single shareholder proprietary companies........................................................................................ 302

201G..................... Company may appoint a director (replaceable rule—see section 135)     303

201H..................... Directors may appoint other directors (replaceable rule—see section 135)             303

201J....................... Appointment of managing directors (replaceable rule—see section 135)                304

201K...................... Alternate directors (replaceable rule—see section 135).. 304

201L...................... Signpost—ASIC to be notified of appointment.............. 305

201M..................... Effectiveness of acts by directors.................................... 305

Subdivision B—Limits on numbers of directors of public companies     305

201N..................... Application of Subdivision............................................. 305

201P...................... Directors must not set board limit unless proposed limit has been approved by general meeting             306

201Q..................... Requirements for explanatory statement to members...... 307

201R...................... Records of voting on board limit resolution if poll demanded  307

201S...................... Notice of resolution to be lodged.................................... 308

201T...................... Declaration by court of substantial compliance............... 308

201U..................... Consequences of setting board limit in breach of section 201P                308

Division 2—Remuneration of directors                                                          311

202A..................... Remuneration of directors (replaceable rule—see section 135)               311

202B...................... Members may obtain information about directors’ remuneration             311

202C...................... Special rule for single director/single shareholder proprietary companies                312

Division 3—Resignation, retirement or removal of directors            313

203A..................... Director may resign by giving written notice to company (replaceable rule—see section 135)               313

203B...................... Signpost to consequences of disqualification from managing corporations             313

203C...................... Removal by members—proprietary companies (replaceable rule—see section 135)               313

203D..................... Removal by members—public companies...................... 313

203E...................... Director cannot be removed by other directors—public companies         315

203F...................... Termination of appointment of managing director (replaceable rule—see section 135)           315

Part 2D.4—Appointment of secretaries                                                               316

204A..................... Minimum number of secretaries..................................... 316

204B...................... Who can be a secretary................................................... 316

204C...................... Consent to act as secretary.............................................. 316

204D..................... How a secretary is appointed.......................................... 317

204E...................... Effectiveness of acts by secretaries................................. 317

204F...................... Terms and conditions of office for secretaries (replaceable rule—see section 135) 317

204G..................... Signpost to consequences of disqualification from managing corporations             318

Part 2D.5—Public information about directors and secretaries           319

205A..................... Director, secretary or alternate director may notify ASIC of resignation or retirement             319

205B...................... Notice of name and address of directors and secretaries to ASIC            319

205C...................... Director and secretary must give information to company 321

205D..................... Address for officers........................................................ 321

205E...................... ASIC’s power to ask for information about person’s position as director or secretary            322

205F...................... Director must give information to company.................... 323

205G..................... Listed company—director to notify market operator of shareholdings etc.              323

Part 2D.6—Disqualification from managing corporations                      326

206A..................... Disqualified person not to manage corporations............. 326

206B...................... Automatic disqualification—convictions, bankruptcy and foreign court orders etc. 327

206BA................... Extension of period of automatic disqualification under section 206B     329

206C...................... Court power of disqualification—contravention of civil penalty provision              329

206D..................... Court power of disqualification—insolvency and non‑payment of debts 330

206E...................... Court power of disqualification—repeated contraventions of Act            332

206EAA................ Court power of disqualification—disqualification under a law of a foreign jurisdiction          333

206EA................... Disqualification under the Competition and Consumer Act 2010 etc.      334

206EB................... Disqualification under the ASIC Act.............................. 334

206F...................... ASIC’s power of disqualification................................... 334

206G..................... Court power to grant leave.............................................. 336

206GA.................. Involvement of ACCC—leave orders under section 206G 337

206H..................... Territorial application of this Part.................................... 337

206HA.................. Limited application of Part to registrable Australian bodies 338

206HB................... Part does not apply to Aboriginal and Torres Strait Islander corporations               338

Part 2D.7—Ban on hedging remuneration of key management personnel            339

206J....................... No hedging of remuneration of key management personnel 339

Part 2D.8—Remuneration recommendations in relation to key management personnel for disclosing entities                                                                                                                    341

206K...................... Board to approve remuneration consultants.................... 341

206L...................... Remuneration recommendation by remuneration consultants.. 342

206M..................... Declaration by remuneration consultant.......................... 342

Chapter 2E—Related party transactions                                         344

207........................ Purpose........................................................................... 344

Part 2E.1—Member approval needed for related party benefit          345

Division 1—Need for member approval                                                         345

208........................ Need for member approval for financial benefit.............. 345

209........................ Consequences of breach................................................. 346

Division 2—Exceptions to the requirement for member approval  347

210........................ Arm’s length terms......................................................... 347

211........................ Remuneration and reimbursement for officer or employee 347

212........................ Indemnities, exemptions, insurance premiums and payment for legal costs for officers          348

213........................ Small amounts given to related entity.............................. 350

214........................ Benefit to or by closely‑held subsidiary.......................... 350

215........................ Benefits to members that do not discriminate unfairly.... 351

216........................ Court order..................................................................... 351

Division 3—Procedure for obtaining member approval                       352

217........................ Resolution may specify matters by class or kind............ 352

218........................ Company must lodge material that will be put to members with ASIC    352

219........................ Requirements for explanatory statement to members...... 353

220........................ ASIC may comment on proposed resolution.................. 354

221........................ Requirements for notice of meeting................................ 354

222........................ Other material put to members........................................ 355

223........................ Proposed resolution cannot be varied............................. 355

224........................ Voting by or on behalf of related party interested in proposed resolution                355

225........................ Voting on the resolution................................................. 357

226........................ Notice of resolution to be lodged.................................... 358

227........................ Declaration by court of substantial compliance............... 358

Part 2E.2—Related parties and financial benefits                                         359

228........................ Related parties................................................................. 359

229........................ Giving a financial benefit................................................ 360

Part 2E.3—Interaction with other rules                                                               362

230........................ General duties still apply................................................. 362

Chapter 2F—Members’ rights and remedies                                363

231........................ Membership of a company............................................. 363

Part 2F.1—Oppressive conduct of affairs                                                          364

232........................ Grounds for Court order................................................. 364

233........................ Orders the Court can make............................................. 364

234........................ Who can apply for order................................................. 365

235........................ Requirement for person to lodge order........................... 366

Part 2F.1A—Proceedings on behalf of a company by members and others         367

236........................ Bringing, or intervening in, proceedings on behalf of a company            367

237........................ Applying for and granting leave..................................... 367

238........................ Substitution of another person for the person granted leave 369

239........................ Effect of ratification by members.................................... 370

240........................ Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave                370

241........................ General powers of the Court........................................... 370

242........................ Power of the Court to make costs orders........................ 371

Part 2F.2—Class rights                                                                                                   373

246B...................... Varying and cancelling class rights................................. 373

246C...................... Certain actions taken to vary rights etc............................ 374

246D..................... Variation, cancellation or modification without unanimous support of class            375

246E...................... Variation, cancellation or modification with unanimous support of class 376

246F...................... Company must lodge documents and resolutions with ASIC  377

246G..................... Member’s copies of documents and resolutions............. 378

Part 2F.3—Inspection of books                                                                                 379

247A..................... Order for inspection of books of company or registered managed investment scheme            379

247B...................... Ancillary orders.............................................................. 380

247C...................... Disclosure of information acquired in inspection............ 380

247D..................... Company or directors may allow member to inspect books (replaceable rule see section 135)               380

Part 2F.4—Proceedings against a company by members and others 381

247E...................... Shareholding does not prevent compensation claim........ 381

Chapter 2G—Meetings                                                                                        382

Part 2G.1—Directors’ meetings                                                                                382

Division 1—Resolutions and declarations without meetings               382

248A..................... Circulating resolutions of companies with more than 1 director (replaceable rule see section 135)        382

248B...................... Resolutions and declarations of 1 director proprietary companies            382

Division 2—Directors’ meetings                                                                         384

248C...................... Calling directors’ meetings (replaceable rule see section 135)                384

248D..................... Use of technology........................................................... 384

248E...................... Chairing directors’ meetings (replaceable rule see section 135)              384

248F...................... Quorum at directors’ meetings (replaceable rule see section 135)           384

248G..................... Passing of directors’ resolutions (replaceable rule see section 135)        385

Part 2G.2—Meetings of members of companies                                             386

Division 1—Resolutions without meetings                                                     386

249A..................... Circulating resolutions of proprietary companies with more than 1 member            386

249B...................... Resolutions of 1 member companies.............................. 387

Division 2—Who may call meetings of members                                       388

249C...................... Calling of meetings of members by a director (replaceable rule—see section 135) 388

249CA................... Calling of meetings of members of a listed company by a director          388

249D..................... Calling of general meeting by directors when requested by members      388

249E...................... Failure of directors to call general meeting...................... 389

249F...................... Calling of general meetings by members........................ 390

249G..................... Calling of meetings of members by the Court................. 390

Division 3—How to call meetings of members                                            391

249H..................... Amount of notice of meetings......................................... 391

249HA.................. Amount of notice of meetings of listed company............ 392

249J....................... Notice of meetings of members to members and directors 392

249K...................... Auditor entitled to notice and other communications...... 393

249L...................... Contents of notice of meetings of members.................... 394

249LA................... Notice of meeting not required to contain certain information  395

249M..................... Notice of adjourned meetings (replaceable rule—see section 135)          395

Division 4—Members’ rights to put resolutions etc. at general meetings            396

249N..................... Members’ resolutions..................................................... 396

249O..................... Company giving notice of members’ resolutions............ 396

249P...................... Members’ statements to be distributed............................ 397

Division 5—Holding meetings of members                                                   399

249Q..................... Purpose........................................................................... 399

249R...................... Time and place for meetings of members........................ 399

249S...................... Technology..................................................................... 399

249T...................... Quorum (replaceable rule—see section 135)................. 399

249U..................... Chairing meetings of members (replaceable rule—see section 135)        400

249V..................... Auditor’s right to be heard at general meetings............... 400

249W..................... Adjourned meetings........................................................ 401

Division 6—Proxies and body corporate representatives                    402

249X..................... Who can appoint a proxy (replaceable rule for proprietary companies and mandatory rule for public companies—see section 135).......................................... 402

249Y..................... Rights of proxies............................................................ 402

249Z...................... Company sending appointment forms or lists of proxies must send to all members                403

250A..................... Appointing a proxy......................................................... 403

250B...................... Proxy documents............................................................ 404

250BA................... Proxy documents—listed companies.............................. 405

250BB................... Proxy vote if appointment specifies way to vote............. 406

250BC................... Transfer of non‑chair proxy to chair in certain circumstances  407

250BD................... Proxy voting by key management personnel or closely related parties     408

250C...................... Validity of proxy vote..................................................... 410

250D..................... Body corporate representative......................................... 410

Division 7—Voting at meetings of members                                                412

250E...................... How many votes a member has (replaceable rule—see section 135)      412

250F...................... Jointly held shares (replaceable rule—see section 135). 412

250G..................... Objections to right to vote (replaceable rule—see section 135)               413

250H..................... Votes need not all be cast in the same way..................... 413

250J....................... How voting is carried out (replaceable rule—see section 135)                413

250K...................... Matters on which a poll may be demanded..................... 413

250L...................... When a poll is effectively demanded............................... 414

250M..................... When and how polls must be taken (replaceable rule—see section 135) 414

Division 8—AGMs of public companies                                                         415

250N..................... Public company must hold AGM................................... 415

250P...................... Extension of time for holding AGM............................... 415

250PAA................ Exemptions by ASIC—class orders relating to externally‑administered companies                416

250PAB................ Exemptions by ASIC—individual externally‑administered companies    416

250PA................... Written questions to auditor submitted by members of listed company before AGM              417

250R...................... Business of AGM.......................................................... 419

250RA................... Auditor required to attend listed company’s AGM......... 421

250S...................... Questions and comments by members on company management at AGM              422

250SA................... Listed company—remuneration report............................ 423

250T...................... Questions by members of auditors at AGM................... 423

Division 9—Meetings arising from concerns about remuneration reports         425

250U..................... Application..................................................................... 425

250V..................... Resolution to hold fresh elections for directors at special meeting to be put to vote at AGM   425

250W..................... Consequences of spill resolution being passed............... 426

250X..................... Ensuring there are at least 3 directors after spill meeting. 428

250Y..................... Term of office of director reappointed at spill meeting.... 429

Part 2G.3—Minutes and members’ access to minutes                                430

251A..................... Minutes........................................................................... 430

251AA.................. Disclosure of proxy votes—listed companies................. 431

251B...................... Members’ access to minutes........................................... 432

Part 2G.4—Meetings of members of registered managed investment schemes   433

Division 1—Who may call meetings of members                                       433

252A..................... Calling of meetings of members by responsible entity.... 433

252B...................... Calling of meetings of members by responsible entity when requested by members               433

252C...................... Failure of responsible entity to call meeting of the scheme’s members    434

252D..................... Calling of meetings of members by members................. 435

252E...................... Calling of meetings of members by the Court................. 436

Division 2—How to call meetings of members                                            437

252F...................... Amount of notice of meetings......................................... 437

252G..................... Notice of meetings of members to members, directors and auditors        437

252H..................... Auditors entitled to other communications...................... 438

252J....................... Contents of notice of meetings of members.................... 438

252K...................... Notice of adjourned meetings......................................... 439

Division 3—Members’ rights to put resolutions etc. at meetings of members   440

252L...................... Members’ resolutions..................................................... 440

252M..................... Responsible entity giving notice of members’ resolutions 441

252N..................... Members’ statements to be distributed............................ 441

Division 4—Holding meetings of members                                                   444

252P...................... Time and place for meetings of members........................ 444

252Q..................... Technology..................................................................... 444

252R...................... Quorum.......................................................................... 444

252S...................... Chairing meetings of members....................................... 445

252T...................... Auditors’ right to be heard at meetings of members....... 445

252U..................... Adjourned meetings........................................................ 446

Division 5—Proxies and body corporate representatives                    447

252V..................... Who can appoint a proxy................................................ 447

252W..................... Rights of proxies............................................................ 447

252X..................... Responsible entity sending appointment forms or lists of proxies must send to all members  448

252Y..................... Appointing a proxy......................................................... 448

252Z...................... Proxy documents............................................................ 450

253A..................... Validity of proxy vote..................................................... 451

253B...................... Body corporate representative......................................... 452

Division 6—Voting at meetings of members                                                453

253C...................... How many votes a member has...................................... 453

253D..................... Jointly held interests....................................................... 453

253E...................... Responsible entity and associates cannot vote if interested in resolution  453

253F...................... How to work out the value of an interest........................ 454

253G..................... Objections to a right to vote............................................ 454

253H..................... Votes need not all be cast in the same way..................... 454

253J....................... How voting is carried out............................................... 454

253K...................... Matters on which a poll may be demanded..................... 455

253L...................... When a poll is effectively demanded............................... 455

Division 7—Minutes and members’ access to minutes                            457

253M..................... Minutes........................................................................... 457

253N..................... Members’ access to minutes........................................... 457

Chapter 2H—Shares                                                                                              459

Part 2H.1—Issuing and converting shares                                                         459

254A..................... Power to issue bonus, partly‑paid, preference and redeemable preference shares    459

254B...................... Terms of issue................................................................ 460

254C...................... No par value shares........................................................ 461

254D..................... Pre‑emption for existing shareholders on issue of shares in proprietary company (replaceable rule—see section 135).................................................................... 461

254E...................... Court validation of issue................................................. 462

254F...................... Bearer shares and stock must not be issued.................... 462

254G..................... Conversion of shares...................................................... 463

254H..................... Resolution to convert shares into larger or smaller number 463

Part 2H.2—Redemption of redeemable preference shares                      465

254J....................... Redemption must be in accordance with terms of issue.. 465

254K...................... Other requirements about redemption............................. 465

254L...................... Consequences of contravening section 254J or 254K..... 465

Part 2H.3—Partly‑paid shares                                                                                   467

254M..................... Liability on partly‑paid shares......................................... 467

254N..................... Calls may be limited to when company is externally‑administered           467

254P...................... No liability companies—calls on shares......................... 468

254Q..................... No liability companies—forfeiture and sale of shares for failure to meet call           468

254R...................... No liability companies—redemption of forfeited shares. 471

Part 2H.4—Capitalisation of profits                                                                       472

254S...................... Capitalisation of profits................................................... 472

Part 2H.5—Dividends                                                                                                      473

254SA................... Companies limited by guarantee not to pay dividends.... 473

254T...................... Circumstances in which a dividend may be paid............. 473

254U..................... Other provisions about paying dividends (replaceable rule—see section 135)        473

254V..................... When does the company incur a debt?............................ 474

254W..................... Dividend rights............................................................... 474

Part 2H.6—Notice requirements                                                                               476

254X..................... Notice to ASIC of share issue........................................ 476

254Y..................... Notice to ASIC of share cancellation.............................. 477

Chapter 2J—Transactions affecting share capital                 478

Part 2J.1—Share capital reductions and share buy‑backs                       478

256A..................... Purpose........................................................................... 478

Division 1—Reductions in share capital not otherwise authorised by law           479

256B...................... Company may make reduction not otherwise authorised 479

256C...................... Shareholder approval...................................................... 480

256D..................... Consequences of failing to comply with section 256B... 481

256E...................... Signposts to other relevant provisions............................ 482

Division 2—Share buy‑backs                                                                                483

257A..................... The company’s power to buy back its own shares......... 483

257B...................... Buy‑back procedure—general........................................ 483

257C...................... Buy‑back procedure—shareholder approval if the 10/12 limit exceeded  486

257D..................... Buy‑back procedure—special shareholder approval for selective buy‑back             487

257E...................... Buy‑back procedure—lodgment of offer documents with ASIC             488

257F...................... Notice of intended buy‑back........................................... 488

257G..................... Buy‑back procedure—disclosure of relevant information when offer made            489

257H..................... Acceptance of offer and transfer of shares to the company 489

257J....................... Signposts to other relevant provisions............................ 489

Division 3—Other share capital reductions                                                 492

258A..................... Unlimited companies...................................................... 492

258B...................... Right to occupy or use real property............................... 492

258C...................... Brokerage or commission............................................... 492

258D..................... Cancellation of forfeited shares....................................... 492

258E...................... Other share cancellations................................................ 493

258F...................... Reductions because of lost capital................................... 493

Part 2J.2—Self‑acquisition and control of shares                                          494

259A..................... Directly acquiring own shares........................................ 494

259B...................... Taking security over own shares or shares in holding company              494

259C...................... Issuing or transferring shares to controlled entity........... 495

259D..................... Company controlling entity that holds shares in it.......... 496

259E...................... When a company controls an entity................................ 498

259F...................... Consequences of failing to comply with section 259A or 259B              498

Part 2J.3—Financial assistance                                                                                 500

260A..................... Financial assistance by a company for acquiring shares in the company or a holding company              500

260B...................... Shareholder approval...................................................... 501

260C...................... Exempted financial assistance......................................... 502

260D..................... Consequences of failing to comply with section 260A... 504

Part 2J.4—Interaction with general directors’ duties                                  505

260E...................... General duties still apply................................................. 505


An Act to make provision in relation to corporations and financial products and services, and for other purposes

Chapter 1Introductory

Part 1.1Preliminary

  

1  Short title

                   This Act may be cited as the Corporations Act 2001.

2  Commencement

                   This Act commences on a day to be fixed by Proclamation.

3  Constitutional basis for this Act

             (1)  The operation of this Act in the referring States is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and

                     (b)  the legislative powers that the Commonwealth Parliament has in respect of matters to which this Act relates because those matters are referred to it by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution.

Note:          The State referrals fully supplement the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.

             (2)  The operation of this Act in the Northern Territory and the Capital Territory is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of those Territories; and

                     (b)  the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution.

Despite subsection 22(3) of the Acts Interpretation Act 1901, this Act as applying in those territories is a law of the Commonwealth.

             (3)  The operation of this Act outside Australia is based on:

                     (a)  the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

                     (b)  the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution; and

                     (c)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of those Territories.

             (4)  The operation of this Act in a State that is not a referring State is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and

                     (b)  the legislative powers that the Commonwealth Parliament has in respect of matters to which this Act relates because those matters are referred to it by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution.

4  Referring States

Reference of matters by State Parliament to Commonwealth Parliament

             (1)  A State is a referring State if the Parliament of the State has referred the matters covered by subsections (4) and (5) to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:

                     (a)  if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and

                     (b)  if and to the extent to which the matters are included in the legislative powers of the Parliament of the State.

This subsection has effect subject to subsections (6) and (7).

             (2)  A State is a referring State even if the State reference Act includes a provision to the effect that nothing in the State reference Act is intended to enable the making of laws pursuant to the amendment reference with the sole or main underlying purpose or object of regulating industrial relations matters even if, but for that provision in the State reference Act, the law would be a law with respect to a matter referred to the Parliament of the Commonwealth by the amendment reference.

             (3)  A State is a referring State even if a law of the State provides that the reference to the Commonwealth Parliament of either or both of the matters covered by subsections (4) and (5) is to terminate in particular circumstances.

Reference covering initial Corporations Act and ASIC Act

             (4)  This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions in the initial Corporations Act and the initial ASIC Act.

Reference covering amendments of this Act and ASIC Act

             (5)  This subsection covers the matters of the formation of corporations, corporate regulation and the regulation of financial products and services to the extent of the making of laws with respect to those matters by making express amendments of this Act or the ASIC Act.

Effect of termination of reference

             (6)  A State ceases to be a referring State if the State’s initial reference terminates.

             (7)  A State ceases to be a referring State if:

                     (a)  the State’s amendment reference terminates; and

                     (b)  subsection (8) does not apply to the termination.

             (8)  A State does not cease to be a referring State because of the termination of its amendment reference if:

                     (a)  the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

                     (b)  the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and

                     (c)  that State’s amendment reference, and the amendment reference of every other State, terminates on the same day.

Definitions

             (9)  In this section:

amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (5).

express amendment of this Act or the ASIC Act means the direct amendment of the text of this Act or the ASIC Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by Commonwealth Acts, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act or the ASIC Act.

initial ASIC Act means the ASIC Act as originally enacted.

initial Corporations Act means this Act as originally enacted.

initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4).

referred provisions means:

                     (a)  the initial Corporations Act; and

                     (b)  the initial ASIC Act;

to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

State reference Act for a State is the law under which the initial reference and the amendment reference are given.

5  General territorial application of Act

Geographical coverage of “this jurisdiction”

             (1)  Section 9 defines this jurisdiction as the area that includes:

                     (a)  each referring State (including its coastal sea); and

                     (b)  the Capital Territory (including the coastal sea of the Jervis Bay Territory); and

                     (c)  the Northern Territory (including its coastal sea); and

                     (d)  also, for the purposes of the application of a provision of Chapter 7 or an associated provision (see subsection (10))—any external Territory in which the provision applies because of subsection (9) (but only to the extent provided for in that subsection).

             (2)  Throughout this Act, this jurisdiction therefore consists of:

                     (a)  either:

                              (i)  the whole of Australia (if all the States are referring States); or

                             (ii)  Australia (other than any State that is not a referring State) if one or more States are not referring States; and

                     (b)  also, when used in or in relation to a provision of Chapter 7 or an associated provision (see subsection (10))—any external Territory in which the provision applies because of subsection (9) (but only to the extent provided for in that subsection).

Operation in this jurisdiction

             (3)  Each provision of this Act applies in this jurisdiction.

Operation outside this jurisdiction

             (4)  Subject to subsection (8), each provision of this Act also applies, according to its tenor, in relation to acts and omissions outside this jurisdiction.

Residence, place of formation etc.

             (7)  Each provision of this Act applies according to its tenor to:

                     (a)  natural persons whether:

                              (i)  resident in this jurisdiction or not; and

                             (ii)  resident in Australia or not; and

                            (iii)  Australian citizens or not; and

                     (b)  all bodies corporate and unincorporated bodies whether:

                              (i)  formed or carrying on business in this jurisdiction or not; and

                             (ii)  formed or carrying on business in Australia or not.

Note:          Paragraph (b)—many of the provisions in this Act apply only in relation to companies (that is, to companies that are registered under this Act).

Operation in non‑referring States

             (8)  This Act does not apply to an act or omission in a State that is not a referring State to the extent to which that application would be beyond the legislative powers of the Parliament (including powers it has under paragraphs 51(xxxvii) and (xxxix) of the Constitution).

Expanded application of provisions of Chapter 7 and associated provisions

             (9)  The regulations may provide that, in specified circumstances, a specified external Territory is included in this jurisdiction for the purposes of a specified provision of Chapter 7 (the applicable provision). If the regulations do so:

                     (a)  the applicable provision applies in that external Territory in those circumstances; and

                     (b)  the associated provisions (see subsection (10)) in relation to the applicable provision apply in that external Territory in relation to the applicable provision as so applying.

Meaning of associated provisions

           (10)  For the purposes of this section, the associated provisions in relation to a provision of Chapter 7 are:

                     (a)  the provisions of Chapters 1, 9 (including the provisions of Division 2 of Part 9.4 that create offences and of Part 9.4B that allow for pecuniary penalty orders) and 10 as they apply or have effect in relation to, or for the purposes of, the provision; and

                     (b)  any regulations or other instruments (including any that create offences or allow for pecuniary penalty orders) made under this Act for the purposes of any of the provisions covered by paragraph (a); and

                     (c)  if regulations made for the purposes of subsection (9) have been made in relation to the provision—any other provisions of this Act, or any regulations or other instruments made under this Act (including any that create offences or allow for pecuniary penalty orders), specified in those regulations.

5A  Application to the Crown

             (1)  To avoid doubt, a reference in this section to the Crown in a particular right includes a reference to an instrumentality or agency (whether a body corporate or not) of the Crown in that right.

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

             (3)  Chapters 6, 6A, 6B, 6C and 6D:

                     (a)  bind the Crown in right of the Commonwealth; and

                     (b)  do not bind the Crown in right of any State, of the Capital Territory, of the Northern Territory or of Norfolk Island.

             (4)  A provision of Chapter 5D, 6CA or 7 only binds the Crown in a particular capacity in circumstances (if any) specified in the regulations.

             (5)  Nothing in this Act makes the Crown in any right liable to a pecuniary penalty or to be prosecuted for an offence.

5B  ASIC has general administration of this Act

                   Subject to the ASIC Act, ASIC has the general administration of this Act.

5C  Application of the Acts Interpretation Act 1901

             (1)  Until the date of commencement of section 4 of the Legislative Instruments (Transitional and Consequential Amendments) Act 2003 (the Legislative Instruments commencement day), the Acts Interpretation Act 1901 as in force on 1 November 2000 applies to this Act.

             (2)  On and after the Legislative Instruments commencement day, the Acts Interpretation Act 1901 as in force on that day applies to this Act.

             (3)  Amendments of the Acts Interpretation Act 1901 made after the Legislative Instruments commencement day do not apply to this Act.

Part 1.1AInteraction between Corporations legislation and State and Territory laws

  

5D  Coverage of Part

             (1)  This Part applies only to laws of a State or Territory that is in this jurisdiction.

             (2)  This Part applies only to the following Corporations legislation:

                     (a)  this Act (including the regulations made under this Act); and

                     (b)  Part 3 of the ASIC Act; and

                     (c)  regulations made under the ASIC Act for the purposes of Part 3 of that Act.

Note:          This Part does not apply in relation to the trustee company provisions: see section 601RAE.

             (3)  This Part does not apply to Part 3 of the ASIC Act, or regulations made under that Act for the purposes of Part 3 of that Act, to the extent to which they operate in relation to a contravention of Division 2 of Part 2 of that Act.

5E  Concurrent operation intended

             (1)  The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

             (2)  Without limiting subsection (1), the Corporations legislation is not intended to exclude or limit the concurrent operation of a law of a State or Territory that:

                     (a)  imposes additional obligations or liabilities (whether criminal or civil) on:

                              (i)  a director or other officer of a company or other corporation; or

                             (ii)  a company or other body; or

                     (b)  confers additional powers on:

                              (i)  a director or other officer of a company or other corporation; or

                             (ii)  a company or other body; or

                     (c)  provides for the formation of a body corporate; or

                     (d)  imposes additional limits on the interests a person may hold or acquire in a company or other body; or

                     (e)  prevents a person from:

                              (i)  being a director of; or

                             (ii)  being involved in the management or control of;

                            a company or other body; or

                      (f)  requires a company:

                              (i)  to have a constitution; or

                             (ii)  to have particular rules in its constitution.

Note:          Paragraph (a)—this includes imposing additional reporting obligations on a company or other body.

             (3)  Without limiting subsection (2), a reference in that subsection to a law of a State or Territory imposing obligations or liabilities, or conferring powers, includes a reference to a law of a State or Territory imposing obligations or liabilities, or conferring powers, by reference to the State or Territory in which a company is taken to be registered.

             (4)  This section does not apply to the law of the State or Territory if there is a direct inconsistency between the Corporations legislation and that law.

Note:          Section 5G prevents direct inconsistencies arising in some cases by limiting the operation of the Corporations legislation.

             (5)  If:

                     (a)  an act or omission of a person is both an offence against the Corporations legislation and an offence under the law of a State or Territory; and

                     (b)  the person is convicted of either of those offences;

the person is not liable to be convicted of the other of those offences.

5F  Corporations legislation does not apply to matters declared by State or Territory law to be an excluded matter

             (1)  Subsection (2) applies if a provision of a law of a State or Territory declares a matter to be an excluded matter for the purposes of this section in relation to:

                     (a)  the whole of the Corporations legislation; or

                     (b)  a specified provision of the Corporations legislation; or

                     (c)  the Corporations legislation other than a specified provision; or

                     (d)  the Corporations legislation otherwise than to a specified extent.

             (2)  By force of this subsection:

                     (a)  none of the provisions of the Corporations legislation (other than this section) applies in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(a) applies; and

                     (b)  the specified provision of the Corporations legislation does not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(b) applies; and

                     (c)  the provisions of the Corporations legislation (other than this section and the specified provisions) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(c) applies; and

                     (d)  the provisions of the Corporations legislation (other than this section and otherwise than to the specified extent) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(d) applies.

             (3)  Subsection (2) does not apply to the declaration to the extent to which the regulations provide that that subsection does not apply to that declaration.

             (4)  By force of this subsection, if:

                     (a)  the Corporations Law, ASC Law or ASIC Law of a State or Territory; or

                     (b)  a provision of that Law;

did not apply to a matter immediately before this Act commenced because a provision of a law of the State or Territory provided that that Law, or that provision, did not apply to the matter, the Corporations legislation, or the provision of the Corporations legislation that corresponds to that provision of that Law, does not apply in the State or Territory to the matter until that law of the State or Territory is omitted or repealed.

             (5)  Subsection (4) does not apply to the application of the provisions of the Corporations legislation to the matter to the extent to which the regulations provide that that subsection does not apply to the matter.

             (6)  In this section:

matter includes act, omission, body, person or thing.

5G  Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws

Section overrides other provisions of the Corporations legislation

             (1)  This section has effect despite anything else in the Corporations legislation.

Section does not deal with provisions capable of concurrent operation

             (2)  This section does not apply to a provision of a law of a State or Territory that is capable of concurrent operation with the Corporations legislation.

Note:          This kind of provision is dealt with by section 5E.

When this section applies to a provision of a State or Territory law

             (3)  This section applies to the interaction between:

                     (a)  a provision of a law of a State or Territory (the State provision); and

                     (b)  a provision of the Corporations legislation (the Commonwealth provision);

only if the State provision meets the conditions set out in the following table:

 

Conditions to be met before section applies

[operative]

Item

Kind of provision

Conditions to be met

1

a pre‑commencement (commenced) provision

(a) the State provision operated, immediately before this Act commenced, despite the provision of:

(i)   the Corporations Law of the State or Territory (as in force at that time); or

(ii)  the ASC or ASIC Law of the State or Territory (as in force at that time);

      that corresponds to the Commonwealth provision; and

(b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by:

(i)   regulations made under this Act; or

(ii)  a law of the State or Territory.

2

a pre‑commencement (enacted) provision

(a) the State provision would have operated, immediately before this Act commenced, despite the provision of:

(i)   the Corporations Law of the State or Territory (as in force at that time); or

(ii)  the ASC or ASIC Law of the State or Territory (as in force at that time);

      that corresponds to the Commonwealth provision if the State provision had commenced before the commencement of this Act; and

(b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by:

(i)   regulations made under this Act; or

(ii)  a law of the State or Territory.

3

a post‑commencement provision

the State provision is declared by a law of the State or Territory to be a Corporations legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision)

4

a provision that is materially amended on or after this Act commenced if the amendment was enacted before this Act commenced

(a) the State provision as amended would have operated, immediately before this Act commenced, despite the provision of:

(i)   the Corporations Law of the State or Territory (as in force at that time); or

(ii)  the ASC or ASIC Law of the State or Territory (as in force at that time);

      that corresponds to the Commonwealth provision if the amendment had commenced before the commencement of this Act; and

(b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by:

(i)   regulations made under this Act; or

(ii)  a law of the State or Territory.

5

a provision that is materially amended on or after this Act commenced if the amendment is enacted on or after this Act commenced

the State provision as amended is declared by a law of the State or Territory to be a Corporations legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision)

Note 1:       Item 1—subsection (12) tells you when a provision is a pre‑commencement (commenced) provision.

Note 2:       Item 1 paragraph (a)—For example, a State or Territory provision enacted after the commencement of the Corporations Law might not have operated despite the Corporations Law if it was not expressly provided that the provision was to operate despite a specified provision, or despite any provision, of the Corporations Law (see, for example, section 5 of the Corporations (New South Wales) Act 1990).

Note 3:       Item 2—subsection (13) tells you when a provision is a pre‑commencement (enacted) provision.

Note 4:       Item 3—subsection (14) tells you when a provision is a post‑commencement provision.

Note 5:       Subsections (15) to (17) tell you when a provision is materially amended after commencement.

State and Territory laws specifically authorising or requiring act or thing to be done

             (4)  A provision of the Corporations legislation does not:

                     (a)  prohibit the doing of an act; or

                     (b)  impose a liability (whether civil or criminal) for doing an act;

if a provision of a law of a State or Territory specifically authorises or requires the doing of that act.

Instructions given to directors under State and Territory laws

             (5)  If a provision of a law of a State or Territory specifically:

                     (a)  authorises a person to give instructions to the directors or other officers of a company or body; or

                     (b)  requires the directors of a company or body to:

                              (i)  comply with instructions given by a person; or

                             (ii)  have regard to matters communicated to the company or body by a person; or

                     (c)  provides that a company or body is subject to the control or direction of a person;

a provision of the Corporations legislation does not:

                     (d)  prevent the person from giving an instruction to the directors or exercising control or direction over the company or body; or

                     (e)  without limiting subsection (4):

                              (i)  prohibit a director from complying with the instruction or direction; or

                             (ii)  impose a liability (whether civil or criminal) on a director for complying with the instruction or direction.

The person is not taken to be a director of a company or body for the purposes of the Corporations legislation merely because the directors of the company or body are accustomed to act in accordance with the person’s instructions.

Use of names authorised by State and Territory laws

             (6)  The provisions of Part 2B.6 and Part 5B.3 of this Act do not:

                     (a)  prohibit a company or other body from using a name if the use of the name is expressly provided for, or authorised by, a provision of a law of a State or Territory; or

                     (b)  require a company or other body to use a word as part of its name if the company or body is expressly authorised not to use that word by a provision of a law of a State or Territory.

Meetings held in accordance with requirements of State and Territory laws

             (7)  The provisions of Chapter 2G of this Act do not apply to the calling or conduct of a meeting of a company to the extent to which the meeting is called or conducted in accordance with a provision of a law of a State or Territory. Any resolutions passed at the meeting are as valid as if the meeting had been called and conducted in accordance with this Act.

External administration under State and Territory laws

             (8)  The provisions of Chapter 5 of this Act do not apply to a scheme of arrangement, receivership, winding up or other external administration of a company to the extent to which the scheme, receivership, winding up or administration is carried out in accordance with a provision of a law of a State or Territory.

State and Territory laws dealing with company constitutions

             (9)  If a provision of a law of a State or Territory provides that a provision is included, or taken to be included, in a company’s constitution, the provision is included in the company’s constitution even though the procedures and other requirements of this Act are not complied with in relation to the provision.

           (10)  If a provision of a law of a State or Territory provides that additional requirements must be met for an alteration of a company’s constitution to take effect, the alteration does not take effect unless those requirements are met.

Other cases

           (11)  A provision of the Corporations legislation does not operate in a State or Territory to the extent necessary to ensure that no inconsistency arises between:

                     (a)  the provision of the Corporations legislation; and

                     (b)  a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with the provision of the Corporations legislation.

Note 1:       A provision of the State or Territory law is not covered by this subsection if one of the earlier subsections in this section applies to the provision: if one of those subsections applies there would be no potential inconsistency to be dealt with by this subsection.

Note 2:       The operation of the provision of the State or Territory law will be supported by section 5E to the extent to which it can operate concurrently with the provision of the Corporations legislation.

Pre‑commencement (commenced) provision

           (12)  A provision of a law of a State or Territory is a pre‑commencement (commenced) provision if it:

                     (a)  is enacted, and comes into force, before the commencement of this Act; and

                     (b)  is not a provision that has been materially amended after commencement (see subsections (15) to (17)).

Pre‑commencement (enacted) provision

           (13)  A provision of a law of a State or Territory is a pre‑commencement (enacted) provision if it:

                     (a)  is enacted before, but comes into force on or after, the commencement of this Act; and

                     (b)  is not a provision that has been materially amended after commencement (see subsections (15) to (17)).

Post‑commencement provision

           (14)  A provision of a law of a State or Territory is a post‑commencement provision if it:

                     (a)  is enacted, and comes into force, on or after the commencement of this Act; and

                     (b)  is not a provision that has been materially amended after commencement (see subsections (15) to (17)).

Provision materially amended after commencement

           (15)  A provision of a law of a State or Territory is materially amended after commencement if:

                     (a)  an amendment of the provision commences on or after the commencement of this Act; and

                     (b)  neither subsection (16) nor subsection (17) applies to the amendment.

           (16)  A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if the amendment merely:

                     (a)  changes:

                              (i)  a reference to the Corporations Law or the ASC or ASIC Law, or the Corporations Law or the ASC or ASIC Law of a State or Territory, to a reference to the Corporations Act or the ASIC Act; or

                             (ii)  a reference to a provision of the Corporations Law or the ASC or ASIC Law, or the Corporations Law or ASC or ASIC Law of a State or Territory, to a reference to a provision of the Corporations Act or the ASIC Act; or

                            (iii)  a penalty for a contravention of a provision of a law of a State or Territory; or

                            (iv)  a reference to a particular person or body to a reference to another person or body; or

                     (b)  adds a condition that must be met before a right is conferred, an obligation imposed or a power conferred; or

                     (c)  adds criteria to be taken into account before a power is exercised; or

                     (d)  amends the provision in way declared by the regulations to not constitute a material amendment for the purposes of this subsection.

           (17)  A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if:

                     (a)  the provision as amended would be inconsistent with a provision of the Corporations legislation but for this section; and

                     (b)  the amendment would not materially reduce the range of persons, acts and circumstances to which the provision of the Corporations legislation applies if this section applied to the provision of the State or Territory law as amended.

5H  Registration of body as company on basis of State or Territory law

             (1)  A body is taken to be registered under this Act as a company of a particular type under section 118 if a law of a State or Territory in this jurisdiction:

                     (a)  provides that the body is a deemed registration company for the purposes of this section; and

                     (b)  specifies:

                              (i)  the day on which the body is to be taken to be registered (the registration day) or the manner in which that day is to be fixed; and

                             (ii)  the type of company the body is to be registered as under this Act;

                            (iii)  the company’s proposed name (unless the ACN is to be used in its name);

and subsections (2) and (3) are satisfied.

             (2)  A notice setting out the following details must be lodged before the registration day:

                     (a)  the name and address of each person who is to be a member on registration;

                     (b)  the present given and family name, all former given and family names and the date and place of birth of each person who is to be a director on registration;

                     (c)  the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a company secretary;

                     (d)  the address of each person who is to be a director or company secretary on registration;

                     (e)  the address of the company’s proposed registered office;

                      (f)  for a public company—the proposed opening hours of its registered office (if they are not the standard opening hours);

                     (g)  the address of the company’s proposed principal place of business (if it is not the address of the proposed registered office);

                     (h)  for a company limited by shares or an unlimited company—the following:

                              (i)  the number and class of shares each member agrees in writing to take up;

                             (ii)  the amount (if any) each member agrees in writing to pay for each share;

                            (iii)  if that amount is not to be paid in full on registration—the amount (if any) each member agrees in writing to be unpaid on each share;

                      (i)  for a public company that is limited by shares or is an unlimited company, if shares will be issued for non‑cash consideration—the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application;

                      (j)  for a company limited by guarantee—the proposed amount of the guarantee that each member agrees to in writing.

             (3)  If the company:

                     (a)  is to be a public company; and

                     (b)  is to have a constitution on registration;

a copy of the constitution must be lodged before the registration day.

             (4)  On the registration day, the body is taken:

                     (a)  to be registered as a company under this Act; and

                     (b)  to be registered in the State or Territory referred to in subsection (1).

             (5)  The regulations may modify the operation of this Act to facilitate the registration of the company.

             (6)  Without limiting subsection (5), the regulations may make provision in relation to:

                     (a)  the share capital of the company on registration; and

                     (b)  the issue of a certificate of registration on the basis of the company’s registration.

5I  Regulations may modify operation of the Corporations legislation to deal with interaction between that legislation and State and Territory laws

             (1)  The regulations may modify the operation of the Corporations legislation so that:

                     (a)  provisions of the Corporations legislation do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or

                     (b)  no inconsistency arises between the operation of a provision of the Corporations legislation and the operation of a provision of a State or Territory law specified in the regulations.

             (2)  Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of the Corporations legislation:

                     (a)  does not apply to:

                              (i)  a person specified in the regulations; or

                             (ii)  a body specified in the regulations; or

                            (iii)  circumstances specified in the regulations; or

                            (iv)  a person or body specified in the regulations in the circumstances specified in the regulations; or

                     (b)  does not prohibit an act to the extent to which the prohibition would otherwise give rise to an inconsistency with the State or Territory law; or

                     (c)  does not require a person to do an act to the extent to which the requirement would otherwise give rise to an inconsistency with the State or Territory law; or

                     (d)  does not authorise a person to do an act to the extent to which the conferral of that authority on the person would otherwise give rise to an inconsistency with the State or Territory law; or

                     (e)  does not impose an obligation on a person to the extent to which complying with that obligation would require the person to not comply with an obligation imposed on the person under the State or Territory law; or

                      (f)  authorises a person to do something for the purposes of the Corporations legislation that the person:

                              (i)  is authorised to do under the State or Territory law; and

                             (ii)  would not otherwise be authorised to do under the Corporations legislation; or

                     (g)  will be taken to be satisfied if the State or Territory law is satisfied.

             (3)  In this section:

matter includes act, omission, body, person or thing.

Part 1.2Interpretation

Division 1General

6  Effect of this Part

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

             (2)  This Part applies for the purposes of:

                     (a)  Part 5.7; and

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

                     (c)  Part 9.2;

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

             (4)  Where, because of Part 11.2, provisions of this Act, as in force at a particular time, continue to apply:

                     (a)  in relation to someone or something; or

                     (b)  for particular purposes;

then, for the purposes of those provisions as so applying:

                     (c)  this Part as in force at that time continues to have effect; and

                     (d)  this Part as in force at a later time does not have effect.

7  Location of other interpretation provisions

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

             (2)  However, interpretation provisions relevant only to Chapter 7 are to be found at the beginning of that Chapter.

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

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

9  Dictionary

                   Unless the contrary intention appears:

2‑part simple corporate bonds prospectus has the meaning given by section 713B.

AASB means the Australian Accounting Standards Board.

ABN (short for “Australian Business Number”) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

Aboriginal and Torres Strait Islander corporation means a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

accounting standard means:

                     (a)  an instrument in force under section 334; or

                     (b)  a provision of such an instrument as it so has effect.

ACN (short for “Australian Company Number”) is the number given by ASIC to a company on registration (see sections 118 and 601BD).

acquire, in relation to financial products, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

act includes thing.

administration, in relation to a company, has the meaning given by section 435C.

administrator:

                     (a)  in relation to a body corporate but not in relation to a deed of company arrangement:

                              (i)  means an administrator of the body or entity appointed under Part 5.3A; and

                            (iii)  if 2 or more persons are appointed under that Part as administrators of the body or entity—has a meaning affected by paragraph 451A(2)(b); or

                     (b)  in relation to a deed of company arrangement:

                              (i)  means an administrator of the deed appointed under Part 5.3A; and

                             (ii)  if 2 or more persons are appointed under that Part as administrators of the deed—has a meaning affected by paragraph 451B(2)(b).

admit to quotation: financial products are admitted to quotation on a market if the market operator has given unconditional permission for quotation of the financial products on the market.

affairs, in relation to a body corporate, has, in the provisions referred to in section 53, a meaning affected by that section.

affidavit includes affirmation.

agency means an agency, authority, body or person.

aggregated turnover has the same meaning as in the Income Tax Assessment Act 1997.

AGM means an annual general meeting of a company that section 250N requires to be held.

agreement, in Chapter 6 or 7, means a relevant agreement.

amount includes a nil amount and zero.

ancillary offence, in relation to another offence, means an offence against:

                     (a)  section 5, 6, 7 or 7A of the Crimes Act 1914; or

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

being an offence that is related to that other offence.

annual transparency report has the meaning given by subsection 332A(2).

approved stock exchange has the same meaning as in the Income Tax Assessment Act 1997.

APRA means the Australian Prudential Regulation Authority.

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

ARBN (short for “Australian Registered Body Number”) is the number given by ASIC to a registrable body on registration under Part 5B.2.

arrangement, in Part 5.1, includes a reorganisation of the share capital of a body corporate by the consolidation of shares of different classes, by the division of shares into shares of different classes, or by both of those methods.

ARSN (short for “Australian Registered Scheme Number”) is the number given by ASIC to a registered scheme on registration (see section 601EB).

ASIC means the Australian Securities and Investments Commission.

ASIC Act means the Australian Securities and Investments Commission Act 2001 and includes the regulations made under that Act.

ASIC database means so much of the national companies database kept by ASIC as consists of:

                     (a)  some or all of a register kept by ASIC under this Act; or

                     (b)  information set out in a document lodged under this Act;

but does not include ASIC’s document imaging system.

assets, in relation to a financial services licensee, means all the licensee’s assets (whether or not used in connection with the licensee’s Australian financial services licence).

associate has the meaning given by sections 10 to 17.

associated entity has the meaning given by section 50AAA.

AUASB means the Auditing and Assurance Standards Board.

audit means an audit conducted for the purposes of this Act and includes a review of a financial report for a financial year or a half‑year conducted for the purposes of this Act.

audit activity: see the definition of engage in audit activity.

audit company means a company that consents to be appointed, or is appointed, as auditor of a company or registered scheme.

audit‑critical employee, in relation to a company, or the responsible entity for a registered scheme, that is the audited body for an audit, means a person who:

                     (a)  is an employee of the company or of the responsible entity for the registered scheme; and

                     (b)  is able, because of the position in which the person is employed, to exercise significant influence over:

                              (i)  a material aspect of the contents of the financial report being audited; or

                             (ii)  the conduct or efficacy of the audit.

audited body, in relation to an audit of a company or registered scheme, means the company or registered scheme in relation to which the audit is, or is to be, conducted.

audit firm means a firm that consents to be appointed, or is appointed, as auditor of a company or registered scheme.

auditing standard means:

                     (a)  a standard in force under section 336; or

                     (b)  a provision of such a standard as it so has effect.

auditor independence requirements of this Act means the requirements of Divisions 3, 4 and 5 of Part 2M.4.

Australia, when used in a geographical sense, does not include an external Territory.

Note:          Paragraph 17(a) of the Acts Interpretation Act 1901 would otherwise provide that Australia included the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

Australian ADI means:

                     (a)  an ADI (authorised deposit‑taking institution) within the meaning of the Banking Act 1959; and

                     (b)  a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

Australian bank means an Australian ADI that is permitted under section 66 of the Banking Act 1959 to assume or use:

                     (a)  the word bank, banker or banking; or

                     (b)  any other word (whether or not in English) that is of like import to a word referred to in paragraph (a).

Australian carbon credit unit has the same meaning as in the Carbon Credits (Carbon Farming Initiative) Act 2011.

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

Australian CS facility licence, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

Australian derivative trade repository licence, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

Australian financial services licence, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

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

Australian market licence, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

Australian register of a foreign company means a branch register of members kept under section 601CM.

authorised audit company means a company registered under Part 9.2A.

bank or banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit‑taking institution) for the purposes of the Banking Act 1959.

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

base prospectus has the meaning given by subsection 713C(1).

base salary has the meaning specified in regulations made for the purposes of this definition.

begin, in relation to a winding up, has the meaning given by Division 1A of Part 5.6.

benefit:

                     (a)  means any benefit, whether by way of payment of cash or otherwise; and

                     (b)  when used in Division 2 of Part 2D.2 (sections 200 to 200J)—has the meaning given by section 200AB.

bid class of securities for a takeover bid is the class of securities to which the securities being bid for belong.

bidder for a takeover bid means the person who makes or proposes to make, or each of the people who make or propose to make, the offers under the bid (whether personally or by an agent or nominee).

Note:          A person who announces a bid on behalf of another person is not making the bid, the other person is making the bid.

bidder’s statement means a bidder’s statement under sections 636 and 637 as supplemented.

bid period:

                     (a)  for an off‑market bid—starts when the bidder’s statement is given to the target and ends:

                              (i)  1 month later if no offers are made under the bid; or

                             (ii)  at the end of the offer period; and

                     (b)  for a market bid—starts when the bid is announced to the relevant financial market and ends at the end of the offer period.

Board, when used in Part 9.2, means the Companies Auditors Disciplinary Board.

board limit means a limit described in section 201N.

board limit resolution means a resolution described in paragraph 201P(1)(a).

body means a body corporate or an unincorporated body and includes, for example, a society or association.

body corporate:

                     (a)  includes a body corporate that is being wound up or has been dissolved; and

                     (b)  in this Chapter (except section 66A) and section 206E includes an unincorporated registrable body.

body regulated by APRA has the meaning given by subsection 3(2) of the Australian Prudential Regulation Authority Act 1998.

books includes:

                     (a)  a register; and

                     (b)  any other record of information; and

                     (c)  financial reports or financial records, however compiled, recorded or stored; and

                     (d)  a document;

but does not include an index or recording made under Subdivision D of Division 5 of Part 6.5.

borrower, in relation to a debenture, means the body that is or will be liable to repay money under the debenture.

business affairs, in relation to an entity, has a meaning affected by sections 53AA, 53AB, 53AC and 53AD.

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

Business Names Register means the Register established and maintained under section 22 of the Business Names Registration Act 2011.

buy‑back by a company means the acquisition by the company of shares in itself.

buy‑back agreement by a company means an agreement by the company to buy back its own shares (whether the agreement is conditional or not).

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

carry on has a meaning affected by Division 3.

cash management trust interest means an interest that:

                     (a)  is an interest in a registered scheme; and

                     (b)  relates to an undertaking of the kind commonly known as a cash management trust.

cause includes procure.

certified means:

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

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

Chapter 5 body corporate means a body corporate:

                     (a)  that is being wound up; or

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

                     (c)  that is under administration; or

                     (d)  that has executed a deed of company arrangement that has not yet terminated; or

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

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

chargeable matter has the same meaning as in the Corporations (Fees) Act 2001.

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

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

circulating security interest has the meaning given by section 51C.

civil matter means a matter other than a criminal matter.

civil penalty order means any of the following:

                     (a)  a declaration of contravention under section 1317E;

                     (b)  a pecuniary penalty order under section 1317G;

                   (ba)  a refund order under section 1317GA;

                     (c)  a compensation order under section 961M, 1317H, 1317HA or 1317HB;

                     (d)  an order under section 206C disqualifying a person from managing corporations.

civil penalty provision has the meaning given in subsection 1317E(1).

class has:

                     (b)  in relation to shares or interests in a managed investment scheme—a meaning affected by section 57; and

                     (c)  when used in relation to securities for the purposes of Chapter 6, 6A or 6C—a meaning affected by subsection 605(2).

clearing and settlement facility, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

close associate of a director means:

                     (a)  a relative of the director; or

                     (b)  a relative of a spouse of the director.

closely related party of a member of the key management personnel for an entity means:

                     (a)  a spouse or child of the member; or

                     (b)  a child of the member’s spouse; or

                     (c)  a dependant of the member or of the member’s spouse; or

                     (d)  anyone else who is one of the member’s family and may be expected to influence the member, or be influenced by the member, in the member’s dealings with the entity; or

                     (e)  a company the member controls; or

                      (f)  a person prescribed by the regulations for the purposes of this paragraph.

coastal sea:

                     (a)  in relation to Australia—means:

                              (i)  the territorial sea of Australia; and

                             (ii)  the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;

                            and includes the airspace over, and the sea‑bed and subsoil beneath, any such sea; and

                     (b)  in relation to a State or Territory—means so much of the coastal sea of Australia as is within the area described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 under the heading that refers to that State or Territory.

commence, in relation to a winding up, has the meaning given by Division 1A of Part 5.6.

commencement, in relation to an accounting standard, means:

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

                     (b)  in the case of an accounting standard as varied by a particular provision of an instrument made under section 334—the time when that provision took effect.

Commission delegate has the same meaning as in the ASIC Act.

Commonwealth authority means an authority or other body (whether incorporated or not) that is established or continued in existence by or under an Act.

company means a company registered under this Act and:

                     (c)  in Parts 5.7B and 5.8 (except sections 595 and 596), includes a Part 5.7 body; and

                     (d)  in Part 5B.1, includes an unincorporated registrable body.

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

company limited by shares means a company formed on the principle of having the liability of its members limited to the amount (if any) unpaid on the shares respectively held by them.

compliance period for an infringement notice has the meaning given by section 1317DAA.

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

connected entity, in relation to a corporation, means:

                     (a)  a body corporate that is, or has been, related to the corporation; or

                     (b)  an entity that is, or has been, connected (as defined by section 64B) with the corporation.

consolidated entity means a company, registered managed investment scheme or disclosing entity together with all the entities it is required by the accounting standards to include in consolidated financial statements.

constitution means (depending on the context):

                     (a)  a company’s constitution, which (where relevant) includes rules and consequential amendments that are part of the company’s constitution because of the Life Insurance Act 1995; or

                     (b)  a managed investment scheme’s constitution; or

                     (c)  in relation to any other kind of body:

                              (i)  the body’s charter or memorandum; or

                             (ii)  any instrument or law (other than this Act) constituting, or defining the constitution of, the body or governing the activities of the body or its members.

Note:          The Life Insurance Act 1995 has rules about how benefit fund rules become part of a company’s constitution. They override this Act. See Subdivision 2 of Division 4 of Part 2A of that Act.

continuous disclosure notice means:

                     (a)  a document used to notify a market operator of information relating to a body under provisions of the market’s listing rules referred to in subsection 674(1); or

                     (b)  a document under section 675 lodged in relation to the body.

continuously quoted securities are securities that:

                     (a)  are in a class of securities that were quoted ED securities at all times in the 3 months before the date of the prospectus or Product Disclosure Statement; and

                     (b)  are securities of an entity in relation to which the following subparagraphs are satisfied during the shorter of the period during which the class of securities were quoted, and the period of 12 months before the date of the prospectus or Product Disclosure Statement:

                              (i)  no exemption under section 111AS or 111AT, or modification under section 111AV, covered the entity, or any person as director or auditor of the entity;

                             (ii)  no exemption under paragraph 741(1)(a), or declaration under paragraph 741(1)(b), relating to a provision that is a disclosing entity provision for the purposes of Division 4 of Part 1.2A covered the entity, or any person as director or auditor of the entity;

                            (iii)  no order under section 340 or 341 covered the entity, or any person as director or auditor of the entity;

and, for these purposes, securities are not in different classes merely because of a temporary difference in the dividend, or distribution rights, attaching to the securities or because different amounts have been paid up on the securities.

contribution plan means a plan in respect of which the following conditions are met:

                     (a)  regular deductions are made from the wages or salary of an employee or director (the contributor) to acquire financial products that are offered for issue or sale to the contributor under an eligible employee share scheme;

                     (b)  the deductions are authorised by the contributor in a form which is included in, or accompanies, the disclosure document or the Product Disclosure Statement for the scheme;

                     (c)  before acquiring the financial products under the scheme, the deductions are held on trust in an account with an Australian ADI that is kept solely for that purpose;

                     (d)  the contributor may elect to discontinue the deductions at any time;

                     (e)  if the contributor so elects, the amount of the deductions standing, at that time, to the credit of the account for the contributor, and any interest on that amount, is repaid to the contributor;

                      (f)  the scheme does not involve the offer to the contributor of a loan or similar financial assistance for the purpose of, or in connection with, the acquisition of the financial products that are offered under the scheme.

contributory means:

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

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

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

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

                     (b)  in relation to a Part 5.7 body:

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

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

                     (c)  in relation to a no liability company—subject to subsection 254M(2), a member of the company.

control has the meaning given by section 50AA.

control day, in relation to a controller of property of a corporation, means:

                     (a)  unless paragraph (b) applies:

                              (i)  in the case of a receiver, or receiver and manager, of that property—the day when the receiver, or receiver and manager, was appointed; or

                             (ii)  in the case of any other person who is in possession, or has control, of that property for the purpose of enforcing a security interest—the day when the person entered into possession, or took control, of property of the corporation for the purpose of enforcing that security interest; or

                     (b)  if the controller became a controller of property of the corporation:

                              (i)  to act with an existing controller of such property; or

                             (ii)  in place of a controller of such property who has died or ceased to be a controller of such property;

                            the day that is, because of any other application or applications of this definition, the control day in relation to the controller referred to in subparagraph (i) or (ii).

controller, in relation to property of a corporation, means:

                     (a)  a receiver, or receiver and manager, of that property; or

                     (b)  anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a security interest;

and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers).

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

convertible securities: securities are convertible into another class of securities if the holder may have the other class of securities issued to them by the exercise of rights attached to those securities. An option may be a convertible security even if it is non‑renounceable.

corporation has the meaning given by section 57A.

corporation/scheme civil penalty provision has the meaning given by section 1317DA.

Corporations legislation means:

                     (a)  this Act; and

                     (b)  the ASIC Act; and

                     (c)  rules of court made by the Federal Court, the Supreme Court of the Capital Territory, or the Family Court, because of a provision of this Act; and

                     (d)  rules of court applied by the Supreme Court, or a State Family Court, of a State, or by the Supreme Court of the Northern Territory when exercising jurisdiction conferred by Division 1 of Part 9.6A (including jurisdiction conferred by virtue of any previous application or applications of this paragraph).

court has the meaning given by section 58AA.

Court has the meaning given by section 58AA.

court of summary jurisdiction means any justice or justices of the peace or other magistrate sitting as a court for the making of summary orders or the summary punishment of offences:

                     (a)  under a law of the Commonwealth or of a State or Territory; or

                     (b)  by virtue of his or her commission or their commissions.

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

current market bid price for securities covered by a market bid is the price specified in the announcement of the bid as increased or decreased during the offer period.

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

date of a takeover bid is:

                     (a)  for an off‑market bid—the date on which offers are first made under the bid; or

                     (b)  for a market bid—the date on which the bid is announced to the relevant financial market.

deal:

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

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

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

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

dealing, in relation to financial products, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

debenture of a body means a chose in action that includes an undertaking by the body to repay as a debt money deposited with or lent to the body. The chose in action may (but need not) include a security interest over property of the body to secure repayment of the money. However, a debenture does not include:

                     (a)  an undertaking to repay money deposited with or lent to the body by a person if:

                              (i)  the person deposits or lends the money in the ordinary course of a business carried on by the person; and

                             (ii)  the body receives the money in the ordinary course of carrying on a business that neither comprises nor forms part of a business of borrowing money and providing finance; or

                     (b)  an undertaking by an Australian ADI to repay money deposited with it, or lent to it, in the ordinary course of its banking business; or

Note:       This paragraph has an extended meaning in relation to Chapter 8 (see subsection 1200A(2)).

                     (c)  an undertaking to pay money under:

                              (i)  a cheque; or

                             (ii)  an order for the payment of money; or

                            (iii)  a bill of exchange; or

                     (e)  an undertaking by a body corporate to pay money to a related body corporate; or

                      (f)  an undertaking to repay money that is prescribed by the regulations.

For the purposes of this definition, if a chose in action that includes an undertaking by a body to pay money as a debt is offered as consideration for the acquisition of securities under an off‑market takeover bid, or is issued under a compromise or arrangement under Part 5.1, the undertaking is taken to be an undertaking to repay as a debt money deposited with or lent to the body.

decision period, for a secured party in relation to a security interest in property (including PPSA retention of title property) of a company under administration, means the period beginning on the day when:

                     (a)  if notice of the appointment of the administrator must be given to the secured party under subsection 450A(3)—such notice is so given; or

                     (b)  otherwise—the administration begins;

and ending at the end of the thirteenth business day after that day.

declaration of indemnities, in relation to an administrator of a company under administration, means a written declaration:

                     (a)  stating whether the administrator has, to any extent, been indemnified (otherwise than under section 443D), in relation to that administration, for:

                              (i)  any debts for which the administrator is, or may become, liable under Subdivision A of Division 9 of Part 5.3A; or

                             (ii)  any debts for which the administrator is, or may become, liable under a remittance provision as defined in section 443BA; or

                            (iii)  the remuneration to which he or she is entitled under section 60‑5 of Schedule 2 (external administrator’s remuneration); and

                     (b)  if so, stating:

                              (i)  the identity of each indemnifier; and

                             (ii)  the extent and nature of each indemnity.

declaration of relevant relationships has the meaning given by section 60.

deductible gift recipient has the same meaning as in the Income Tax Assessment Act 1997.

deed includes a document having the effect of a deed.

deed of company arrangement means a deed of company arrangement executed under Part 5.3A or such a deed as varied and in force from time to time.

defeating condition for a takeover bid means a condition that:

                     (a)  will, in circumstances referred to in the condition, result in the rescission of, or entitle the bidder to rescind, a takeover contract; or

                     (b)  prevents a binding takeover contract from resulting from an acceptance of the offer unless or until the condition is fulfilled.

defect, in relation to a statutory demand, includes:

                     (a)  an irregularity; and

                     (b)  a misstatement of an amount or total; and

                     (c)  a misdescription of a debt or other matter; and

                     (d)  a misdescription of a person or entity.

deregistered means:

                     (a)  in relation to a company—deregistered under Chapter 5A; and

                     (b)  in relation to any other body corporate—deregistered in a way that results in the body corporate ceasing to exist.

derivative, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

derivative trade repository rules, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

derivative transaction rules, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

director of a company or other body means:

                     (a)  a person who:

                              (i)  is appointed to the position of a director; or

                             (ii)  is appointed to the position of an alternate director and is acting in that capacity;

                            regardless of the name that is given to their position; and

                     (b)  unless the contrary intention appears, a person who is not validly appointed as a director if:

                              (i)  they act in the position of a director; or

                             (ii)  the directors of the company or body are accustomed to act in accordance with the person’s instructions or wishes.

Subparagraph (b)(ii) does not apply merely because the directors act on advice given by the person in the proper performance of functions attaching to the person’s professional capacity, or the person’s business relationship with the directors or the company or body.

Note:          Paragraph (b)—Contrary intention—Examples of provisions for which a person referred to in paragraph (b) would not be included in the term “director” are:

·       section 249C (power to call meetings of a company’s members)

·       subsection 251A(3) (signing minutes of meetings)

·       section 205B (notice to ASIC of change of address).

disclosing entity has the meaning given by section 111AC.

disclosure document for an offer of securities means:

                     (a)  a prospectus for the offer; or

                     (b)  a profile statement for the offer; or

                     (c)  an offer information statement for the offer.

dispose has a meaning affected by the following paragraphs:

                     (a)  when used in relation to financial products in a provision outside Chapter 7, otherwise than in a situation to which paragraph (b) applies, dispose has the same meaning as it has in Chapter 7;

                     (b)  for the purposes of Chapter 6, a person who has a relevant interest in securities disposes of the securities if, and only if, they cease to have a relevant interest in the securities.

domestic corporation means a corporation that is incorporated or formed in Australia or an external Territory.

ED securities has the meaning given by section 111AD.

eligible applicant, in relation to a corporation, means:

                     (a)  ASIC; or

                     (b)  a liquidator or provisional liquidator of the corporation; or

                     (c)  an administrator of the corporation; or

                     (d)  an administrator of a deed of company arrangement executed by the corporation; or

                     (e)  a person authorised in writing by ASIC to make:

                              (i)  applications under the Division of Part 5.9 in which the expression occurs; or

                             (ii)  such an application in relation to the corporation.

eligible employee creditor, in relation to a company, means a creditor whose debt or claim would, in a winding up of the company, be payable in priority to other unsecured debts and claims in accordance with paragraph 556(1)(e), (g) or (h) or section 560 or 561.

eligible employee share scheme means an employee share scheme for a body corporate in respect of which the following conditions are met:

                     (a)  the scheme is offered only to employees or directors mentioned in paragraph (a) of the definition of employee share scheme;

                     (b)  the financial products that are offered under the scheme are offered:

                              (i)  under a disclosure document or Product Disclosure Statement; or

                             (ii)  without disclosure under Part 6D.2 in accordance with subsection 708(12);

                     (c)  the financial products which may be acquired under the scheme are the following:

                              (i)  fully paid ordinary shares;

                             (ii)  options, offered for no more than nominal consideration, for the issue or transfer of fully paid ordinary shares;

                            (iii)  units in fully paid ordinary shares.

eligible international emissions unit has the same meaning as in the Australian National Registry of Emissions Units Act 2011.

eligible money market dealer means a body corporate in respect of which a declaration is in force under section 65.

emoluments means the amount or value of any money, consideration or benefit given, directly or indirectly, to a director of a body corporate in connection with the management of affairs of the body or of any holding company or subsidiary of the body, whether as a director or otherwise, but does not include amounts in payment or reimbursement of out‑of‑pocket expenses incurred for the benefit of the body.

employee share scheme for a company means a scheme under which shares (or units in shares or options to acquire unissued shares) in the company or a holding company may be acquired:

                     (a)  by, or for the benefit of:

                              (i)  employees of the company, or of a related body corporate; or

                             (ii)  directors of the company, or of a related body corporate, who hold a salaried employment or office in the company or in a related body corporate; or

                     (b)  by a corporation all of whose members are:

                              (i)  employees of the company, or of a related body corporate; or

                             (ii)  directors of the company, or of a related body corporate, who hold a salaried employment or office in the company or in a related body corporate.

employee share scheme buy‑back means a buy‑back under a scheme that:

                     (a)  has as its purpose the acquisition of shares in a company by, or on behalf of:

                              (i)  employees of the company, or of a related body corporate; or

                             (ii)  directors of the company, or a related body corporate, who hold a salaried employment or office in the company or in a related body corporate; and

                     (b)  has been approved by the company in general meeting.

enforce, in relation to a security interest in property of a company under administration, includes:

                     (a)  appoint a receiver of property of the company under a power contained in an instrument relating to the security interest; or

                     (b)  obtain an order for the appointment of a receiver of such property for the purpose of enforcing the security interest; or

                     (c)  enter into possession, or assume control, of such property for that purpose; or

                     (d)  appoint a person so to enter into possession or assume control (whether as agent for the secured party or for the company); or

                     (e)  exercise, in relation to property including PPSA retention of title property, as the secured party or as a receiver or person so appointed, a right, power or remedy existing because of the security interest, arising:

                              (i)  under an agreement or instrument relating to the security interest; or

                             (ii)  in the case of a PPSA security interest—under an agreement or instrument relating to a transaction or dealing giving rise to the security interest; or

                            (iii)  under a written or unwritten law; or

                            (iv)  in any other way.

enforcement process, in relation to property, means:

                     (a)  execution against that property; or

                     (b)  any other enforcement process in relation to that property that involves a court or a sheriff.

engage in audit activity: an individual auditor, audit firm or audit company engages in audit activity in relation to an audited body for an audit if the individual auditor, audit firm or audit company:

                     (a)  consents to be appointed as auditor of the audited body for a financial year; or

                     (b)  acts as the auditor of the audited body for a financial year; or

                     (c)  prepares a report in relation to the audited body that is required by this Act to be prepared by:

                              (i)  a registered company auditor; or

                             (ii)  an auditor of the audited body in relation to a financial year or half‑year.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

enter into: a person who:

                     (a)  enters into, or becomes a party to, a relevant agreement in relation to voting shares or other securities; or

                     (b)  exercises an option to have voting shares or other securities issued or granted;

is taken to enter into a transaction in relation to the shares or securities.

entitlements of an employee of a company has the meaning given by subsections 596AA(2) and (3).

entity: for the purposes of Chapter 2E an entity is any of the following:

                     (a)  a body corporate;

                     (b)  a partnership;

                     (c)  an unincorporated body;

                     (d)  an individual;

                     (e)  for a trust that has only 1 trustee—the trustee;

                      (f)  for a trust that has more than 1 trustee—the trustees together.

Otherwise, entity has the meaning given by section 64A.

equal access scheme has the meaning given by subsections 257B(2) and (3).

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

ESS interest has the same meaning as in the Income Tax Assessment Act 1997.

event includes any happening, circumstance or state of affairs.

examinable affairs, in relation to a corporation means:

                     (a)  the promotion, formation, management, administration or winding up of the corporation; or

                     (b)  any other affairs of the corporation (including anything that is included in the corporation’s affairs because of section 53); or

                     (c)  the business affairs of a connected entity of the corporation, in so far as they are, or appear to be, relevant to the corporation or to anything that is included in the corporation’s examinable affairs because of paragraph (a) or (b).

examinable assets and liabilities, in relation to an entity, means all of the following:

                     (a)  the entity’s property and assets:

                              (i)  whether present or future; and

                             (ii)  whether held alone or jointly with any other person or persons; and

                            (iii)  whether or not held as agent, bailee or trustee;

                     (b)  the entity’s liabilities:

                              (i)  whether present or future; and

                             (ii)  whether actual or contingent; and

                            (iii)  whether owed alone or jointly with any other person or persons; and

                            (iv)  whether or not owed as trustee.

examinable operations, in relation to an entity, means all of the following:

                     (a)  the entity’s business, trading, transactions and dealings:

                              (i)  whether alone or jointly with any other entity or entities; and

                             (ii)  whether or not as agent, bailee or trustee;

                     (b)  the entity’s profits, income and receipts;

                     (c)  the entity’s losses, outgoings and expenditure.

excluded security means:

                     (a)  where:

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

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

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

                     (b)  an interest in a managed investment scheme constituted by a right to participate in a retirement village scheme.

exempt body has the meaning given by section 66A.

exempt foreign company means a foreign company of a kind referred to in subsection 601CK(8), whether or not Division 2 of Part 5B.2 applies to it.

exempt public authority means a body corporate that is incorporated within Australia or an external Territory and is:

                     (a)  a public authority; or

                     (b)  an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.

expert, in relation to a matter, means a person whose profession or reputation gives authority to a statement made by him or her in relation to that matter.

extend, in relation to a period:

                     (a)  includes further extend; and

                     (b)  has a meaning affected by section 70.

extract of particulars for a company or a registered scheme means a statement given by ASIC that contains either or both of the following:

                     (a)  some or all of the particulars in relation to the company or scheme that are recorded in the register or registers maintained by ASIC under subsection 1274(1);

                     (b)  a requirement to provide a particular under section 346B.

extraordinary resolution, in relation to a registered scheme, means a resolution:

                     (a)  of which notice as set out in paragraph 252J(c) has been given; and

                     (b)  that has been passed by at least 50% of the total votes that may be cast by members entitled to vote on the resolution (including members who are not present in person or by proxy).

Family Court means the Family Court of Australia.

Federal Court means the Federal Court of Australia.

financial benefit (when used in Chapter 2E) has a meaning that is affected by section 229.

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

financial market, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

financial product, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

financial records includes:

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

                     (b)  documents of prime entry; and

                     (c)  working papers and other documents needed to explain:

                              (i)  the methods by which financial statements are made up; and

                             (ii)  adjustments to be made in preparing financial statements.

financial report means an annual financial report or a half‑year financial report prepared under Chapter 2M.

Note:          Section 295 deals with the contents of annual financial reports and section 302 deals with the contents of half‑year financial reports.

financial reporting requirements for a financial report means the requirements imposed under:

                     (a)  section 296 or 297 if the financial report is an annual financial report; or

                     (b)  section 304 or 305 if the financial report is a half‑year financial report.

financial service, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

financial services business, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

financial services civil penalty provision has the meaning given by section 1317DA.

financial services licensee, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

financial statements means annual financial statements under section 295 or half‑year financial statements under section 303.

financial year, when used in a provision outside Schedule 2, has the meaning given by section 323D.

find, in the case of a reference to a court finding a person guilty of an offence, has a meaning affected by section 73A.

firm, in relation to an administrator or liquidator, means:

                     (a)  if the administrator or liquidator is a partner or employee of a partnership (the partnership firm) that provides advice or other services in relation to Chapter 5 bodies corporate—the partnership firm; or

                     (b)  if the administrator or liquidator is an officer or employee of a body corporate (the body corporate firm) that provides advice or other services in relation to Chapter 5 bodies corporate—the body corporate firm.

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

for, in relation to a fee or tax, includes in respect of.

foreign company means:

                     (a)  a body corporate that is incorporated in an external Territory, or outside Australia and the external Territories, and is not:

                              (i)  a corporation sole; or

                             (ii)  an exempt public authority; or

                     (b)  an unincorporated body that:

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

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

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

foreign holder of securities means a holder of the securities whose address, as shown in the register in which details of their holding is recorded, is a place outside Australia and the external Territories.

foreign law has the same meaning as in the Income Tax Assessment Act 1997.

franchise means an arrangement under which a person earns profits or income by exploiting a right, conferred by the owner of the right, to use a trade mark or design or other intellectual property or the goodwill attached to it in connection with the supply of goods or services. An arrangement is not a franchise if the person engages the owner of the right, or an associate of the owner, to exploit the right on the person’s behalf.

Full Court, in relation to a Supreme Court of a State or Territory, includes any court of the State or Territory to which appeals lie from a single judge of that Supreme Court.

fully paid share means a share on which no amount remains unpaid.

function includes a duty.

Gazette notice means a notice published in the Gazette.

general law means the principles and rules of the common law and equity.

group executives for a consolidated entity means:

                     (a)  the directors of the companies or bodies within the consolidated entity; and

                     (b)  the secretaries of the companies or bodies within the consolidated entity; and

                     (c)  the senior managers of any corporation within the consolidated entity; and

                     (d)  the partners, and senior managers, of any partnership within the consolidated entity; and

                     (e)  the trustees, and senior managers, of any trusts within the consolidated entity; and

                      (f)  the senior managers of any joint venture within the consolidated entity.

guarantor, in relation to a debenture, means a body that has guaranteed, or has agreed to guarantee, the repayment of any money deposited or lent to the borrower under the debenture.

guilty, in the case of a reference to a court finding a person guilty of an offence, has a meaning affected by section 73A.

half‑year has the meaning given by subsection 323D(5).

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

highest outside purchase price for a takeover bid is the highest amount paid or payable by the bidder for a security in the bid class under a purchase made outside the bid and during the bid period.

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

holding company, in relation to a body corporate, means a body corporate of which the first body corporate is a subsidiary.

immediate family member for a person means:

                     (a)  the person’s spouse; or

                     (b)  a person who is wholly or partly dependent on the person for financial support.

in Australia has the meaning given by section 102C.

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

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

incorporated in Australia, in relation to a body corporate, includes incorporated by or under a law of:

                     (a)  the Commonwealth; or

                     (b)  a State; or

                     (c)  an internal Territory.

incorporation:

                     (a)  of a company—means the company’s first registration under this Act; and

                     (b)  of any other incorporated body—means the body’s incorporation by or under a law (other than this Act).

individual auditor means an individual who consents to be appointed, or is appointed, as auditor of a company or registered scheme.

industrial instrument means:

                     (a)  a contract of employment; or

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

information includes complaint.

infringement notice has the meaning given by section 1317DAA.

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

Insolvency Practice Rules means the rules made by the Minister under section 105‑1 of Schedule 2.

insolvent has the meaning given by subsection 95A(2).

insolvent transaction has the meaning given by section 588FC.

insolvent under administration means:

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

                     (b)  a person who, under the law of an external Territory or the law of a foreign country, has the status of an undischarged bankrupt; or

                     (c)  a person any of whose property is subject to control under:

                              (i)  section 50 or Division 2 of Part X of the Bankruptcy Act 1966; or

                             (ii)  a corresponding provision of the law of an external Territory or the law of a foreign country; or

                     (d)  a person who has executed a personal insolvency agreement under:

                              (i)  Part X of the Bankruptcy Act 1966; or

                             (ii)  the corresponding provisions of the law of an external Territory or the law of a foreign country;

                            where the terms of the agreement have not been fully complied with; or

                     (e)  a person who is a party (as a debtor) to a debt agreement under:

                              (i)  Part IX of the Bankruptcy Act 1966; or

                             (ii)  the corresponding provisions of the law of an external Territory or the law of a foreign country.

interest in a managed investment scheme means a right to benefits produced by the scheme (whether the right is actual, prospective or contingent and whether it is enforceable or not).

investment in a company, disclosing entity or other body means:

                     (a)  a share in the company, disclosing entity or body; or

                     (b)  a debenture of the company, disclosing entity or body; or

                     (c)  a legal or equitable interest in:

                              (i)  a share in the company, disclosing entity or body; or

                             (ii)  a debenture of the company, disclosing entity or body; or

                     (d)  an option to acquire (whether by way of issue or transfer) an investment in the company, disclosing entity or body covered by paragraph (a), (b) or (c); or

                     (e)  an option to dispose of an investment in the company, disclosing entity or body covered by paragraph (a), (b) or (c); or

                      (f)  an interest a person holds under an arrangement that is a derivative if:

                              (i)  the consideration to be provided under the arrangement; or

                             (ii)  the value of the arrangement;

                            is ultimately determined, derived from or varies by reference to an investment in the company, disclosing entity or body covered by paragraph (a), (b), (c), (d) or (e).

To avoid doubt, the consideration to be provided under, or the value of, an arrangement in relation to an index is not ultimately determined, derived from or varies by reference to an investment in the company merely because the investment is taken into account in determining the value of the index.

investment in a registered scheme means:

                     (a)  an interest in the scheme; or

                     (b)  a legal or equitable interest in an interest in the scheme; or

                     (c)  an option to acquire (whether by way of issue or transfer) an investment in the scheme covered by paragraph (a) or (b); or

                     (d)  an option to dispose of an investment in the scheme covered by paragraph (a) or (b); or

                     (e)  an interest a person holds under an arrangement that is a derivative if:

                              (i)  the consideration to be provided under the arrangement; or

                             (ii)  the value of the arrangement;

                            is ultimately determined, derived from or varies by reference to an investment in the scheme covered by paragraph (a), (b), (c) or (d); or

                      (f)  an investment in the responsible entity of the scheme.

To avoid doubt, the consideration to be provided under, or the value of, an arrangement in relation to an index is taken not to be ultimately determined, derived from or vary by reference to an investment in the scheme merely because the investment is taken into account in determining the value of the index.

investment contract means any contract, scheme or arrangement that, in substance and irrespective of its form, involves the investment of money in or under such circumstances that the investor acquires or may acquire an interest in, or right in respect of, property, whether in this jurisdiction or elsewhere, that, under, or in accordance with, the terms of investment will, or may at the option of the investor, be used or employed in common with any other interest in, or right in respect of, property, whether in this jurisdiction or elsewhere, acquired in or under like circumstances.

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

issue includes:

                     (a)  in relation to interests in a managed investment scheme—make available; and

                     (b)  otherwise—circulate, distribute and disseminate.

Note:          When issue is used in Chapter 7 in relation to a financial product it has a meaning affected by section 761E.

Judge means a judge of the Court.

judgment means a judgment, decree or order, whether final or interlocutory.

key management personnel for an entity has the same meaning as in the accounting standards.

large proprietary company has the meaning given by subsection 45A(3).

law of a State or Territory means a law of, or in force in, the State or Territory.

Note:          This definition does not affect the meaning of law when used otherwise than in a phrase such as “law of a State or Territory”. Examples of such a use is in the phrase “any provision of any law” in section 100A and the phrase “law of the Commonwealth” in section 156.

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

lead auditor has the meaning given by section 324AF.

lease does not include a lease of goods that gives rise to a PPSA security interest in the goods.

Note:          An interest that arises under a lease of goods that in substance secures the payment or performance of an obligation, or that arises under a PPS lease within the meaning of the Personal Property Securities Act 2009, may be a PPSA security interest (see sections 12 and 13 of that Act and the definition of PPSA security interest in section 51 of this Act).

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

limited company means:

                     (a)  a company limited by shares; or

                     (b)  a company limited by guarantee; or

                     (c)  a company limited both by shares and guarantee;

but does not include a no liability company.

linked: the incurring of a debt and a contravention of section 596AB are linked if they are linked under subsection 596AB(4).

liquidator:

                     (a)  has a meaning affected by paragraph 530(b) (which deals with 2 or more persons appointed as liquidators); and

                     (b)  in Chapter 7, includes a provisional liquidator.

listed: a company, managed investment scheme or other body is listed if it is included in the official list of a prescribed financial market operated in this jurisdiction.

listed corporation means a body corporate that is included in an official list of a prescribed financial market.

listed disclosing entity has the meaning given by subsection 111AL(1).

listing market, in relation to a listed disclosing entity, has the meaning given by subsection 111AE(1) or (1A).

listing rules of a financial market, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

local agent, in relation to a foreign company, means a person who is a local agent of the foreign company by virtue of subsection 601CG(5).

lodge means lodge with ASIC in this jurisdiction.

lower court means a court of a State or Territory that is not a superior court.

machine‑copy, in relation to a document, means a copy made of the document by any machine in which, or process by which, an image of the contents of the document is reproduced.

managed investment product, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

managed investment scheme means:

                     (a)  a scheme that has the following features:

                              (i)  people contribute money or money’s worth as consideration to acquire rights (interests) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not);

                             (ii)  any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders);

                            (iii)  the members do not have day‑to‑day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or

                     (b)  a time‑sharing scheme;

but does not include the following:

                     (c)  a partnership that has more than 20 members but does not need to be incorporated or formed under an Australian law because of regulations made for the purposes of subsection 115(2);

Note:       This paragraph has an extended meaning in relation to Chapter 8 (see subsection 1200A(3)).

                     (d)  a body corporate (other than a body corporate that operates as a time sharing scheme);

                     (e)  a scheme in which all the members are bodies corporate that are related to each other and to the body corporate that promotes the scheme;

                      (f)  a franchise;

                     (g)  a statutory fund maintained under the Life Insurance Act 1995;

                     (h)  a regulated superannuation fund, an approved deposit fund, a pooled superannuation trust, or a public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993;

                      (i)  a scheme operated by an Australian ADI in the ordinary course of its banking business;

Note:       This paragraph has an extended meaning in relation to Chapter 8 (see subsection 1200A(3)).

                      (j)  the issue of debentures or convertible notes by a body corporate;

                     (k)  a barter scheme under which each participant may obtain goods or services from another participant for consideration that is wholly or substantially in kind rather than in cash;

                      (l)  a retirement village scheme operating within or outside Australia:

                              (i)  under which the participants, or a majority of them, are provided, or are to be provided, with residential accommodation within a retirement village (whether or not the entitlement of a participant to be provided with accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is, or is to be, provided); and

                             (ii)  which is not a time‑sharing scheme;

                    (m)  a scheme that is operated by a co‑operative company registered under Part VI of the Companies (Co‑operative) Act 1943 of Western Australia or under a previous law of Western Australia that corresponds to that Part;

                  (ma)  a contribution plan;

                     (n)  a scheme of a kind declared by the regulations not to be a managed investment scheme.

Note:          Paragraph (c)—A partnership with less than 20 members will usually not require registration because of paragraph 601ED(1)(a) and under section 115 a partnership with more than 20 members can only operate if covered by regulations made for the purposes of subsection 115(2).

manager has a meaning affected by section 90.

managerial or executive office has the meaning given by section 200AA.

managing controller, in relation to property of a corporation, means:

                     (a)  a receiver and manager of that property; or

                     (b)  any other controller of that property who has functions or powers in connection with managing the corporation;

and has a meaning affected by paragraph 434G(b) (which deals with 2 or more persons appointed as managing controllers).

marketable securities means debentures, stocks, shares or bonds of any Government, of any local government authority or of any body corporate, association or society, and includes any right or option in respect of shares in any body corporate and any interest in a managed investment scheme.

market bid means a takeover bid made under Chapter 6 as a market bid (see section 616).

market integrity rules, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

market traded option means an option declared by an operator of a prescribed financial market to be a market traded option.

member:

                     (a)  in relation to a managed investment scheme¾means a person who holds an interest in the scheme; or

                     (e)  in relation to a company—a person who is a member under section 231.

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

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

minimum holding buy‑back means a buy‑back of all of a holder’s shares in a listed corporation if the shares are less than a marketable parcel within the meaning of the rules of the relevant financial market.

mining purposes means any or all of the following purposes:

                     (a)  prospecting for ores, metals or minerals;

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

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

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

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

misconduct includes fraud, negligence, default, breach of trust and breach of duty.

modifications includes additions, omissions and substitutions.

money includes a payment order.

national newspaper means a daily newspaper that circulates generally in each State and each internal Territory.

NCSC means the National Companies and Securities Commission.

necessary transfer documents for the transfer of securities to a person means the documents that are sufficient to enable the person to become the holder of the securities.

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

negative solvency resolution means a resolution by the directors of a company that, in their opinion, there are not reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.

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

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

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

                     (c)  a letter of credit;

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

no liability company means a company that is registered as, or converts to, a no liability company under this Act.

Note 1:       A no liability company can be registered under section 118 or 601BD. A company can convert to a no liability company under Part 2B.7.

Note 2:       A no liability company must have solely mining purposes and have no contractual right to recover unpaid calls (see subsection 112(2)).

non‑audit services provider for an auditor conducting an audit means a person who:

                     (a)  is not a professional member of the audit team conducting the audit of the audited body; and

                     (b)  is either:

                              (i)  if the auditor is an individual auditor—an employee of the individual auditor (or of an entity acting for, or on behalf of, the individual auditor); or

                             (ii)  if the auditor is an audit firm—a member of the audit firm or senior manager of the audit firm (or of an entity acting for, or on behalf of, the audit firm); or

                            (iii)  if the auditor is an audit company—a director of the audit company or a senior manager of the audit company (or of an entity acting for, or on behalf of, the audit company); and

                     (c)  provides, or has provided, services (other than services related to the conduct of an audit) to the audited body.

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

notice includes a circular and an advertisement.

of, in relation to financial products, means, in the case of interests in a managed investment scheme, made available by.

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

offence based on a particular provision of this Act means, unless a contrary intention appears:

                     (a)  if that provision creates an offence—an offence against that provision, or an offence against section 1314 that relates to that provision; or

                     (b)  if section 1311 creates an offence relating to that provision—an offence against section 1311 or 1314 that relates to that provision.

offer information statement means an offer information statement that is lodged with ASIC.

offer of simple corporate bonds has the meaning given by section 713A.

offer‑specific prospectus, in relation to an offer of simple corporate bonds, has the meaning given by subsection 713D(1).

offer period for a takeover bid is the period for which offers under the bid remain open.

officer of a corporation means:

                     (a)  a director or secretary of the corporation; or

                     (b)  a person:

                              (i)  who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

                             (ii)  who has the capacity to affect significantly the corporation’s financial standing; or

                            (iii)  in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation); or

                     (c)  a receiver, or receiver and manager, of the property of the corporation; or

                     (d)  an administrator of the corporation; or

                     (e)  an administrator of a deed of company arrangement executed by the corporation; or

                      (f)  a liquidator of the corporation; or

                     (g)  a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

Note:          Section 201B contains rules about who is a director of a corporation.

officer of an entity that is neither an individual nor a corporation means:

                     (a)  a partner in the partnership if the entity is a partnership; or

                     (b)  an office holder of the unincorporated association if the entity is an unincorporated association; or

                     (c)  a person:

                              (i)  who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or

                             (ii)  who has the capacity to affect significantly the entity’s financial standing.

officer of the Commonwealth has the same meaning as in paragraph 75(v) of the Constitution.

off‑market bid means a takeover bid made under Chapter 6 as an off‑market bid (see section 616).

old Corporations Law, in relation to a State or Territory, has the same meaning as it has in Part 10.1.

old Division 11 of Part 11.2 transitionals means the following:

                     (a)  the provisions of Division 11 of Part 11.2 of the old Corporations Law of each State or Territory in this jurisdiction, to the extent they continue to have effect because of section 1408 of this Act; and

                     (b)  if regulations for the purposes of subsection 1408(3) deal with a matter or matters dealt with in those provisions—the regulations that so deal with the matter or matters.

old Division 12 of Part 11.2 transitionals means the following:

                     (a)  the provisions of Division 12 of Part 11.2 of the old Corporations Law of each State or Territory in this jurisdiction, to the extent they continue to have effect because of section 1408 of this Act; and

                     (b)  if regulations for the purposes of subsection 1408(3) deal with a matter or matters dealt with in those provisions—the regulations that so deal with the matter or matters.

on, in relation to a financial market, includes at or by means of.

on behalf of includes on the instructions of.

on‑market: a transaction of any kind is an on‑market transaction if it is effected on a prescribed financial market and is:

                     (a)  an on‑market transaction as defined in the rules governing the operation of the market; or

                     (b)  if those rules do not define on‑market transactions—effected in the ordinary course of trading on the market.

on‑market buy‑back means a buy‑back by a listed corporation on a prescribed financial market in the ordinary course of trading on that market.

operated in this jurisdiction, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

operating rules, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

outside this jurisdiction has a meaning affected by subsection 102B(2).

outstanding property, in relation to a body corporate that has been dissolved or deregistered, means outstanding property (other than unpaid capital, whether called or uncalled) that was vested in the body, to which it was entitled, or over which it had a disposing power, when it was dissolved or deregistered, but that neither the body nor its liquidator got in, realised on or otherwise disposed of or dealt with.

paid parental leave employer has the meaning given by subsection 600AA(2).

Panel means the Takeovers Panel.

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

Part 5.1 body means:

                     (a)  a company; or

                     (b)  a registrable body that is registered under Division 1 or 2 of Part 5B.2.

Part 5.7 body means:

                     (a)  a registrable body that is a registrable Australian body and:

                              (i)  is registered under Division 1 of Part 5B.2; or

                             (ii)  is not registered under that Division but carries on business in this jurisdiction and outside its place of origin; or

                     (b)  a registrable body that is a foreign company and:

                              (i)  is registered under Division 2 of Part 5B.2; or

                             (ii)  is not registered under that Division but carries on business in Australia; or

                     (c)  a partnership, association or other body (whether a body corporate or not) that consists of more than 5 members and that is not a registrable body;

but does not include an Aboriginal and Torres Strait Islander corporation.

Note:          The winding up of Aboriginal and Torres Strait Islander corporations is dealt with in Part 11‑5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

Part 10.1 transitionals means the provisions of Part 10.1 and of regulations for the purposes of those provisions.

participant, when used in a provision (the relevant provision) outside Chapter 7 in relation to a clearing and settlement facility or a financial market, has the same meaning as it has in Chapter 7 in relation to a clearing and settlement facility or a financial market, except that it does not include a reference to a recognised affiliate (within the meaning of that Chapter) in relation to such a facility or market unless regulations for the purposes of this definition provide that, in the relevant provision, it does include a recognised affiliate.

party, in relation to a transaction that has been completed, given effect to, or terminated, includes a person who was a party to the transaction.

payment (when used in Division 2 of Part 2D.2 (sections 200 to 200J) includes a payment by way of damages for breach of contract.

payment order means a cheque (including a cheque that a bank or other institution draws on itself), bank draft, money order or postal order.

person, when used in Division 2 of Part 2D.2 (sections 200 to 200J), includes a superannuation fund.

place of origin:

                     (a)  in relation to a body corporate at a particular time, means:

                              (i)  in the case of a body incorporated at that time in a State or Territory—that State or Territory; or

                             (ii)  otherwise—the place of the body’s incorporation at that time; or

                     (b)  in relation to an unincorporated body—the State or Territory, or other place, in which the body is formed.

play a significant role: a person plays a significant role in the audit of a company or a registered scheme for a financial year if:

                     (a)  the person is appointed as an individual auditor of the company or scheme for that financial year and:

                              (i)  acts as an auditor for the company or scheme for that financial year; or

                             (ii)  prepares an audit report for the company or the scheme in relation to a financial report of the company or scheme for that financial year or for a half‑year falling within that financial year; or

                     (b)  a firm or company is appointed as an auditor of the company or scheme for that financial year and the person:

                              (i)  is a registered company auditor; and

                             (ii)  acts, on behalf of the firm or company, as a lead auditor, or review auditor, in relation to an audit of the company or scheme for that financial year or for a half‑year falling within that financial year.

pooling determination means a determination under subsection 571(1).

pooling order means an order under subsection 579E(1).

positive solvency resolution means a resolution by the directors of a company that, in their opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.

possession has a meaning affected by section 86.

power includes an authority.

PPSA retention of title property (short for Personal Property Security Act retention of title property) has the meaning given by section 51F.

PPSA security interest (short for Personal Property Security Act security interest) has the meaning given by section 51.

premises includes:

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

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

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

prescribed derivative trade repository, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

prescribed financial market means a financial market that is prescribed by regulations made for the purposes of this definition.

printed includes type‑written, lithographed or reproduced by any mechanical means.

procure includes cause.

Product Disclosure Statement, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

Note:          For the effect of the lodgment of a Replacement Product Disclosure Statement, see section 1014J.

professional accounting body has the same meaning as in the ASIC Act.

professional employee of an individual auditor, audit firm or audit company means an employee of the auditor, firm or company who participates in the conduct of the audits on behalf of the auditor, firm or company and, in the course of doing so, exercises professional judgment in relation to the application of or compliance with:

                     (a)  accounting standards; or

                     (b)  auditing standards; or

                     (c)  the provisions of this Act dealing with financial reporting and the conduct of audits.

professional investor means a person in relation to whom one or more of the following paragraphs apply:

                     (a)  the person is a financial services licensee;

                     (b)  the person is a body regulated by APRA, other than a trustee of any of the following (within the meaning of the Superannuation Industry (Supervision) Act 1993):

                              (i)  a superannuation fund;

                             (ii)  an approved deposit fund;

                            (iii)  a pooled superannuation trust;

                            (iv)  a public sector superannuation scheme;

                     (c)  the person is a body registered under the Financial Corporations Act 1974;

                     (d)  the person is the trustee of:

                              (i)  a superannuation fund; or

                             (ii)  an approved deposit fund; or

                            (iii)  a pooled superannuation trust; or

                            (iv)  a public sector superannuation scheme;

                            within the meaning of the Superannuation Industry (Supervision) Act 1993 and the fund, trust or scheme has net assets of at least $10 million;

                     (e)  the person controls at least $10 million (including any amount held by an associate or under a trust that the person manages);

                      (f)  the person is a listed entity, or a related body corporate of a listed entity;

                     (g)  the person is an exempt public authority;

                     (h)  the person is a body corporate, or an unincorporated body, that:

                              (i)  carries on a business of investment in financial products, interests in land or other investments; and

                             (ii)  for those purposes, invests funds received (directly or indirectly) following an offer or invitation to the public, within the meaning of section 82, the terms of which provided for the funds subscribed to be invested for those purposes;

                      (i)  the person is a foreign entity that, if established or incorporated in Australia, would be covered by one of the preceding paragraphs.

professional member of an audit team has the meaning given by section 324AE.

profile statement means a profile statement that is lodged with ASIC.

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action, and:

                     (a)  in Part 5.3A (administration)—has a meaning affected by section 435B; and

                     (b)  in Part 5.4B (winding up in insolvency or by the Court)—has a meaning affected by section 465; and

                     (c)  in Part 5.5 (voluntary winding up)—has a meaning affected by section 489F; and

                     (d)  in Part 5.6 (winding up generally)—has a meaning affected by section 513AA; and

                     (e)  in Part 5.7B (recovering property or compensation for creditors of insolvent company)—has a meaning affected by section 588C; and

                      (f)  in Part 5.8 (offences relating to external administration)—has a meaning affected by subsection 589(5); and

                     (g)  in Part 5A.1 (deregistration, and transfer of registration, of companies)—has a meaning affected by section 601; and

                     (h)  in Part 5B.2 (registrable bodies)—has a meaning affected by section 601C; and

                      (i)  in Schedule 2 (the Insolvency Practice Schedule)—has a meaning affected by section 5‑26 of that Schedule.

Note:          A reference in this Act to the property of a corporation does not include a reference to any PPSA retention of title property of the corporation, unless provided otherwise expressly or by necessary implication (see section 51F). The sections mentioned in paragraphs (a) to (h) extend references to property of a corporation in Parts of this Act to PPSA retention of title property (or to certain PPSA retention of title property).

proportional takeover approval provisions, in relation to a company, means provisions of the kind referred to in subsection 648D(1) that are contained in, or that it is proposed to insert in, the constitution of the company.

proportional takeover bid means an off‑market bid for a specified proportion of the securities in the bid class (see paragraph 618(1)(b)).

proprietary company has the meaning given by subsection 45A(1).

prospectus means a prospectus that is lodged with ASIC.

prove includes establish in any way (for example, but without limitation, through the operation of a presumption for which this Act or a law of a State or Territory provides).

providing finance means:

                     (a)  lending money; or

                     (b)  giving guarantees or security for loans made by someone else; or

                     (c)  drawing, accepting, indorsing, negotiating or discounting a bill of exchange, cheque, payment order or promissory note so that someone can obtain funds.

provision of a law includes:

                     (a)  a subsection, section, Subdivision, Division, Part or Chapter of the law; and

                     (b)  a Schedule, or an item in a Schedule, to the law.

provisional liquidator has a meaning affected by paragraph 530AA(b) (which deals with 2 or more persons appointed as provisional liquidators).

public company means a company other than a proprietary company and:

                     (a)  in section 195 and Chapter 2E, includes a body corporate (other than a prescribed body corporate) that:

                              (i)  is incorporated in a State or an internal Territory, but not under this Act; and

                             (ii)  is included in the official list of a prescribed financial market; and

                     (b)  in Chapter 2E does not include a company that is not required to have “Limited” in its name because of section 150 or 151.

public document, in relation to a body corporate, has the meaning given by section 88A.

publish:

                     (a)  in relation to a notice—means, in Chapter 7, publish by any means, including in a newspaper or periodical, on the internet, by broadcasting or televising or in a cinematograph film; and

                     (b)  in any case—includes issue.

qualified accountant has the meaning given by section 88B.

qualified privilege has the meaning given by section 89.

quarter day means 31 March, 30 June, 30 September or 31 December.

quotation, in relation to financial products or in relation to a financial market, includes the displaying or providing, on a financial market, of information concerning:

                     (a)  if offers to dispose of, purchase or exchange the financial product at particular prices, or for particular consideration, are made or accepted on that financial market—those prices or that consideration; or

                     (b)  if offers or invitations are made on that financial market, being offers or invitations that are intended, or may reasonably be expected, to result in the making or acceptance of offers to dispose of, purchase or exchange the financial products at particular prices, or for particular consideration—those prices or that consideration; or

                     (c)  in any case—the price at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to dispose of, purchase or exchange the financial products.

quoted ED securities has the meaning given by section 111AM.

quoted security means a security that is quoted on a prescribed financial market.

receiver has a meaning affected by paragraph 434D(b) (which deals with 2 or more persons appointed as receivers).

receiver and manager has a meaning affected by section 90 and has a meaning affected by paragraph 434E(b) (which deals with 2 or more persons appointed as receivers and managers).

recognised offer has the meaning given by section 1200B.

redeemable preference share means a preference share in a body corporate that is, or at the body’s option is to be, liable to be redeemed.

referring State has the meaning given by section 4.

register means register under this Act.

registered Australian body means a registrable Australian body that is registered under Division 1 of Part 5B.2.

registered body mean a registered Australian body or a registered foreign company.

registered company auditor:

                     (a)  means a person registered as an auditor under Part 9.2; and

                     (b)  in relation to a body corporate that is not a company—includes a person qualified to act as the body’s auditor under the law of the body’s incorporation.

registered foreign company means a foreign company that is registered under Division 2 of Part 5B.2.

registered liquidator has the same meaning as in section 5‑5 of Schedule 2.

registered office, in relation to a body corporate, means the body’s registered office under section 142 or 601CT, as the case requires.

registered scheme means a managed investment scheme that is registered under section 601EB.

registrable Australian body means:

                     (a)  a body corporate, not being:

                              (i)  a company; or

                             (ii)  an exempt public authority; or

                            (iii)  a corporation sole; or

                     (b)  an unincorporated body that, under the law of its place of formation:

                              (i)  may sue or be sued; or

                             (ii)  may hold property;

                            in the name of its secretary or of an officer of the body duly appointed for that purpose;

but does not include a foreign company.

registrable body means a registrable Australian body or a foreign company.

related body corporate, in relation to a body corporate, means a body corporate that is related to the first‑mentioned body by virtue of section 50.

related entity, in relation to a body corporate, means any of the following:

                     (a)  a promoter of the body;

                     (b)  a relative of such a promoter;

                     (c)  a relative of a spouse of such a promoter;

                     (d)  a director or member of the body or of a related body corporate;

                     (e)  a relative of such a director or member;

                      (f)  a relative of a spouse of such a director or member;

                     (g)  a body corporate that is related to the first‑mentioned body;

                     (h)  a beneficiary under a trust of which the first‑mentioned body is or has at any time been a trustee;

                      (i)  a relative of such a beneficiary;

                      (j)  a relative of a spouse of such a beneficiary;

                     (k)  a body corporate one of whose directors is also a director of the first‑mentioned body;

                      (l)  a trustee of a trust under which a person is a beneficiary, where the person is a related entity of the first‑mentioned body because of any other application or applications of this definition.

related party (when used in Chapter 2E) has the meaning given by section 228.

relation‑back day has the meaning given by section 91.

relative, in relation to a person, means the spouse, parent or remoter lineal ancestor, child or remoter issue, or brother or sister of the person.

relevant agreement means an agreement, arrangement or understanding:

                     (a)  whether formal or informal or partly formal and partly informal; and

                     (b)  whether written or oral or partly written and partly oral; and

                     (c)  whether or not having legal or equitable force and whether or not based on legal or equitable rights.

relevant date, in relation to a winding up, means the day on which the winding up is taken because of Division 1A of Part 5.6 to have begun.

Note:          Subsection 553(1B) modifies the operation of this definition for debts and claims that arise while a company is under a deed of company arrangement if the deed terminates immediately before the winding up.

relevant financial market, for a listed company, or listed registered scheme, means:

                     (a)  the prescribed financial market on which the company or scheme is listed; or

                     (b)  if the company or scheme is listed on 2 or more prescribed financial markets—each of those markets.

relevant interest, in relation to securities, has a meaning given by sections 608 and 609.

relevant market operator, for a listed company, or listed registered scheme, means:

                     (a)  if there is only one relevant financial market for the company or scheme—the operator of that relevant financial market; or

                     (b)  if there is 2 or more relevant financial markets for the company or scheme—each of the operators of each of those relevant financial markets.

remedial order means an order that:

                     (a)  restrains a person from exercising any voting or other rights attached to securities; or

                     (b)  directs a body corporate not to make or to defer payment of an amount due from the body corporate in respect of securities; or

                     (c)  restrains a person from acquiring securities or an interest in securities; or

                     (d)  directs a person to dispose of, or not to dispose of, securities or interests in securities; or

                     (e)  directs the disposal referred to in paragraph (d):

                              (i)  to be made within a specified time; or

                             (ii)  to be made subject to specified conditions; or

                            (iii)  not to be made to a specified person or persons or to a specified class or classes of persons;

                      (f)  directs a specified person to pay to the body corporate an amount equal to any profit or benefit that the person obtains because of the disposal referred to in paragraph (d); or

                     (g)  vests securities, or an interest in securities, in ASIC; or

                     (h)  directs a body corporate not to register the transfer or transmission of securities; or

                      (i)  cancels securities issued as consideration for offers under a takeover bid; or

                      (j)  declares that an exercise of the voting or other rights attached to securities be disregarded; or

                     (k)  cancels or declares voidable:

                              (i)  an agreement or offer relating to a takeover bid, or a proposed takeover bid; or

                             (ii)  any other agreement or offer in connection with the acquisition of securities or relevant interests in securities;

                      (l)  directs a person to give specified information to the holders of securities of a body corporate; or

                    (m)  directs a body corporate not to issue securities to a person; or

                     (n)  if an order of a kind referred to in paragraphs (a) to (m) is in force in respect of securities—directs the registered holder of the securities to give written notice of the order to any person whom the holder knows to be entitled to exercise a right to vote attached to those securities; or

                     (o)  directs a body corporate to repeal or modify its existing constitution or adopt a particular constitution; or

                     (p)  if a person has failed to comply with a requirement of Chapter 6, 6A, 6B or 6Cdirects that person to comply with that requirement.

remuneration of an officer or employee of a corporation. A benefit given to an officer or employee of a corporation is remuneration if and only if the benefit, were it received by a director of the corporation, would be remuneration of the director for the purposes of an accounting standard that deals with disclosure in companies’ financial reports of information about directors’ remuneration. For the purposes of this definition, the following are not officers of a corporation:

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

                     (b)  an administrator of the corporation;

                     (c)  an administrator of a deed of company arrangement executed by the corporation;

                     (d)  a liquidator of the corporation;

                     (e)  a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

remuneration committee has the meaning given by paragraph 206K(2)(b).

remuneration consultant means a person:

                     (a)  who makes a remuneration recommendation under a contract for services with the company to whose key management personnel the recommendation relates; and

                     (b)  who is not an officer or employee of the company.

remuneration recommendation has the meaning given by section 9B.

remuneration report means the section of the directors’ report for a financial year for a listed public company that is included under subsection 300A(1).

renounceable option means an assignable option to have an allotment of shares in a body corporate made to the holder of the option.

Replacement Product Disclosure Statement, when used in a provision outside Chapter 7, has the same meaning it has in Chapter 7.

reproduction, in relation to a document, means a machine‑copy of the document or a print made from a negative of the document.

resolution, when used in a provision outside Schedule 2 in relation to creditors or contributories, means a resolution passed at a meeting of the creditors or contributories.

resolution for voluntary winding up means the special resolution referred to in section 491.

responsible entity of a registered scheme means the company named in ASIC’s record of the scheme’s registration as the responsible entity or temporary responsible entity of the scheme.

responsible officer, in relation to a body corporate that applies for an Australian financial services licence, means an officer of the body who would perform duties in connection with the holding of the licence.

result includes:

                     (a)  when used as a verb—result indirectly; and

                     (b)  when used as a noun—an indirect result.

retention of title clause: property is subject to a retention of title clause under a contract for the sale of property:

                     (a)  if the contract contains a provision the effect of which is that the seller retains title in the property until the purchase price, or another amount, has been paid in full; and

                     (b)  if the purchase price, or the other amount, as the case may be, has not been paid in full; and

                     (c)  to the extent that the contract does not give rise to a PPSA security interest in the property.

Note:          See also the definitions of PPSA security interest in section 51 and PPSA retention of title property in section 51F.

retirement village scheme means a scheme, undertaking or enterprise (in this definition called the relevant scheme), whether in Australia or elsewhere, that is being, or is proposed to be, carried out or undertaken with the intention that the participants, or a majority of the participants, in the relevant scheme be provided, in connection with the relevant scheme, with residential accommodation within a retirement community, whether or not the entitlement of a participant to be provided with such accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is provided, but does not include a time‑sharing scheme.

return of particulars for a company or a registered scheme means a statement given by ASIC that contains any or all of the following:

                     (a)  some or all of the particulars in relation to the company or scheme that are recorded in the register or registers maintained by ASIC under subsection 1274(1);

                     (b)  a requirement to provide a particular under section 348B;

                     (c)  a requirement to comply with a subsection of section 348C (and, if applicable, pass a resolution).

review auditor has the meaning given by section 324AF.

review date has the meaning given by section 345A.

review fee has the meaning given by section 5 of the Corporations (Review Fees) Act 2003.

revoke, in relation to an accounting standard, means, in the case of a provision of an accounting standard, vary the last‑mentioned accounting standard by omitting the provision.

rights issue has the meaning given by subsections 9A(1) and (2).

rules means:

                     (a)  rules of the Federal Court; or

                     (b)  rules of the Supreme Court of a State or internal Territory;

as the case requires.

scheme property of a registered scheme means:

                     (a)  contributions of money or money’s worth to the scheme; and

                     (b)  money that forms part of the scheme property under provisions of this Act or the ASIC Act; and

                     (c)  money borrowed or raised by the responsible entity for the purposes of the scheme; and

                     (d)  property acquired, directly or indirectly, with, or with the proceeds of, contributions or money referred to in paragraph (a), (b) or (c); and

                     (e)  income and property derived, directly or indirectly, from contributions, money or property referred to in paragraph (a), (b), (c) or (d).

Note 1:     Paragraph (a)—if what a member contributes to a scheme is rights over property, the rights in the property that the member retains do not form part of the scheme property.

Note 2:     For provisions that are relevant to paragraph (b), see subsections 177(4), 1317HA(1A), 1317HB(3) and 1317HD(3) of this Act and subsection 93A(5) of the ASIC Act.

scrip means documents that are, or are documents of title to, securities.

section 513C day, in relation to the administration of a company, has the meaning given by section 513C.

secured creditor has the meaning given by section 51E.

secured party has the meaning given by section 51B.

securities has the meaning given by section 92.

security interest has the meaning given by section 51A.

selective buy‑back means a buy‑back that is none of the following:

                     (a)  a buy‑back under an equal access scheme within the meaning of subsections 257B(2) and (3);

                     (b)  a minimum holding buy‑back;

                     (c)  an on‑market buy‑back;

                     (d)  an employee share scheme buy‑back.

senior manager:

                     (a)  in relation to a corporation—means a person (other than a director or secretary of the corporation) who:

                              (i)  makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

                             (ii)  has the capacity to affect significantly the corporation’s financial standing; and

                     (b)  in relation to a partnership—means a person (other than a partner) who:

                              (i)  makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the partnership; or

                             (ii)  has the capacity to affect significantly the partnership’s financial standing; and

                     (c)  in relation to a trust—means a person (other than a trustee) who:

                              (i)  makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or affairs of the trust; or

                             (ii)  has the capacity to affect significantly the financial standing of the trust; and

                     (d)  in relation to a joint venture—means a person (other than a director or secretary of a corporation participating in the joint venture) who:

                              (i)  makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the joint venture; or

                             (ii)  has the capacity to affect significantly the financial standing of the joint venture.

serious fraud means an offence involving fraud or dishonesty, being an offence:

                     (a)  against an Australian law or any other law; and

                     (b)  punishable by imprisonment for life or for a period, or maximum period, of at least 3 months.

sheriff includes a person charged with the execution of a writ or other process.

simple corporate bonds has the meaning given by section 713A.

simple corporate bonds depository interest means a beneficial interest in simple corporate bonds, where the interest is or was issued by a simple corporate bonds depository nominee (as a simple corporate bonds depository nominee).

simple corporate bonds depository nominee means a person who:

                     (a)  issues to someone else one or more beneficial interests in simple corporate bonds that the person:

                              (i)  owns legally; or

                             (ii)  would own beneficially, apart from the issue of those interests; or

                            (iii)  has a beneficial interest in; and

                     (b)  does so with the agreement of the body that issued the bonds.

small company limited by guarantee has the meaning given by section 45B.

small proprietary company has the meaning given by subsection 45A(2).

solvency resolution means a resolution by the directors of a company as to whether or not, in their opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.

solvent has the meaning given by subsection 95A(1).

special resolution, when used in a provision outside Schedule 2 means:

                     (a)  in relation to a company, a resolution:

                              (i)  of which notice as set out in paragraph 249L(1)(c) has been given; and

                             (ii)  that has been passed by at least 75% of the votes cast by members entitled to vote on the resolution; or

                     (b)  in relation to a registered scheme, a resolution:

                              (i)  of which notice as set out in paragraph 252J(c) has been given; and

                             (ii)  that has been passed by at least 75% of the votes cast by members entitled to vote on the resolution.

spouse of a person includes a de facto partner of the person within the meaning of the Acts Interpretation Act 1901.

staff member, in relation to ASIC, means a person who is a staff member for the purposes of the ASIC Act.

standard opening hours means 10 am to 12 noon and 2 pm to 4 pm each business day.

State, when used in a geographical sense, includes the coastal sea of the State.

State Fair Trading Act means the following Acts for each State and Territory:

 

State Fair Trading Acts

 

State or Territory

Act

1

New South Wales

Fair Trading Act 1987

2

Victoria

Fair Trading Act 1999

3

Queensland

Fair Trading Act 1989

4

South Australia

Fair Trading Act 1987

5

Western Australia

Fair Trading Act 1987

6

Tasmania

Fair Trading Act 1990

7

Northern Territory

Consumer Affairs and Fair Trading Act 1990

8

Australian Capital Territory

Fair Trading Act 1992

State Family Court, in relation to a State, means a court of that State to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

statement, in Chapter 7, includes matter that is not written but conveys a message.

State or Territory court means a court of a State, the Capital Territory or the Northern Territory.

State or Territory Supreme Court means the Supreme Court of:

                     (a)  a State; or

                     (b)  the Capital Territory; or

                     (c)  the Northern Territory.

statutory demand means:

                     (a)  a document that is, or purports to be, a demand served under section 459E; or

                     (b)  such a document as varied by an order under subsection 459H(4).

statutory minimum means:

                     (a)  if an amount greater than $2,000 is prescribed—the prescribed amount; or

                     (b)  otherwise—$2,000.

subsection 1337B(3) proceeding means a proceeding with respect to a matter referred to in subsection 1337B(3).

subsidiary, in relation to a body corporate, means a body corporate that is a subsidiary of the first‑mentioned body by virtue of Division 6.

substantial holding: A person has a substantial holding in a body corporate, or listed registered managed investment scheme, if:

                     (a)  the total votes attached to voting shares in the body, or voting interests in the scheme, in which they or their associates:

                              (i)  have relevant interests; and

                             (ii)  would have a relevant interest but for subsection 609(6) (market traded options) or 609(7) (conditional agreements);

                            is 5% or more of the total number of votes attached to voting shares in the body, or interests in the scheme; or

                     (b)  the person has made a takeover bid for voting shares in the body, or voting interests in the scheme, and the bid period has started and not yet ended.

Note:          For relevant interest, see section 608.

substantial interest has a meaning affected by section 602A.

substantial part, in relation to activities, includes the whole of those activities.

superannuation guarantee charge has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.

superannuation guarantee shortfall has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.

superior court means the Federal Court of Australia, the Supreme Court of a State or Territory, the Family Court or a State Family Court.

superior court matter means a civil matter that this Act clearly intends (for example, by use of the expression the Court) to be dealt with only by a superior court.

Supplementary Product Disclosure Statement, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.

takeover bid means an off‑market bid or market bid made under Chapter 6.

takeover contract means a contract that results from the acceptance of an offer made under a takeover bid.

target for a takeover bid means the company, listed body or managed investment scheme whose securities are to be acquired under the bid.

target’s statement means a target’s statement under sections 638 to 640 as supplemented.

territorial sea has the same meaning as in the Seas and Submerged Lands Act 1973.

Territory means:

                     (a)  the Capital Territory; or

                     (b)  the Northern Territory; or

                     (c)  an external Territory;

and, when used in a geographical sense, includes the coastal sea of the Territory.

this Act includes the regulations and the Insolvency Practice Rules.

this jurisdiction means the geographical area that consists of:

                     (a)  each referring State (including its coastal sea); and

                     (b)  the Capital Territory (including the coastal sea of the Jervis Bay Territory); and

                     (c)  the Northern Territory (including its coastal sea); and

                     (d)  also, for the purposes of the application of a provision of Chapter 7 or an associated provision (as defined in section 5)—any external Territory in which the provision applies because of subsection 5(9) (but only to the extent provided for in that subsection).

time‑sharing scheme means a scheme, undertaking or enterprise, whether in Australia or elsewhere:

                     (a)  participants in which are, or may become, entitled to use, occupy or possess, for 2 or more periods during the period for which the scheme, undertaking or enterprise is to operate, property to which the scheme, undertaking or enterprise relates; and

                     (b)  that is to operate for a period of not less than 3 years.

trade, in relation to financial products, in relation to a financial market, includes:

                     (a)  make or accept on that financial market an offer to dispose of, acquire or exchange the financial products; and

                     (b)  make on that financial market an offer or invitation that is intended, or may reasonably be expected, to result in the making or acceptance of an offer to dispose of, acquire or exchange the financial products.

trading day of a financial market means a day on which the market is open for trading in financial products.

transaction, in Part 5.7B, in relation to a body corporate or Part 5.7 body, means a transaction to which the body is a party, for example (but without limitation):

                     (a)  a conveyance, transfer or other disposition by the body of property of the body; and

                     (b)  a security interest granted by the body in its property (including a security interest in the body’s PPSA retention of title property); and

                     (c)  a guarantee given by the body; and

                     (d)  a payment made by the body; and

                     (e)  an obligation incurred by the body; and

                      (f)  a release or waiver by the body; and

                     (g)  a loan to the body;

and includes such a transaction that has been completed or given effect to, or that has terminated.

transmission means a transmission, by means of electric or electromagnetic energy, of:

                     (a)  sounds, including speech and music; or

                     (b)  visual images; or

                     (c)  signals for the communication, whether as between persons and persons, persons and things or things and things, of any matter otherwise than in the form of sounds or visual images; or

                     (d)  signals for the actuation or control of machinery or apparatus.

transparency, in relation to a document, means:

                     (a)  a developed negative or positive photograph of that document (in this definition called an original photograph) made, on a transparent base, by means of light reflected from, or transmitted through, the document; or

                     (b)  a copy of an original photograph made by the use of photo‑sensitive material (being photo‑sensitive material on a transparent base) placed in surface contact with the original photograph; or

                     (c)  any one of a series of copies of an original photograph, the first of the series being made by the use of photo‑sensitive material (being photo‑sensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b), and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series.

transparency reporting auditor has the meaning given by subsection 332(1).

transparency reporting year has the meaning given by subsection 332(2).

Tribunal means the Administrative Appeals Tribunal.

ultimate holding company, in relation to a body corporate, means a body corporate that:

                     (a)  is a holding company of the first‑mentioned body; and

                     (b)  is itself a subsidiary of no body corporate.

unclaimed property means:

                     (a)  property paid or transferred to ASIC under a provision of this Act that provides for property to be transferred, or for the Court to direct that property be transferred, to ASIC to be dealt with under Part 9.7; or

                     (b)  any other property that a provision of this Act provides for ASIC to deal with under Part 9.7; or

                     (c)  property that vests in ASIC under section 1404; or

                     (d)  an accretion to, or substitution for, property that is unclaimed property because of any other application or applications of this definition.

uncommercial transaction has the meaning given by section 588FB.

underlying securities means:

                     (a)  in relation to an option over securities—those securities; and

                     (b)  in relation to scrip that is constituted by documents that are, or are documents of title to, securities—those securities.

undertaking, in relation to a managed investment scheme, means the undertaking, scheme, enterprise, contract or arrangement to which the scheme relates.

underwrite includes sub‑underwrite.

unfair loan has the meaning given by section 588FD.

unfair preference has the meaning given by section 588FA.

unit, in relation to a share, debenture or other interest, means a right or interest, whether legal or equitable, in the share, debenture or other interest, by whatever term called, and includes an option to acquire such a right or interest in the share, debenture or other interest.

unlimited company means a company whose members have no limit placed on their liability.

unlisted disclosing entity has the meaning given by subsection 111AL(2).

unreasonable director‑related transaction has the meaning given by section 588FDA.

unsecured, in relation to a debt, has in Part 5.7B a meaning affected by section 588D.

value, in relation to an asset, includes amount.

voting interest, in relation to a managed investment scheme, means an issued interest in the scheme that confers a right to vote, not being a right to vote that is exercisable only in one or more of the following circumstances:

                     (a)  on a proposal that affects rights attached to the interests;

                     (b)  on a proposal to wind up the scheme;

                     (c)  on a proposal for the disposal of the whole of the scheme property, business and undertaking;

                     (d)  during the winding up of the scheme.

voting power in a body or managed investment scheme has the meaning given by section 610.

voting share in a body corporate means an issued share in the body that carries any voting rights beyond the following:

                     (a)  a right to vote while a dividend (or part of a dividend) in respect of the share is unpaid;

                     (b)  a right to vote on a proposal to reduce the body’s share capital;

                     (c)  a right to vote on a resolution to approve the terms of a buy‑back agreement;

                     (d)  a right to vote on a proposal that affects the rights attached to the share;

                     (e)  a right to vote on a proposal to wind the body up;

                      (f)  a right to vote on a proposal for the disposal of the whole of the body’s property, business and undertaking;

                     (g)  a right to vote during the body’s winding up.

wages, in relation to a company, means amounts payable to or in respect of an employee of the company (whether the employee is remunerated by salary, wages, commission or otherwise) under an industrial instrument, including amounts payable by way of allowance or reimbursement but excluding amounts payable in respect of leave of absence.

wholly‑owned subsidiary, in relation to a body corporate, means a body corporate none of whose members is a person other than:

                     (a)  the first‑mentioned body; or

                     (b)  a nominee of the first‑mentioned body; or

                     (c)  a subsidiary of the first‑mentioned body, being a subsidiary none of whose members is a person other than:

                              (i)  the first‑mentioned body; or

                             (ii)  a nominee of the first‑mentioned body; or

                     (d)  a nominee of such a subsidiary.

winding up by the Court includes winding up in insolvency.

wound up by the Court includes wound up in insolvency.

9AA  Certain family relationships

                   For the purposes of this Act, relationships (including the relationship of being family) are taken to include:

                     (a)  relationships between de facto partners (within the meaning of the Acts Interpretation Act 1901); and

                     (b)  relationships of child and parent that arise:

                              (i)  if someone is an exnuptial or adoptive child of a person; or

                             (ii)  if someone is the child of a person because of the definition of child in this Act; and

                     (c)  relationships traced through relationships referred to in paragraphs (a) and (b).

9A  Meaning of rights issue

             (1)  A rights issue is an offer of a body’s securities for issue in respect of which the following conditions are met:

                     (a)  the securities being offered for issue are in a particular class;

                     (b)  either:

                              (i)  the offer is made to every person who holds securities in that class to issue them, or their assignee, with the percentage of the securities to be issued that is the same as the percentage of the securities in that class that they hold before the offer; or

                             (ii)  if the conditions in subsection (3) are met—such an offer is made to every person with a registered address in Australia or New Zealand who holds securities in that class;

                     (c)  the terms of each offer are the same.

             (2)  A rights issue is an offer of interests in a managed investment scheme for issue in respect of which the following conditions are met:

                     (a)  the interests being offered for issue are in a particular class;

                     (b)  either:

                              (i)  the offer is made to every person who holds interests in that class to issue them, or their assignee, with the percentage of the interests to be issued that is the same as the percentage of the interests in that class that they hold before the offer; or

                             (ii)  if the conditions in subsection (3) are met—such an offer is made to every person with a registered address in Australia or New Zealand who holds interests in that class;

                     (c)  the terms of each offer are the same.

             (3)  The conditions in this subsection are met if:

                     (a)  the body or responsible entity (as the case requires) decides that it is unreasonable to offer securities or interests (as the case requires) for issue to persons (the non‑residents) with a registered address in a place outside Australia or New Zealand, after taking into account the following matters:

                              (i)  the number of non‑residents, in that place, to whom offers would otherwise be made;

                             (ii)  the number and value of the securities or interests that would otherwise be offered for issue;

                            (iii)  the cost of complying with the laws, and any requirements of any regulatory authority, of the place where the securities or interests would otherwise be offered for issue; and

                     (b)  the body or responsible entity:

                              (i)  sends details of the offer to each non‑resident in that place; and

                             (ii)  advises each non‑resident in that place that the non‑resident will not be offered the securities or interests; and

                     (c)  if the invitation to apply for, or the right to be issued with, the securities or interests is able to be assigned—the body or responsible entity:

                              (i)  advises each non‑resident in that place that a nominee will be appointed to sell the invitation or right that would otherwise have been offered to the non‑resident; and

                             (ii)  advises each non‑resident that the nominee will send the non‑resident any net proceeds from the sale of that invitation or those rights; and

                            (iii)  appoints a nominee in Australia to carry out the obligations referred to in subparagraphs (i) and (ii).

             (4)  For the purposes of this section, a reference to an offer of securities includes a reference to an invitation to apply for the issue of securities.

9B  Meaning of remuneration recommendation

             (1)  A remuneration recommendation is:

                     (a)  a recommendation about either or both of the following:

                              (i)  how much the remuneration should be;

                             (ii)  what elements the remuneration should have;

                            for one or more members of the key management personnel for a company; or

                     (b)  a recommendation or advice about a matter or of a kind prescribed by the regulations.

             (2)  None of the following is a remuneration recommendation (even if it would otherwise be covered by subsection (1)):

                     (a)  advice about the operation of the law (including tax law);

                     (b)  advice about the operation of accounting principles (for example, about how options should be valued);

                     (c)  advice about the operation of actuarial principles and practice;

                     (d)  the provision of facts;

                     (e)  the provision of information of a general nature relevant to all employees of the company;

                      (f)  a recommendation, or advice or information, of a kind prescribed by the regulations.

             (3)  Subsection (2) does not limit the things that are not remuneration recommendations, nor does it mean that something specified in that subsection would otherwise be a remuneration recommendation within the meaning of subsection (1).

             (4)  ASIC may by writing declare that subsection (1) does not apply to a specified recommendation or specified advice, but may do so only if ASIC is satisfied that it would be unreasonable in the circumstances for the advice or recommendation to be a remuneration recommendation. The declaration has effect accordingly. The declaration is not a legislative instrument.

Division 2Associates

10  Effect of Division

             (1)  This Division has effect for the purposes of interpreting a reference (in this Division called the associate reference), in relation to a person (in this Division called the primary person), to an associate.

             (2)  A person is not an associate of the primary person except as provided in this Division.

             (3)  Nothing in this Division limits the generality of anything else in it.

11  Associates of bodies corporate

                   If the primary person is a body corporate, the associate reference includes a reference to:

                     (a)  a director or secretary of the body; and

                     (b)  a related body corporate; and

                     (c)  a director or secretary of a related body corporate.

12  References in Chapters 6 to 6C, and other references relating to voting power and takeovers etc.

             (1)  Subject to subsection 16(1), but despite anything else in this Part, this section applies for the purposes of interpreting a reference to an associate (the associate reference), in relation to a designated body, if:

                     (a)  the reference occurs in a provision of Chapter 6, 6A, 6B or 6C; or

                     (b)  the reference occurs in a provision outside those Chapters that relates to any of the following matters:

                              (i)  the extent, or restriction, of a power to exercise, or to control the exercise of, the votes attached to voting shares in the designated body;

                             (ii)  the primary person’s voting power in the designated body;

                            (iii)  relevant interests in securities in the designated body;

                            (iv)  a substantial holding in the designated body;

                             (v)  a takeover bid for securities in the designated body;

                            (vi)  the compulsory acquisition, or compulsory buy‑out, of securities in the designated body.

             (2)  For the purposes of the application of the associate reference in relation to the designated body, a person (the second person) is an associate of the primary person if, and only if, one or more of the following paragraphs applies:

                     (a)  the primary person is a body corporate and the second person is:

                              (i)  a body corporate the primary person controls; or

                             (ii)  a body corporate that controls the primary person; or

                            (iii)  a body corporate that is controlled by an entity that controls the primary person;

                     (b)  the second person is a person with whom the primary person has, or proposes to enter into, a relevant agreement for the purpose of controlling or influencing the composition of the designated body’s board or the conduct of the designated body’s affairs;

                     (c)  the second person is a person with whom the primary person is acting, or proposing to act, in concert in relation to the designated body’s affairs.

             (3)  For the purposes of the application of this section in relation to a designated body that is a managed investment scheme:

                     (a)  a reference to controlling or influencing the composition of the designated body’s board is taken to be a reference to controlling or influencing:

                              (i)  if the scheme is a registered scheme—whether a particular company becomes or remains the scheme’s responsible entity; or

                             (ii)  if the scheme is not a registered scheme—whether a particular person is appointed, or remains appointed, to the office (by whatever name it is known) in relation to the scheme that corresponds most closely to the office of responsible entity of a registered scheme; and

                     (b)  a reference to voting shares in the designated body is taken to be a reference to voting interests in the managed investment scheme.

             (4)  In relation to a matter relating to securities in a designated body, a person may be an associate of the body and the body may be an associate of the person.

             (5)  In this section:

designated body means:

                     (a)  a body; or

                     (b)  a managed investment scheme.

13  References in Chapter 7

                   If the associate reference occurs in Chapter 7, it includes a reference to:

                     (a)  a person in partnership with whom the primary person carries on a financial services business; and

                     (b)  subject to subsection 16(2), a person who is a partner of the primary person otherwise than because of carrying on a financial services business in partnership with the primary person; and

                     (c)  a trustee of a trust in relation to which the primary person benefits, or is capable of benefiting, otherwise than because of transactions entered into in the ordinary course of business in connection with the lending of money; and

                     (d)  a director of a body corporate of which the primary person is also a director and that carries on a financial services business; and

                     (e)  subject to subsection 16(2), a director of a body corporate of which the primary person is also a director and that does not carry on a financial services business.

15  General

             (1)  The associate reference includes a reference to:

                     (a)  a person in concert with whom the primary person is acting, or proposes to act; and

                     (b)  a person who, under the regulations, is, for the purposes of the provision in which the associate reference occurs, an associate of the primary person; and

                     (c)  a person with whom the primary person is, or proposes to become, associated, whether formally or informally, in any other way;

in respect of the matter to which the associate reference relates.

             (2)  If the primary person has entered, or proposes to enter, into a transaction, or has done, or proposes to do, any act or thing, in order to become associated with another person as mentioned in an applicable provision of this Division, the associate reference includes a reference to that other person.

16  Exclusions

             (1)  A person is not an associate of another person by virtue of section 12 or subsection 15(1), or by virtue of subsection 15(2) as it applies in relation to section 12 or subsection 15(1), merely because of one or more of the following:

                     (a)  one gives advice to the other, or acts on the other’s behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship;

                     (b)  one, a client, gives specific instructions to the other, whose ordinary business includes dealing in financial products, to acquire financial products on the client’s behalf in the ordinary course of that business;

                     (c)  one had sent, or proposes to send, to the other an offer under a takeover bid for shares held by the other;

                     (d)  one has appointed the other, otherwise than for valuable consideration given by the other or by an associate of the other, to vote as a proxy or representative at a meeting of members, or of a class of members, of a body corporate.

             (2)  For the purposes of proceedings under this Act in which it is alleged that a person was an associate of another person by virtue of paragraph 13(b) or (e), the first‑mentioned person is not taken to have been an associate of the other person in relation to a matter by virtue of that paragraph unless it is proved that the first‑mentioned person knew, or ought to have known, at that time, the material particulars of that matter.

17  Associates of composite person that carries on a financial services business

                   A reference to an associate, in relation to an entity (other than a body corporate) that carries on a financial services business, is, if 2 or more persons constitute the entity, a reference to an associate of any of those persons.

Division 3Carrying on business

18  Carrying on business: otherwise than for profit

                   A reference to a person carrying on business, carrying on a business, or carrying on a business of a particular kind, includes a reference to the person carrying on business, carrying on a business, or carrying on a business of that kind, as the case may be:

                     (a)  in any case—otherwise than for profit; or

                     (b)  in the case of a body corporate—otherwise than for the profit of the members or corporators of the body.

19  Businesses of a particular kind

                   A reference to a business of a particular kind includes a reference to a business of that kind that is part of, or is carried on in conjunction with, any other business.

20  Carrying on a business: alone or together with others

                   A reference in this Act to a person carrying on a business, or a business of a particular kind, is a reference to the person carrying on a business, or a business of that kind, whether alone or together with any other person or persons.

21  Carrying on business in Australia or a State or Territory

             (1)  A body corporate that has a place of business in Australia, or in a State or Territory, carries on business in Australia, or in that State or Territory, as the case may be.

             (2)  A reference to a body corporate carrying on business in Australia, or in a State or Territory, includes a reference to the body:

                     (a)  establishing or using a share transfer office or share registration office in Australia, or in the State or Territory, as the case may be; or

                     (b)  administering, managing, or otherwise dealing with, property situated in Australia, or in the State or Territory, as the case may be, as an agent, legal personal representative or trustee, whether by employees or agents or otherwise.

             (3)  Despite subsection (2), a body corporate does not carry on business in Australia, or in a State or Territory, merely because, in Australia, or in the State or Territory, as the case may be, the body:

                     (a)  is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute; or

                     (b)  holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or

                     (c)  maintains a bank account; or

                     (d)  effects a sale through an independent contractor; or

                     (e)  solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be; or

                      (f)  creates evidence of a debt, or creates a security interest in property, including PPSA retention of title property of the body; or

                     (g)  secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts; or

                     (h)  conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or

                      (j)  invests any of its funds or holds any property.

Division 5ATypes of company

45A  Proprietary companies

             (1)  A proprietary company is a company that is registered as, or converts to, a proprietary company under this Act.

Note 1:       A proprietary company can be registered under section 118 or 601BD. A company can convert to a proprietary company under Part 2B.7.

Note 2:       A proprietary company must:

·       be limited by shares or be an unlimited company with a share capital

·       have no more than 50 non‑employee shareholders

·       not do anything that would require disclosure to investors under Chapter 6D (except in limited circumstances).

                   (see section 113).

Small proprietary company

             (2)  A proprietary company is a small proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

                     (a)  the consolidated revenue for the financial year of the company and the entities it controls (if any) is less than $25 million, or any other amount prescribed by the regulations for the purposes of this paragraph;

                     (b)  the value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is less than $12.5 million, or any other amount prescribed by the regulations for the purposes of this paragraph;

                     (c)  the company and the entities it controls (if any) have fewer than 50, or any other number prescribed by the regulations for the purposes of this paragraph, employees at the end of the financial year.

Note:          A small proprietary company generally has reduced financial reporting requirements (see subsection 292(2)).

Large proprietary company

             (3)  A proprietary company is a large proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

                     (a)  the consolidated revenue for the financial year of the company and the entities it controls (if any) is $25 million, or any other amount prescribed by the regulations for the purposes of paragraph (2)(a), or more;

                     (b)  the value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is $12.5 million, or any other amount prescribed by the regulations for the purposes of paragraph (2)(b), or more;

                     (c)  the company and the entities it controls (if any) have 50, or any other number prescribed by the regulations for the purposes of paragraph (2)(c), or more employees at the end of the financial year.

When a company controls an entity

             (4)  For the purposes of this section, the question whether a proprietary company controls an entity is to be decided in accordance with the accounting standards made for the purposes of paragraph 295(2)(b) (even if the standards do not otherwise apply to the company).

Counting employees

             (5)  In counting employees for the purposes of subsections (2) and (3), take part‑time employees into account as an appropriate fraction of a full‑time equivalent.

Accounting standards

             (6)  Consolidated revenue and the value of consolidated gross assets are to be calculated for the purposes of this section in accordance with accounting standards in force at the relevant time (even if the standard does not otherwise apply to the financial year of some or all of the companies concerned).

45B  Small companies limited by guarantee

             (1)  A company is a small company limited by guarantee in a particular financial year if:

                     (a)  it is a company limited by guarantee for the whole of the financial year; and

                     (b)  it is not a deductible gift recipient at any time during the financial year; and

                     (c)  either:

                              (i)  where the company is not required by the accounting standards to be included in consolidated financial statements—the revenue of the company for the financial year is less than the threshold amount; or

                             (ii)  where the company is required by the accounting standards to be included in consolidated financial statements—the consolidated revenue of the consolidated entity for the financial year is less than the threshold amount; and

                     (d)  it is not one of the following:

                              (i)  a Commonwealth company for the purposes of the Public Governance, Performance and Accountability Act 2013;

                             (ii)  a subsidiary of a Commonwealth company for the purposes of that Act;

                            (iii)  a subsidiary of a corporate Commonwealth entity for the purposes of that Act; and

                     (e)  it has not been a transferring financial institution of a State or Territory within the meaning of clause 1 of Schedule 4 to this Act; and

                      (f)  it is not a company that is permitted to use the expression building society, credit society or credit union under section 66 of the Banking Act 1959 at any time during the financial year.

             (2)  The threshold amount, for the purposes of subparagraphs (1)(c)(i) and (ii), is $250,000, or any other amount prescribed by the regulations for the purposes of this subsection.

             (3)  Revenue and consolidated revenue are to be calculated for the purposes of this section in accordance with accounting standards in force at the relevant time (even if the standard does not otherwise apply to the financial year of some or all of the companies concerned).

Division 6Subsidiaries and related bodies corporate

46  What is a subsidiary

                   A body corporate (in this section called the first body) is a subsidiary of another body corporate if, and only if:

                     (a)  the other body:

                              (i)  controls the composition of the first body’s board; or

                             (ii)  is in a position to cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the first body; or

                            (iii)  holds more than one‑half of the issued share capital of the first body (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

                     (b)  the first body is a subsidiary of a subsidiary of the other body.

47  Control of a body corporate’s board

                   Without limiting by implication the circumstances in which the composition of a body corporate’s board is taken to be controlled by another body corporate, the composition of the board is taken to be so controlled if the other body, by exercising a power exercisable (whether with or without the consent or concurrence of any other person) by it, can appoint or remove all, or the majority, of the directors of the first‑mentioned body, and, for the purposes of this Division, the other body is taken to have power to make such an appointment if:

                     (a)  a person cannot be appointed as a director of the first‑mentioned body without the exercise by the other body of such a power in the person’s favour; or

                     (b)  a person’s appointment as a director of the first‑mentioned body follows necessarily from the person being a director or other officer of the other body.

48  Matters to be disregarded

             (1)  This section applies for the purposes of determining whether a body corporate (in this section called the first body) is a subsidiary of another body corporate.

             (2)  Any shares held, or power exercisable, by the other body in a fiduciary capacity are treated as not held or exercisable by it.

             (3)  Subject to subsections (4) and (5), any shares held, or power exercisable:

                     (a)  by a person as a nominee for the other body (except where the other body is concerned only in a fiduciary capacity); or

                     (b)  by, or by a nominee for, a subsidiary of the other body (not being a subsidiary that is concerned only in a fiduciary capacity);

are treated as held or exercisable by the other body.

             (4)  Any shares held, or power exercisable, by a person by virtue of the provisions of debentures of the first body, or of a trust deed for securing an issue of such debentures, are to be disregarded.

             (5)  Any shares held, or power exercisable, otherwise than as mentioned in subsection (4), by, or by a nominee for, the other body or a subsidiary of it are to be treated as not held or exercisable by the other body if:

                     (a)  the ordinary business of the other body or that subsidiary, as the case may be, includes lending money; and

                     (b)  the shares are held, or the power is exercisable, only by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with lending money, not being a transaction entered into with an associate of the other body, or of that subsidiary, as the case may be.

49  References in this Division to a subsidiary

                   A reference in paragraph 46(b) or 48(3)(b) or subsection 48(5) to being a subsidiary, or to a subsidiary, of a body corporate includes a reference to being a subsidiary, or to a body corporate that is a subsidiary, as the case may be, of the first‑mentioned body by virtue of any other application or applications of this Division.

50  Related bodies corporate

                   Where a body corporate is:

                     (a)  a holding company of another body corporate; or

                     (b)  a subsidiary of another body corporate; or

                     (c)  a subsidiary of a holding company of another body corporate;

the first‑mentioned body and the other body are related to each other.

50AAA  Associated entities

             (1)  One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

             (2)  This subsection is satisfied if the associate and the principal are related bodies corporate.

             (3)  This subsection is satisfied if the principal controls the associate.

             (4)  This subsection is satisfied if:

                     (a)  the associate controls the principal; and

                     (b)  the operations, resources or affairs of the principal are material to the associate.

             (5)  This subsection is satisfied if:

                     (a)  the associate has a qualifying investment (see subsection (8)) in the principal; and

                     (b)  the associate has significant influence over the principal; and

                     (c)  the interest is material to the associate.

             (6)  This subsection is satisfied if:

                     (a)  the principal has a qualifying investment (see subsection (8)) in the associate; and

                     (b)  the principal has significant influence over the associate; and

                     (c)  the interest is material to the principal.

             (7)  This subsection is satisfied if:

                     (a)  an entity (the third entity) controls both the principal and the associate; and

                     (b)  the operations, resources or affairs of the principal and the associate are both material to the third entity.

             (8)  For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

                     (a)  has an asset that is an investment in the second entity; or

                     (b)  has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.

50AA  Control

             (1)  For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

             (2)  In determining whether the first entity has this capacity:

                     (a)  the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

                     (b)  any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).

             (3)  The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

             (4)  If the first entity:

                     (a)  has the capacity to influence decisions about the second entity’s financial and operating policies; and

                     (b)  is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity’s members;

the first entity is taken not to control the second entity.

Division 6ASecurity interests

51  Meaning of PPSA security interest

                   In this Act:

PPSA security interest (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.

Note 1:       The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:

(a)    section 8 (interests to which the Act does not apply);

(b)    section 12 (meaning of security interest);

(c)    Chapter 9 (transitional provisions).

Note 2:       For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.

51A  Meaning of security interest

                   In this Act:

security interest means:

                     (a)  a PPSA security interest; or

                     (b)  a charge, lien or pledge.

51B  Meaning of secured party

                   In this Act:

secured party, in relation to a security interest, means:

                     (a)  if the security interest is a PPSA security interest—a secured party within the meaning of the Personal Property Securities Act 2009; or

                     (b)  if the security interest is not a PPSA security interest, but consists of a charge, lien or pledge in relation to the property—a chargee, lienee or pledgee in relation to the charge, lien or pledge.

Note:          Security interests are either PPSA security interests, or charges, liens or pledges (see section 51A).

51C  Meaning of circulating security interest

                   In this Act:

circulating security interest means a security interest that is:

                     (a)  a PPSA security interest, if:

                              (i)  the security interest has attached to a circulating asset within the meaning of the Personal Property Securities Act 2009; and

                             (ii)  the grantor (within the meaning of that Act) has title to the asset; or

                     (b)  a floating charge.

Note:          Security interests are either PPSA security interests, or charges, liens or pledges (see section 51A).

51D  Meaning of possessory security interest

                   In this Act:

possessory security interest, in relation to property, means a security interest that is:

                     (a)  a PPSA security interest in the property that is perfected by possession or control, within the meaning of the Personal Property Securities Act 2009; or

                     (b)  a lien or a pledge in relation to the property.

Note:          Security interests are either PPSA security interests, or charges, liens or pledges (see section 51A).

51E  Meaning of secured creditor

                   In this Act:

secured creditor of a corporation means a creditor of the corporation, if the debt owing to the creditor is secured by a security interest.

51F  Meaning of PPSA retention of title property

Definition

             (1)  Property is PPSA retention of title property (short for Personal Property Securities Act retention of title property) of a corporation if:

                     (a)  the property is personal property; and

                     (b)  the property is used or occupied by, or is in the possession of, the corporation; and

                     (c)  the corporation does not have title to the property; and

                     (d)  a PPSA security interest is attached to the property, within the meaning of the Personal Property Securities Act 2009; and

                     (e)  the corporation is the grantor in relation to the PPSA security interest, within the meaning of that Act.

Examples:  The following personal property is PPSA retention of title property if a PPSA security interest attaches to the property by virtue of the transaction concerned, and the grantor is a corporation:

(a)    property that is the subject of an agreement to sell subject to retention of title, or a hire purchase agreement, that secures the payment or performance of an obligation (see subsection 12(2) of the Personal Property Securities Act 2009);

(b)    property that is the subject of a lease, or a consignment agreement, that secures the payment or performance of an obligation (see subsection 12(2) of the Personal Property Securities Act 2009);

(c)    goods that are the subject of a commercial consignment (see subsection 12(3) of the Personal Property Securities Act 2009);

(d)    goods that are leased or bailed under a PPS lease (see subsection 12(3) of the Personal Property Securities Act 2009).

References to property of a corporation

             (2)  A reference in this Act to the property of a corporation does not include a reference to any PPSA retention of title property of the corporation, unless provided otherwise expressly or by necessary implication.

Note:          See also the definition of property in section 9.

Division 7Interpretation of other expressions

52  Doing acts

                   A reference to doing an act or thing includes a reference to causing or authorising the act or thing to be done.

52A  Signing

                   Without affecting the law on agency, if this Act requires that something be signed, it can be signed by an individual using a power of attorney from the person required to sign.

53  Affairs of a body corporate

                   For the purposes of the definition of examinable affairs in section 9, section 53AA, 232, 233 or 234, paragraph 461(1)(e), section 487, subsection 1307(1) or section 1309, or of a prescribed provision of this Act, the affairs of a body corporate include:

                     (a)  the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with any other person or persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with any other person or persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the body; and

                     (b)  in the case of a body corporate (not being a licensed trustee company within the meaning of Chapter 5D or the Public Trustee of a State or Territory) that is a trustee (but without limiting the generality of paragraph (a))—matters concerned with the ascertainment of the identity of the persons who are beneficiaries under the trust, their rights under the trust and any payments that they have received, or are entitled to receive, under the terms of the trust; and

                     (c)  the internal management and proceedings of the body; and

                     (d)  any act or thing done (including any contract made and any transaction entered into) by or on behalf of the body, or to or in relation to the body or its business or property, at a time when:

                              (i)  a receiver, or a receiver and manager, is in possession of, or has control over, property of the body; or

                             (ii)  the body is under administration; or

                           (iia)  a deed of company arrangement executed by the body has not yet terminated; or

                            (iii)  a compromise or arrangement made between the body and any other person or persons is being administered; or

                            (iv)  the body is being wound up;

                            and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, of an administrator of the body, of an administrator of such a deed of company arrangement, of a person administering such a compromise or arrangement or of a liquidator or provisional liquidator of the body; and

                     (e)  the ownership of shares in, debentures of, and interests in a managed investment scheme made available by, the body; and

                      (f)  the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the body or to dispose of, or to exercise control over the disposal of, such shares; and

                     (g)  matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the body or are or have been able to control or materially to influence the policy of the body; and

                     (h)  the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, debentures of, or interests in a managed investment scheme made available by, the body; and

                      (j)  where the body has made available interests in a managed investment scheme—any matters concerning the financial or business undertaking, scheme, common enterprise or investment contract to which the interests relate; and

                     (k)  matters relating to or arising out of the audit of, or working papers or reports of an auditor concerning, any matters referred to in a preceding paragraph.

53AA  Business affairs of a body corporate

                   A body corporate’s business affairs include (without limitation):

                     (a)  any of the body’s affairs (including anything that is included in the body’s affairs because of section 53); and

                     (b)  matters concerned with ascertaining the corporations with which the body is or has been connected.

53AB  Business affairs of a natural person

                   A natural person’s business affairs include (without limitation):

                     (a)  the person’s examinable operations and examinable assets and liabilities; and

                     (b)  any act done (including any contract made and any transaction entered into) by or on behalf of the person, or to or in relation to the person or his or her business or property, at a time when:

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

                             (ii)  the person had, under a law of an external Territory or of a foreign country, the status of an undischarged bankrupt; or

                            (iii)  the person’s property was subject to control under Division 2 of Part X of the Bankruptcy Act 1966 because of an authority given by the person under section 188 of that Act; or

                            (iv)  a personal insolvency agreement under Part X of the Bankruptcy Act 1966 or under the corresponding provisions of the law of an external Territory or of a foreign country was in effect in relation to the person or the person’s property; and

                     (c)  without limiting the generality of paragraph (b), any conduct of the trustee of such a bankrupt estate or of such a personal insolvency agreement or a person acting under such an authority; and

                     (d)  matters concerned with ascertaining the corporations with which the person is or has been connected.

53AC  Business affairs of a partnership

                   A partnership’s business affairs include (without limitation):

                     (a)  the partnership’s promotion, formation, membership, control, examinable operations and examinable assets and liabilities; and

                     (b)  the partnership’s management and proceedings; and

                     (c)  any act done (including any contract made and any transaction entered into) by or on behalf of the partnership, or to or in relation to the partnership, at a time when the partnership is being wound up; and

                     (d)  matters concerned with ascertaining the corporations with which the partnership is or has been connected.

53AD  Business affairs of a trust

                   A trust’s business affairs include (without limitation):

                     (a)  the creation of the trust; and

                     (b)  matters arising under, or otherwise relating to, the terms of the trust; and

                     (c)  the appointment and removal of a trustee of the trust; and

                     (d)  the business, trading, transactions and dealings of the trustee of the trust; and

                     (e)  the profits, income and receipts of the trustee of the trust; and

                      (f)  the losses, outgoings and expenditure of the trustee of the trust; and

                     (g)  the trust property, including transactions and dealings in, and the income arising from, the trust property; and

                     (h)  the liabilities of the trustee of the trust; and

                      (j)  the management of the trust; and

                     (k)  any act done (including any contract made and any transaction entered into) by or on behalf of the trustee of the trust, or to or in relation to the trust, at a time when the trust is being wound up; and

                      (l)  matters concerned with ascertaining the corporations with which the trust is or has been connected.

57  Classes of shares or interests in managed investment schemes

             (1)  The shares in a body corporate, if not divided into 2 or more classes, constitute a class.

             (2)  If the interests in a managed investment scheme to which an undertaking relates are not divided into 2 or more classes, they constitute a class.

57A  Meaning of corporation

             (1)  Subject to this section, in this Act, corporation includes:

                     (a)  a company; and

                     (b)  any body corporate (whether incorporated in this jurisdiction or elsewhere); and

                     (c)  an unincorporated body that under the law of its place of origin, may sue or be sued, or may hold property in the name of its secretary or of an office holder of the body duly appointed for that purpose.

             (2)  Neither of the following is a corporation:

                     (a)  an exempt public authority;

                     (b)  a corporation sole.

             (3)  To avoid doubt, an Aboriginal and Torres Strait Islander corporation is taken to be a corporation for the purposes of this Act.

Note:          Various provisions of this Act that generally apply to corporations do not apply to Aboriginal and Torres Strait Islander corporations because of express provisions to that effect: see section 190B, subsection 197(5), section 206HB and subsections 599(2), 1309(6), 1318(5) and 1335(3).

58AA  Meaning of court and Court

             (1)  Subject to subsection (2), in this Act:

court means any court.

Court means any of the following courts:

                     (a)  the Federal Court;

                     (b)  the Supreme Court of a State or Territory;

                     (c)  the Family Court of Australia;

                     (d)  a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

             (2)  Except where there is a clear expression of a contrary intention (for example, by use of the expression “the Court”), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.

Note:          The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.

58B  Discharge of obligations under this Act

             (2)  Subject to subsection (3), an act required to be done under this Act may, for the purposes of this Act, be done anywhere in Australia, whether in or outside this jurisdiction.

             (3)  Nothing in subsection (2) affects the operation of any provision of this Act that:

                     (a)  expressly requires a particular act to be done in this jurisdiction; or

                     (b)  expressly or by implication permits a particular act to be done outside Australia.

59  Debentures as consideration for acquisition of shares

                   A reference to a body corporate that offers debentures as consideration for the acquisition of shares in a body corporate includes a reference to a body corporate that offers a cash sum as consideration for the acquisition of shares where it is to be a term of the contract for the acquisition of those shares that the offeree makes, or that the sum is applied in whole or in part in making, a payment by way of deposit with, or loan to, the body corporate that offers the sum.

60  Declaration of relevant relationships

Administrator

             (1)  In this Act, a declaration of relevant relationships, in relation to an administrator of a company under administration, means a written declaration:

                     (a)  stating whether any of the following:

                              (i)  the administrator;

                             (ii)  if the administrator’s firm (if any) is a partnership—a partner in that partnership;

                            (iii)  if the administrator’s firm (if any) is a body corporate—that body corporate or an associate of that body corporate;

                            has, or has had within the preceding 24 months, a relationship with:

                            (iv)  the company; or

                             (v)  an associate of the company; or

                            (vi)  a former liquidator, or former provisional liquidator, of the company; or

                           (vii)  a person who is entitled to enforce a security interest in the whole, or substantially the whole, of the company’s property (including any PPSA retention of title property); and

                     (b)  if so, stating the administrator’s reasons for believing that none of the relevant relationships result in the administrator having a conflict of interest or duty.

Liquidator

             (2)  In this Act, a declaration of relevant relationships, in relation to a liquidator of a company, means a written declaration:

                     (a)  stating whether any of the following:

                              (i)  the liquidator;

                             (ii)  if the liquidator’s firm (if any) is a partnership—a partner in that partnership;

                            (iii)  if the liquidator’s firm (if any) is a body corporate—that body corporate or an associate of that body corporate;

                            has, or has had within the preceding 24 months, a relationship with:

                            (iv)  the company; or

                             (v)  an associate of the company; or

                            (vi)  a former liquidator, or former provisional liquidator, of the company; or

                           (vii)  a former administrator of the company; or

                          (viii)  a former administrator of a deed of company arrangement executed by the company; and

                     (b)  if so, stating the liquidator’s reasons for believing that none of the relevant relationships result in the liquidator having a conflict of interest or duty.

64  Entering into a transaction in relation to shares or securities

                   A reference in Chapter 6 to entering into a transaction in relation to shares or securities includes a reference to:

                     (a)  entering into, or becoming a party to, a relevant agreement in relation to the shares or securities; and

                     (b)  exercising an option to have the shares or securities allotted.

64A  Entities

                   Except in Chapter 2E, a reference to an entity:

                     (a)  is a reference to a natural person, a body corporate (other than an exempt public authority), a partnership or a trust; and

                     (b)  includes, in the case of a trust, a reference to the trustee of the trust.

64B  Entities connected with a corporation

Body corporate

             (1)  A body corporate is connected with a corporation if, and only if, the corporation:

                     (a)  can control, or influence materially, the body’s activities or internal affairs; or

                     (b)  is a member of the body; or

                     (c)  is in a position to cast, or to control the casting of, a vote at a general meeting of the body; or

                     (d)  has power to dispose of, or to exercise control over the disposal of, a share in the body; or

                     (e)  is financially interested in the body’s success or failure or apparent success or failure; or

                      (f)  is owed a debt by the body; or

                     (g)  is engaged by the body under a contract for services; or

                     (h)  acts as agent for the body in any transaction or dealing.

Natural person

             (2)  A natural person is connected with a corporation if, and only if, the corporation:

                     (a)  is a trustee of a trust under which the person is capable of benefiting; or

                     (b)  is engaged by the person under a contract for services; or

                     (c)  acts as agent for the person in any transaction or dealing; or

                     (d)  is an attorney of the person under a power of attorney; or

                     (e)  has appointed the person as the corporation’s attorney under a power of attorney; or

                      (f)  is given financial, business or legal advice by the person in the performance of the functions attaching to the person’s professional capacity.

Partnership

             (3)  A partnership is connected with a corporation if, and only if, the corporation:

                     (a)  is a partner in the partnership; or

                     (b)  can control, or influence materially, the partnership’s activities or internal affairs; or

                     (c)  is financially interested in the partnership’s success or failure or apparent success or failure; or

                     (d)  is a creditor of the partnership; or

                     (e)  is engaged by the partnership under a contract for services; or

                      (f)  acts as agent for the partnership in any transaction or dealing.

Trust

             (4)  A trust is connected with a corporation if, and only if, the corporation:

                     (a)  is the settlor, or one of the settlors, of the trust; or

                     (b)  has power under the terms of the trust to appoint or remove a trustee of the trust or to vary, or cause to be varied, any of the terms of the trust; or

                     (c)  is a trustee of the trust; or

                     (d)  can control, or influence materially, the activities of the trust; or

                     (e)  is capable of benefiting under the trust; or

                      (f)  is a creditor of the trustee of the trust; or

                     (g)  is engaged by the trustee of the trust under a contract for services; or

                     (h)  acts as agent for the trustee of the trust in any transaction or dealing.

65  Eligible money market dealer

                   ASIC may declare a body corporate to be an authorised dealer in the short term money market by notice published in the Gazette.

66A  Exempt bodies

                   A body corporate is an exempt body of a State or Territory if, and only if, it:

                     (a)  is not a company; and

                     (b)  is incorporated by or under a law of the State or Territory.

70  Extension of period for doing an act

                   Where this Act confers power to extend the period for doing an act, an application for the exercise of the power may be made, and the power may be exercised, even if the period, or the period as last extended, as the case requires, has ended.

73A  When a court is taken to find a person guilty of an offence

                   An Australian court finds a person guilty of an offence if, and only if:

                     (a)  the court convicts the person of the offence; or

                     (b)  the person is charged before the court with the offence and is found in the court to have committed the offence, but the court does not proceed to convict the person of the offence.

75  Inclusion in official list

                   A reference to a body corporate or other person included in an official list of a body corporate is a reference to:

                     (a)  a body corporate or other person whose name is included in that official list; or

                     (b)  a body corporate or other person whose name has been changed but whose previous name was included in that official list immediately before the change and is still so included.

79  Involvement in contraventions

                   A person is involved in a contravention if, and only if, the person:

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

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

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

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

80  Jervis Bay Territory taken to be part of the Australian Capital Territory

                   The Jervis Bay Territory is taken to be part of the Australian Capital Territory.

82  Offers and invitations to the public

                   A reference in this Act to, or to the making of, an offer to the public or to, or to the issuing of, an invitation to the public is, unless the contrary intention appears, to be construed as including a reference to, or to the making of, an offer to any section of the public or to, or to the issuing of, an invitation to any section of the public, as the case may be, whether selected as clients of the person making the offer or issuing the invitation or in any other manner and notwithstanding that the offer is capable of acceptance only by each person to whom it is made or that an offer or application may be made pursuant to the invitation only by a person to whom the invitation is issued, but a bona fide offer or invitation is not taken to be an offer or invitation to the public if it:

                     (a)  is an offer or invitation to enter into an underwriting agreement; or

                     (b)  is made or issued to a person whose ordinary business is to buy or sell shares, debentures or interests in managed investment schemes, whether as principal or agent; or

                     (c)  is made or issued to existing members or debenture holders of a corporation and relates to shares in, or debentures of, that corporation; or

                     (d)  is made or issued to existing members of a company in connection with a proposal referred to in section 507 and relates to shares in that company.

83  Officers, and other persons, in default

                   A reference, in relation to a contravention, to an officer of a body corporate, or to a person, who is in default is a reference to an officer of the body (including a person who later ceases to be such an officer), or to a person, as the case may be, who is involved in the contravention.

86  Possession

                   A thing that is in a person’s custody or under a person’s control is in the person’s possession.

88A  Public document of a body corporate

             (1)  Subject to this section, public document, in relation to a body, means:

                     (a)  an instrument of, or purporting to be signed, issued or published by or on behalf of, the body that:

                              (i)  when signed, issued or published, is intended to be lodged or is required by or under this Act or the ASIC Act to be lodged; or

                             (ii)  is signed, issued or published under or for the purposes of this Act, the ASIC Act or any other Australian law; or

                     (b)  an instrument of, or purporting to be signed or issued by or on behalf of, the body that is signed or issued in the course of, or for the purposes of, a particular transaction or dealing; or

                     (c)  without limiting paragraph (a) or (b), a business letter, statement of account, invoice, receipt, order for goods, order for services or official notice of, or purporting to be signed or issued by or on behalf of, the body.

             (2)  A thing is not a public document of a body if it:

                     (a)  is applied, or is intended or required to be applied:

                              (i)  to goods; or

                             (ii)  to a package, label, reel or thing in or with which goods are, or are to be, supplied; and

                     (b)  is so applied, or is intended or required to be so applied, for a purpose connected with the supply of the goods.

             (3)  In subsection (2):

apply to includes print on, weave in, impress on, work into, or annex, affix or attach to.

label includes a band or ticket.

package includes:

                     (a)  a covering, stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper; or

                     (b)  any other container or thing in which goods are, or are to be, packed.

88B  Qualified accountants

             (1)  For the purposes of this Act, a qualified accountant is a person covered by a declaration in force under subsection (2).

             (2)  ASIC may, in writing, declare that all members of a specified professional body, or all persons in a specified class of members of a specified professional body, are qualified accountants for the purposes of this Act.

             (3)  ASIC may, in writing, vary or revoke a declaration made under subsection (2).

89  Qualified privilege

             (1)  Where this Act provides that a person has qualified privilege in respect of an act, matter or thing, the person:

                     (a)  has qualified privilege in proceedings for defamation; or

                     (b)  is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;

as the case requires, in respect of that act, matter or thing.

             (2)  In subsection (1):

malice includes ill will to the person concerned or any other improper motive.

             (3)  Neither this section nor a provision of this Act that provides as mentioned in subsection (1) limits or affects any right, privilege or immunity that a person has, apart from this section or such a provision, as defendant in proceedings, or an action, for defamation.

90  Receivers and managers

                   A receiver of property of a body corporate is also a manager if the receiver manages, or has under the terms of the receiver’s appointment power to manage, affairs of the body.

91  Relation‑back day

                   For the purposes of this Act, the following table sets out the meaning of relation‑back day in relation to a winding up of a company or Part 5.7 body.

 

Relation‑back day

Item

If:

the relation‑back day is:

1

in the case of a company:

(a) the Court orders under section 233, 459A, 459B or 461 that the company be wound up; and

(b) immediately before the order was made, the company was under administration; and

(c) the order was made in response to an application filed at or after the beginning of the administration;

the section 513C day in relation to the administration.

2

in the case of a company:

(a) the Court orders under section 233, 459A, 459B or 461 that the company be wound up; and

(b) immediately before the order was made, the company was under administration; and

(c) the order was made in response to an application filed before the beginning of the administration;

the day on which that application was filed.

3

in the case of a company:

(a) the Court orders under section 233, 459A, 459B or 461 that the company be wound up; and

(b) immediately before the order was made, a deed of company arrangement had been executed by the company and had not yet terminated; and

(c) the order was made in response to an application filed at or after the beginning of the administration that ended when the deed was executed;

the section 513C day in relation to that administration.

4

in the case of a company:

(a) the Court orders under section 233, 459A, 459B or 461 that the company be wound up; and

(b) immediately before the order was made, a deed of company arrangement had been executed by the company and had not yet terminated; and

(c) the order was made in response to an application filed before the beginning of the administration that ended when the deed was executed;

the day on which that application was filed.

5

in the case of a company:

(a) the company resolves by special resolution that it be wound up voluntarily; and

(b) immediately before the resolution was passed, the company was under administration; and

(c) no application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration;

the section 513C day in relation to the administration.

6

in the case of a company:

(a) the company resolves by special resolution that it be wound up voluntarily; and

(b) immediately before the resolution was passed, the company was under administration; and

(c) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration, but that application was dismissed or withdrawn before the administration commenced;

the section 513C day in relation to the administration.

7

in the case of a company:

(a) the company resolves by special resolution that it be wound up voluntarily; and

(b) immediately before the resolution was passed, the company was under administration; and

(c) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration; and

(d) that application had not been dismissed or withdrawn before the administration commenced;

the day on which that application was filed.

8

in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because, at a meeting convened by the administrator of a deed of company arrangement executed by the company, the company’s creditors:

(a) passed a resolution terminating the deed of company arrangement; and

(b) also resolved under section 445E that the company be wound up;

and either:

(c) no application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; or

(d) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed, but that application was dismissed or withdrawn before the administration commenced;

the section 513C day in relation to the administration that ended when the deed was executed.

9

in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because, at a meeting convened by the administrator of a deed of company arrangement executed by the company, the company’s creditors:

(a) passed a resolution terminating the deed of company arrangement; and

(b) also resolved under section 445E that the company be wound up;

and both:

(c) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; and

(d) that application has not been dismissed or withdrawn before the first‑mentioned resolution is taken to have been passed;

the day on which that application was filed.

10

in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because the Court made an order under section 445D terminating a deed of company arrangement executed by the company, and either:

(a) no application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; or

(b) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed, but that application was dismissed or withdrawn before the administration commenced;

the section 513C day in relation to the administration that ended when the deed was executed.

11

in the case of a company:

(a) the company is taken to have passed a special resolution that it be wound up voluntarily because the Court made an order under section 445D terminating a deed of company arrangement executed by the company; and

(b) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; and

(c) that application has not been dismissed or withdrawn before the resolution is taken to have been passed;

the day on which that application was filed.

12

in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because:

(a) a deed of company arrangement executed by the company specifies particular circumstances in which the deed is to terminate and the company is to be wound up; and

(b) those circumstances exist at a particular time;

and either:

(c) no application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; or

(d) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed, but that application was dismissed or withdrawn before the administration commenced;

the section 513C day in relation to the administration that ended when the deed was executed.

13

in the case of a company, the company is taken to have passed a special resolution that it be wound up voluntarily because:

(a) a deed of company arrangement executed by the company specifies particular circumstances in which the deed is to terminate and the company is to be wound up; and

(b) those circumstances exist at a particular time;

and both:

(c) an application for an order under section 233, 459A, 459B or 461 that the company be wound up was filed before the beginning of the administration that ended when the deed was executed; and

(d) that application had not been dismissed or withdrawn before the resolution is taken to have been passed;

the day on which that application was filed.

14

because of Division 1A of Part 5.6, the winding up is taken to have begun on the day when an order that the company or body be wound up was made;

the day on which the application for the order was filed.

15

any other case applies;

the day on which the winding up is taken, because of Division 1A of Part 5.6, to have begun.

92  Securities

             (1)  Subject to this section, securities means:

                     (a)  debentures, stocks or bonds issued or proposed to be issued by a government; or

                     (b)  shares in, or debentures of, a body; or

                     (c)  interests in a managed investment scheme; or

                     (d)  units of such shares;

but does not include:

                      (f)  a derivative (as defined in Chapter 7), other than an option to acquire by way of transfer a security covered by paragraph (a), (b), (c) or (d); or

                     (g)  an excluded security.

Note:          A derivative does not include an option to acquire a security by way of issue (see the combined effect of paragraph 761D(3)(c), paragraph 764A(1)(a) and paragraph (d) of the definition of security in section 761A).

             (2)  The expression securities, when used in relation to a body, means:

                     (a)  shares in the body; or

                     (b)  debentures of the body; or

                     (c)  interests in a managed investment scheme made available by the body; or

                     (d)  units of such shares;

but does not include:

                     (e)  a derivative (as defined in Chapter 7), other than an option to acquire by way of transfer a security covered by paragraph (a), (b), (c) or (d); or

                      (f)  an excluded security.

Note:          A derivative does not include an option to acquire a security by way of issue (see the note to subsection (1)).

             (3)  In Chapters 6 to 6CA (inclusive) and Part 1.2A:

securities means:

                     (a)  shares in a body; or

                     (b)  debentures of a body; or

                     (c)  interests in a registered managed investment scheme; or

                     (d)  legal or equitable rights or interests in:

                              (i)  shares; or

                             (ii)  debentures; or

                            (iii)  interests in a registered managed investment scheme;

                     (e)  options to acquire (whether by way of issue or transfer) a security covered by paragraph (a), (b), (c) or (d).

It does not cover:

                      (f)  a derivative (as defined in Chapter 7), other than an option to acquire by way of transfer a security covered by paragraph (a), (b), (c) or (d); or

                     (g)  a market traded option.

Note:          A derivative does not include an option to acquire a security by way of issue (see the note to subsection (1)).

Note:          Section 9 defines body.

             (4)  In Chapter 6D securities has the meaning given by section 700 and in Chapter 7 security has the meaning given by section 761A.

95A  Solvency and insolvency

             (1)  A person is solvent if, and only if, the person is able to pay all the person’s debts, as and when they become due and payable.

             (2)  A person who is not solvent is insolvent.

Division 8Miscellaneous interpretation rules

100  Address of registered office etc.

             (1)  Where a provision of this Act requires a notice to be lodged of, or information in an application to specify:

                     (a)  the address of an office, or of a proposed office, of a body corporate or other person; or

                     (b)  a change in the situation of an office of a body corporate or other person;

the notice:

                     (c)  must specify the full address, or the full new address, as the case requires, of the relevant office including, where applicable, the number of the room and of the floor or level of the building on which the office is situated; and

                     (d)  where the notice or application relates to the address or situation of an office of a body corporate and the address specified in accordance with paragraph (a) is the address of premises that are not to be occupied by the body corporate—must include a written statement to the effect that the person who occupies those premises has consented in writing to the address being specified in the notice or application and has not withdrawn that consent.

             (2)  ASIC may require a person who has lodged a notice or application that includes a statement under paragraph (1)(d) to produce to ASIC the consent referred to in the statement.

100A  Operation of certain laws relating to instruments on which stamp duty has not been paid

                   Nothing in this Act affects the operation of any provision of any law:

                     (a)  relating to the admissibility in evidence, or any other use, in any proceedings, of a document in respect of which any applicable stamp duty has not been paid; or

                     (b)  prohibiting the registration by a company of a transfer of securities if any stamp duty applicable in respect of the transfer has not been paid.

101  Amount of stock representing a number of shares

                   In relation to a body corporate the whole or a portion of whose share capital consists of stock, a reference to a number of shares (including a number expressed as a percentage) is, in relation to an amount of stock, a reference to the amount of stock that represents that number of shares.

102  Applications to be in writing

                   An application to ASIC for the issuing of a document or the doing of any other act or thing by ASIC under this Act must be in writing.

Note:          For electronic lodgment of documents with ASIC, see section 352.

102B  In Australia or elsewhere, in this jurisdiction or elsewhere etc.

             (1)  The expression in Australia or elsewhere, or a similar expression, does not limit the generality of the expression in this jurisdiction or elsewhere or a similar expression.

             (2)  The expression outside this jurisdiction includes places outside Australia.

102C  In Australia

                   In Australia means in Australia (whether in this jurisdiction or not).

Note:          This definition is needed if there is a State that is not a referring State. If all the States are referring States, every place in Australia will also be in this jurisdiction.

103  Effect of certain contraventions of this Act

             (1)  This section has effect except so far as this Act otherwise provides.

             (2)  An act, transaction, agreement, instrument, matter or thing is not invalid merely because of:

                     (a)  a contravention of section 115, 208, 209, 601CA or 601CD; or

                     (b)  a failure to comply with a requirement of this Act that a person cause a notice, or a copy of a document, to be published in the Gazette or in a newspaper.

Note:          Section 1101H provides that a failure to comply with requirements of Chapter 7 generally does not affect the validity or enforceability of any transaction, contract or other arrangement.

             (4)  In this section:

invalid includes void, voidable and unenforceable.

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

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

                   Where, in accordance with a provision of this Act other than the replaceable rules, a person requires another person to do, or prohibits another person from doing, a particular act, that provision is taken to require the other person to comply with the requirement or prohibition, as the case may be.

105  Calculation of time

                   Without limiting subsection 36(1) of the Acts Interpretation Act 1901, in calculating how many days a particular day, act or event is before or after another day, act or event, the first‑mentioned day, or the day of the first‑mentioned act or event, is to be counted but not the other day, or the day of the other act or event.

106  Performance of functions by Commission delegate

                   For the purpose of the performance of a function, or the exercise of a power, under this Act by a Commission delegate, a reference to ASIC in a provision of this Act relating to the performance of the function, or the exercise of the power, includes a reference to the Commission delegate.

107  Notice in relation to top 20 members of a class

                   For the purposes of subsection 163(3B), section 178B and paragraph 601BC(2)(lc), if 2 or more members in the top 20 members of a class of shares each hold the same number of shares, details of each of those members must be included in any notice given in relation to those provisions.

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

                   In determining whether a majority in value of creditors, or a particular proportion in value of creditors, has passed a resolution or done any other act or thing, if a creditor’s debt consists of a number of whole dollars and a part of a dollar, the part of the dollar is to be disregarded.

109  References to persons, things and matters

             (1)  Except so far as the contrary intention appears, a provision of this Act is to be interpreted in such a manner that any 2 or more references in the provision are capable of having the same referent or referents, or of having a referent or referents in common, as the case requires.

             (2)  In subsection (1), referent, in relation to a reference in a provision, means:

                     (a)  in so far as the reference is interpreted as being in the singular number—a person to whom, or a thing or matter to which; or

                     (b)  in so far as the reference is interpreted as being in the plural number—any one or 2 or more persons to whom, or of 2 or more things or matters to which;

the reference is taken, in the application of the provision, to refer.

109X  Service of documents

             (1)  For the purposes of any law, a document may be served on a company by:

                     (a)  leaving it at, or posting it to, the company’s registered office; or

                     (b)  delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or

                     (c)  if a liquidator of the company has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or

                     (d)  if an administrator of the company has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC.

             (2)  For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary:

                     (a)  in their capacity as a director or company secretary; or

                     (b)  for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary.

             (3)  Subsections (1) and (2) do not apply to a process, order or document that may be served under section 9 of the Service and Execution of Process Act 1992.

             (6)  This section does not affect:

                     (a)  any other provision of this Act, or any provision of another law, that permits; or

                     (b)  the power of a court to authorise;

a document to be served in a different way.

             (7)  This section applies to provisions of a law dealing with service whether it uses the expression “serve” or uses any other similar expression such as “give” or “send”.

Part 1.2ADisclosing entities

Division 1Object of Part

111AA  Object of Part

                   The object of this Part is:

                     (a)  to define disclosing entity and other key terms relevant to disclosing entities (this is done in Division 2); and

                     (b)  to outline the significance for this Act of being a disclosing entity (this is done in Division 3); and

                     (c)  to provide for exemptions from, and modifications of, the special requirements imposed by this Act in relation to disclosing entities (this is done in Division 4).

Division 2Definitions

111AB  Terms defined in Division

                   This Division contains definitions of the following terms:

                     (a)  disclosing entity (section 111AC);

                     (b)  ED securities (section 111AD);

                     (c)  ED securities of a disclosing entity (section 111AK);

                     (d)  listed disclosing entity (subsection 111AL(1));

                     (e)  quoted ED securities (section 111AM);

                      (f)  unlisted disclosing entity (subsection 111AL(2)).

111AC  Disclosing entity

             (1)  If any securities of a body (except interests in a managed investment scheme) are ED securities, the body is a disclosing entity for the purposes of this Act.

             (2)  If any interests in a managed investment scheme are ED securities, the undertaking to which the interests relate is a disclosing entity for the purposes of this Act.

111AD  ED securities

             (1)  Securities of a body are ED securities (short for “enhanced disclosure securities”) for the purposes of this Act if, and only if:

                     (a)  they are ED securities under section 111AE, 111AF, 111AFA, 111AG or 111AI; and

                     (b)  they are not declared under section 111AJ not to be ED securities.

             (2)  For the purposes of sections 111AE, 111AF, 111AG and 111AI, a class of shares or debentures is taken to include units of shares or debentures in that class.

111AE  Securities of body or undertaking that is included in a licensed market’s official list

             (1)  If:

                     (a)  a body corporate is, with its agreement, consent or acquiescence, included in the official list of a prescribed financial market; and

                     (b)  the market’s listing rules (according to their terms) apply to the body in relation to a class (which may be some or all) of securities issued by the body;

securities issued by the body in that class are ED securities, and that market is a listing market in relation to that body.

          (1A)  If:

                     (a)  an undertaking to which interests in a registered scheme relates is, with the agreement, consent or acquiescence of the responsible entity, included in the official list of a prescribed financial market; and

                     (b)  the market’s listing rules (according to their terms) apply to the undertaking in relation to a class (which may be some or all) of managed investment products that relate to the scheme;

managed investment products in that class that relate to the scheme are ED securities, and that market is a listing market in relation to the undertaking.

             (2)  Subsections (1) and (1A) do not apply to securities of a body if:

                     (a)  the body is a public authority of the Commonwealth or an instrumentality or agency of the Crown in right of the Commonwealth; and

                     (b)  the only securities issued by the body that would otherwise be ED securities because of subsection (1) or (1A) are debentures; and

                     (c)  both the repayment of principal, and the payment of interest, in respect of those debentures is guaranteed by the Commonwealth.

             (3)  Subsections (1) and (1A) do not apply to securities of a body that is:

                     (a)  a public authority of a State or Territory; or

                     (b)  an instrumentality or agency of the Crown in right of a State or Territory.

111AF  Securities (except debentures and managed investment products) held by 100 or more persons

             (1)  Securities (except debentures or managed investment products) in a class of securities of a body are ED securities if:

                     (a)  a disclosure document in relation to securities in that class has been lodged with ASIC under Chapter 6D; and

                     (b)  securities in that class have been issued pursuant to the disclosure document; and

                     (c)  after an issue of securities in that class pursuant to the disclosure document, 100 or more persons held securities in that class; and

                     (d)  securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (c).

             (2)  Securities (except debentures and managed investment products) in a class of securities of a body are ED securities if securities in that class have been issued under a recognised offer and the offeror’s records indicate that 100 or more people who reside in this jurisdiction have held securities in that class (whether or not as a result of the recognised offer) at all times since the issue.

111AFA  Managed investment products held by 100 or more persons

             (1)  Managed investment products in a class of managed investment products issued by a body are ED securities if 100 or more people hold managed investment products in that class as a result of offers that gave rise to obligations to give Product Disclosure Statements (whether or not all in the same terms) under Chapter 7.

             (2)  Interests in a class of interests in a managed investment scheme issued by a body are ED securities if interests in that class have been issued under a recognised offer and the offeror’s records indicate that 100 or more people who reside in this jurisdiction have held interests in that class (whether or not as a result of the recognised offer) at all times since the issue.

111AG  Securities issued as consideration for an acquisition under an off‑market takeover bid or Part 5.1 compromise or arrangement

             (1)  Securities (except debentures) in a class of securities of a body are ED securities if:

                     (a)  securities in that class have been issued by the body as consideration for offers under an off‑market bid; and

                     (b)  after an issue of securities in that class under the off‑market bid, 100 or more persons held securities in that class; and

                     (c)  securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (b).

             (2)  Securities in a class of securities of a body are ED securities if:

                     (a)  securities in that class have been issued as consideration for the acquisition or cancellation of securities of another body pursuant to a compromise or arrangement under Part 5.1; and

                     (b)  securities in that class, or those or any other securities of the other body, were ED securities immediately before securities in that class were first issued pursuant to the compromise or arrangement; and

                     (c)  after an issue of securities in that class pursuant to the compromise or arrangement, 100 or more persons held securities in that class; and

                     (d)  securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (c).

111AH  When a person holds securities for the purposes of sections 111AF, 111AFA and 111AG

             (1)  For the purposes of sections 111AF, 111AFA and 111AG, a person holds securities if, and only if:

                     (a)  the person is registered as the holder of the securities in a register under section 169, 170, 171 or 601CZB; or

                     (b)  the person is entitled to be so registered.

             (2)  For the purposes of sections 111AF, 111AFA and 111AG, joint holders of securities count as one person.

111AI  Debentures

                   Debentures of a borrower are ED securities if:

                     (a)  section 283AA requires the borrower to appoint a trustee; or

                     (b)  section 283AA does not apply to the borrower only because the offer of the debentures to which section 283AA would otherwise have applied is a recognised offer.

111AJ  Regulations may declare securities not to be ED securities

             (1)  The regulations may declare specified securities of bodies not to be ED securities.

             (2)  Regulations in force for the purposes of subsection (1) have effect accordingly, despite anything else in this Division.

111AK  ED securities of a disclosing entity

                   For the purposes of this Act, ED securities because of which (having regard to section 111AC) a disclosing entity is such an entity are ED securities of the entity.

111AL  Listed or unlisted disclosing entity

             (1)  For the purposes of this Act, a disclosing entity is a listed disclosing entity if all or any ED securities of the entity are quoted ED securities.

             (2)  For the purposes of this Act, a disclosing entity that is not a listed disclosing entity is an unlisted disclosing entity.

111AM  Quoted ED securities

                   For the purposes of this Act, ED securities are quoted ED securities if they are ED securities because of section 111AE.

Division 3Significance of being a disclosing entity

111AN  Division contains outline of significance of being a disclosing entity

                   This Division outlines the significance for this Act of being a disclosing entity.

111ANA  Requirements relating to remuneration recommendations in relation to key management personnel

                   There are special requirements in Part 2D.8 for remuneration recommendations in relation to key management personnel for disclosing entities that are companies.

111AO  Accounting requirements

                   A disclosing entity incorporated or formed in Australia has to prepare financial statements and reports for half‑years as well as full financial years. These requirements are set out in Chapter 2M.

111AP  Continuous disclosure requirements

             (1)  A disclosing entity is subject to the continuous disclosure requirements of sections 674 and 675.

111AQ  Prospectus relief

                   Section 713 applies (subject to certain qualifications) to prospectuses for quoted ED securities of disclosing entities. The section’s requirements for the content of prospectuses are less comprehensive than those that apply to other prospectuses under section 710.

111AQA  Product Disclosure Statement relief

                   Obligations that apply to disclosing entities can be taken into account in deciding what information should be included in a Product Disclosure Statement—see section 1013FA and paragraph 1013F(2)(d).

Division 4Exemptions and modifications

111AR  Meaning of disclosing entity provisions

             (1)  For the purposes of this Division, the disclosing entity provisions are the provisions of the following:

                     (a)  Chapter 2M as it applies to disclosing entities;

                     (d)  sections 674 and 675.

             (2)  A reference in subsection (1) to a Part, Division or section includes a reference to regulations in force for the purposes of the Part, Division or section.

111AS  Exemptions by regulations

             (1)  The regulations may exempt specified persons from all or specified disclosing entity provisions:

                     (a)  either generally or as otherwise specified; and

                     (b)  either unconditionally or subject to specified conditions.

             (2)  Without limiting subsection (1), an exemption may relate to specified securities.

111AT  Exemptions by ASIC

             (1)  ASIC may, by writing, exempt specified persons from all or specified disclosing entity provisions:

                     (a)  either generally or as otherwise specified; and

                     (b)  either unconditionally or subject to specified conditions.

             (2)  Without limiting subsection (1), an exemption may relate to specified securities.

             (3)  ASIC must cause a copy of an exemption to be published in the Gazette.

111AU  Enforcing conditions of exemptions

             (1)  A person must not intentionally or recklessly contravene a condition to which an exemption under section 111AS or 111AT is subject.

             (2)  If a person contravenes such a condition, the Court may, on the application of ASIC, order the person to comply with the condition.

111AV  Modifications by regulations

             (1)  The regulations may make modifications of all or specified disclosing entity provisions.

             (2)  Without limiting subsection (1), a modification may relate to specified securities.

111AW  Exemptions and modifications have effect

                   Exemptions and modifications under this Division have effect accordingly.

111AX  Effect of Division

                   Nothing in this Division limits, or is limited by, any other exemption or modification power (for example, section 340, 341 or 741).

Part 1.4Technical provisions about aids for readers

  

111J  Small business guide

             (1)  If, because of:

                     (a)  regulations made under this Act; or

                     (b)  instruments issued by ASIC under this Act;

the small business guide as set out in Part 1.5 has become out of date, the regulations may set out modifications of the guide that would bring it up to date. The guide then is to be read as if it were so modified.

             (2)  The small business guide is divided into sections (numbered 1, 2, 3) and the sections are divided into paragraphs (numbered 1.1, 1.2, 1.3…). For example, a reference in the guide to 3.1 is a reference to paragraph 3.1 of the guide.

Part 1.5Small business guide

  

                   This guide summarises the main rules in the Corporations Act (the Corporations Act 2001) that apply to proprietary companies limited by shares—the most common type of company used by small business. The guide gives a general overview of the Corporations Act as it applies to those companies and directs readers to the operative provisions in the Corporations Act.

                   The notes in square brackets at the end of paragraphs in the guide indicate the main provisions of the Corporations Act, the regulations made under the Corporations Act, and ASIC Practice Notes that are relevant to the information in the paragraphs.

                   Other Commonwealth, State and Territory laws also impose obligations on proprietary companies and their operators.

1  What registration means

1.1 Separate legal entity that has its own powers

                   As far as the law is concerned, a company has a separate legal existence that is distinct from that of its owners, managers, operators, employees and agents. A company has its own property, its own rights and its own obligations. A company’s money and other assets belong to the company and must be used for the company’s purposes.

                   A company has the powers of an individual, including the powers to:

•    own and dispose of property and other assets

•    enter into contracts

•    sue and be sued.

                   Once a company is registered, its separate legal status, property, rights and liabilities continue until ASIC (Australian Securities and Investments Commission) deregisters the company.

[sections 119, 124—125, 601AA—601AD]

1.2 Limited liability of shareholders

                   Shareholders of a company are not liable (in their capacity as shareholders) for the company’s debts. As shareholders, their only obligation is to pay the company any amount unpaid on their shares if they are called upon to do so. However, particularly if a shareholder is also a director, this limitation may be affected by other laws and the commercial practices discussed in 1.3 and 1.4.

[section 516]

1.3 Director’s liability for company’s debts

                   A director of a company may be liable for debts incurred by the company at a time when the company itself is unable to pay those debts as they fall due.

                   A director of a company may be liable to compensate the company for any losses the company suffers from a breach of certain of the director’s duties to the company (see 5.3).

                   In addition to having liability for the company’s debts or to pay compensation to the company, a director may also be subject to a civil penalty.

                   If a company holds property on trust, a director of the company may be liable in some circumstances for liabilities incurred by the company as trustee.

[sections 197, 344, 588G, 588J, 588M, 1317H]

1.4 Director’s liability as guarantor/security over personal assets

                   As a matter of commercial practice, a bank, trade creditor or anyone else providing finance or credit to a company may ask a director of the company:

•    for a personal guarantee of the company’s liabilities; and

•    for some form of security over their house or personal assets to secure the performance by the company of its obligations.

                   The director of a company may, for example, be asked by a bank to give a mortgage over their house to secure the company’s repayment of a loan. If the company does not repay the loan as agreed with the bank, the director may lose the house.

1.5 Continuous existence

                   A company continues to exist even if 1 or more of its shareholders or directors sells their shares, dies or leaves the company. If a company has only 1 shareholder who is also the only director of the company and that person dies, their personal representative is able to ensure that the company continues to operate.

[sections 119, 224A]

1.6 Rules for the internal management of a company

                   The Corporations Act contains a basic set of rules for the internal management of a company (appointments, meetings etc.).

                   Some of these rules are mandatory for all companies. There are a few special rules for single shareholder/single director companies.

                   Other internal management rules in the Corporations Act are replaceable rules. The replaceable rules do not apply to:

•    a single shareholder/single director company; or

•    a company that had a constitution before the introduction of the replaceable rules regime and has not repealed it.

                   A company does not need to have a separate constitution of its own; it can simply take advantage of the rules in the Corporations Act. The company will need a constitution only if it wants to displace, modify or add to the replaceable rules.

[sections 134‑141 and 198E]

1.7 How a company acts

                   A company does not have a physical existence. It must act through other people.

                   Individual directors, the company secretary, company employees or agents may be authorised to enter into contracts that bind the company (see 7).

                   In some circumstances, a company will be bound by something done by another person (see 1.8).

1.8 Directors

                   The directors of a company are responsible for managing the company’s business. It is a replaceable rule (see 1.6) that generally the directors may exercise all the powers of the company except a power that the Corporations Act, a replaceable rule or a provision of the company’s constitution (if any) requires the company to exercise in general meeting.

                   The only director of a company who is also the only shareholder is responsible for managing the company’s business and may exercise all of the company’s powers.

                   The Corporations Act sets out rules dealing with the calling and conduct of directors’ meetings. Directors must keep a written record (minutes) of their resolutions and meetings.

                   There are 2 ways that directors may pass resolutions:

•    at a meeting; or

•    by having all of the directors record and sign their decision.

                   If a company has only 1 director, the sole director may also pass a resolution by recording and signing their decision.

[sections 198A, 198E, 202C, subsection 202F(1), sections 248A‑248G, 251A]

1.9 Shareholders

                   The shareholders of a company own the company, but the company has a separate legal existence and the company’s assets belong to the company.

                   Shareholders can make decisions about the company by passing a resolution, usually at a meeting. A “special resolution” usually involves more important questions affecting the company as a whole or the rights of some or all of its shareholders.

                   There are 2 ways that shareholders may pass a resolution:

•    at a meeting; or

•    by having all of the shareholders record and sign their decision.

                   If a meeting is held, an ordinary resolution must be passed by a majority of the votes cast by shareholders of the company entitled to vote on the resolution at the meeting in person or by proxy (if proxies are allowed). A special resolution must be passed by at least 75% of the votes cast by shareholders of the company entitled to vote on the resolution and who vote at the meeting in person or by proxy (if proxies are allowed).

                   The sole shareholder of a company may pass a resolution by recording and signing their decision.

                   A company must keep a written record (minutes) of the members’ resolutions and meetings.

[sections 9 (special resolution), 249A, 249B, 249L, 251A]

1.10 What others can assume about the company

                   Anyone who does any business with the company is entitled to assume that the company has a legal right to conduct that business unless the person knows, or suspects, otherwise. For example, an outsider dealing with the company is entitled to assume:

•    that a person who is shown in a notice lodged with ASIC as being the director or company secretary of a company has been properly appointed and is authorised to act for the company; and

•    that a person who is held out by the company to be a director, company secretary or agent of the company has been properly appointed and is authorised to act for the company.

[sections 128—130]

2  The company structure for small business

2.1 Proprietary company for small business

                   Generally, a proprietary company limited by shares is the most suitable company for use by small business. Such a proprietary company must have a least 1 shareholder but no more than 50 shareholders (not counting employee shareholders). It may have 1 or more directors.

[sections 112—113]

3  Setting up a new company

                   The operators of small businesses can either buy “shelf” companies or set up new companies themselves.

3.1 “Shelf” companies

                   The operator of a small business may find it more convenient to buy a “shelf” company (a company that has already been registered but has not traded) from businesses which set up companies for this purpose or from some legal or accounting firms.

3.2 Setting up a company

                   To set up a new company themselves, the operator must apply to ASIC for registration of the company.

                   A proprietary company limited by shares must have at least 1 shareholder.

                   To obtain registration, a person must lodge a properly completed application form with ASIC. The form must set out certain information including details of every person who has consented to be a shareholder, director or company secretary of the company.

                   The company comes into existence when ASIC registers it.

[sections 117—119, 135—136, 140]

3.3 ACN and name

                   When a company is registered, ASIC allocates to it a unique 9 digit number called the Australian Company Number (ACN). (For use of the ACN see 4.1).

                   In practice, a new company must have a name that is different from the name of a company that is already registered. A proprietary company limited by shares must have the words “Proprietary Limited” as part of its name. Those words can be abbreviated to “Pty Ltd”.

                   A proprietary company may adopt its ACN as its name. If it does so, its name must also contain the words “Australian Company Number” (which can be abbreviated to “ACN”). For example, the company’s name might be “ACN 123 456 789 Pty Ltd”.

[sections 119, 147—161]

3.4 Contracts entered into before the company is registered

                   A company can ratify a contract entered into by someone on its behalf or for its benefit before it was registered. If the company does not ratify the contract, the person who entered into the contract may be personally liable.

[sections 131—133]

3.5 First shareholders, directors and company secretary

                   A person listed with their consent as a shareholder, director or company secretary in the application for registration of the company becomes a shareholder, director or company secretary of the company on its registration.

                   The same person may be both a director of the company and the company secretary.

                   See 5.1 and 5.2 for directors and 5.4 for company secretaries. See 6.1 for shareholders.

[section 120]

3.6 Issuing shares

                   It is a replaceable rule (see 1.6) that, before issuing new shares, a company must first offer them to the existing shareholders in the proportions that the shareholders already hold. A company may issue shares at a price it determines.

[sections 254B, 254D]

3.7 Registered office

                   A company must have a registered office in Australia and must inform ASIC of the location of the office. A post office box cannot be the registered office of a company. The purpose of the registered office is to have a place where all communications and notices to the company may be sent.

                   If the company does not occupy the premises where its registered office is located, the occupier of the premises must agree in writing to having the company’s registered office located there.

                   A proprietary company is not required to open its registered office to the public but this does not affect its obligation to make documents available for inspection.

                   The company must notify ASIC of any change of address of its registered office.

[sections 100, 142, 143, 173, 1300]

3.8 Principal place of business

                   If a company has a principal place of business that is different from its registered office, it must notify ASIC of the address of its principal place of business and of any changes to that address.

[sections 117, 146]

3.9 Registers kept by the company

                   A company must keep registers, including a register of shareholders. A company must keep its registers at:

•    the company’s registered office; or

•    the company’s principal place of business; or

•    a place (whether on premises of the company or of someone else) where the work in maintaining the register is done; or

•    another place approved by ASIC.

                   A register may be kept either in a bound or looseleaf book or on computer.

                   If a register is kept on computer, its contents must be capable of being printed out in hard copy.

[sections 172, 1300, 1301, 1306]

3.10 Register of shareholders

                   A company must keep in its register of shareholders such information as:

•    the names and addresses of its shareholders; and

•    details of shares held by individual shareholders.

[sections 168—169]

4  Continuing obligations after the company is set up

                   The Corporations Act and other laws impose obligations on companies themselves and on their directors and company secretaries. Some of the more important obligations imposed under the Corporations Act are discussed below.

4.1 Use of company name and ACN

                   The name of a company must be shown at all the company’s business premises (including its registered office) that are open to the public. The company’s name and its ACN or ABN (if the last 9 digits are the same, and in the same order, as the last 9 digits of its ACN) must appear:

•    on some of its public documents; and

•    on its cheques and negotiable instruments; and

•    on all documents lodged with ASIC; and

•    if it has one, on its common seal.

[sections 123, 144, 147—156,
ASIC Practice Note 47]

4.2 Extract of particulars

                   Each year, ASIC issues each company with an extract of particulars within 2 weeks of the company’s review date (which is generally the anniversary of the company’s registration). The extract includes details recorded on ASIC’s database such as:

•    names and addresses of each director and company secretary;

•    issued shares and options granted;

•    details of its shareholders;

•    address of its registered office;

•    address of its principal place of business.

                   If any of the details are not correct as at the date the extract is received, the company must correct those details.

                   The correction may be lodged with ASIC on a printed form or, if an agreement is in place to lodge electronically, in accordance with the agreement.

[Sections 346A and 346C, 352]

4.3 Review fee

                   A company must pay a review fee to ASIC each year.

[Corporations (Review Fees) Act 2003]

4.4 Notification to ASIC of changes

                   The company must notify ASIC if certain basic changes to the company occur. The following table sets out these notification requirements.

 

Notification requirements

 

If...

the company must notify ASIC of the change...

see section...

1

a company issues shares

within 28 days after the issue

254X

2

a company changes the location of a register

within 7 days after the change

172

3

a company changes the address of its registered off