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SR 2001 No. 192 Regulations as amended, taking into account amendments up to Australian Securities and Investments Commission Amendment Regulations 2010 (No. 3)
Principal Regulations. These Regulations repeal the Australian Securities and Investments Commission Regulations 1990.
Administered by: Treasury
Registered 22 Nov 2010
Start Date 28 Jun 2010
End Date 12 Dec 2010

Australian Securities and Investments Commission Regulations 2001

Statutory Rules 2001 No. 192 as amended

made under the

This compilation was prepared on 19 November 2010
taking into account amendments up to SLI 2010 No. 278

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

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

 


Contents

Note about numbering                                                                                 5

Part 1                    Preliminary                                                                 

                        1     Name of Regulations [see Note 1]                                     5

                      1A     Commencement [see Note 1]                                           5

                        2     Definitions                                                                       5

                      2A     Territorial application of Act                                               5

                    2AC     Professional accounting bodies                                         6

                      2B     Financial products: credit facility                                       7

                      2C     Meaning of financial service — off‑market offers for financial products   9

                      2D     Circumstances in which a person is taken to be provided a traditional trustee company service  10

Part 2                    General                                                                        

                      3A     Prescribed schemes (Act s 12GNA (2) (a))                       11

                        3     Prescribed agencies (Act s 18 (2) (d))                              11

                        4     Form of notice requiring assistance and appearance for examination    12

                        5     Notice to produce books                                                 12

                        6     Evidence of authority                                                      12

                        7     Summons to witnesses to appear before Commission       12

                        8     Allowances and expenses payable to examinees and witnesses         12

                    8AA     Prescribed professional disciplinary bodies                       13

                      8A     Commission may disclose confidential information to certain bodies corporate  13

                      8B     Prescribed body                                                             13

                       11     Summons to witnesses to appear before Disciplinary Board 13

                       12     Allowances and expenses payable for attendance at hearings of Disciplinary Board      13

Part 3                    Panel Procedures                                                     

Division 1                Preliminary                                                                    

                       13     Objects of this Part                                                        14

                       14     Application of this Part                                                   14

                       15     Definitions for Part 3                                                       14

                       16     Powers of Panel                                                             15

Division 2                Applications                                                                   

                       18     Reference of matters to the Commission by the Panel       16

                       19     Making of applications                                                    16

                       20     Consideration of applications                                           16

Division 3                Decisions to conduct proceedings                                  

                       21     Notice of decision                                                          17

                       22     Decision to hold inquiry                                                  17

Division 4                Submissions                                                                   

                       23     Expressions of interest by non‑parties                             18

                       24     Panel may accept submissions from persons expressing interest        18

                       25     Submissions                                                                 19

                       26     Disregard of certain submissions                                     19

                       27     Abuse of Panel procedures to be noted                            19

                       28     Lodgment and distribution of submissions                        19

                       30     Panel may invite further submissions                               20

                       34     Submissions that are not lodged in time                           20

Division 5                Conferences                                                                   

                       35     Purpose of conferences                                                  21

                       37     Conduct of conferences                                                  21

                       38     Procedures at conferences                                             21

                       39     Addresses to the Panel at conferences                            22

                       40     Witnesses                                                                     22

                       41     Misbehaviour at conferences                                           23

Division 6                Other matters                                                                 

                       42     Summons to witnesses by the Panel                               23

                       43     Allowances and expenses payable for attendances           23

Part 4                    Repeal of old ASIC Regulations                           

                       44     Repeal of the Australian Securities and Investments Commissions Regulations 1990    24

Part 5                    Clearing and settlement facilities                         

                       45     Meaning of clearing and settlement facility                       25

                       46     Conduct that does not constitute operating a clearing and settlement facility    25

                       47     Financial transaction reports                                           26

Part 6                    Financial Reporting Panel                                      

                       48     Form for written summons (Act s 239CE)                         28

Schedule 1             Forms                                                                          29

Form 1                     Notice requiring appearance at an examination or reasonable assistance in connection with an investigation                                                                  29

Form 2                     Notice requiring the production of books                           31

Form 3                     Summons to witness                                                      32

Form 4                     Summons to witness                                                      33

Schedule 2             Witnesses fees and allowances for expenses              35

Schedule 3             Bodies corporate to which information may be disclosed            36

Part 1                      Australian bodies corporate                                             36

Part 2                      Foreign bodies corporate                                                37

Notes                                                                                                          41

 


Note about numbering

These Regulations are made under the Australian Securities and Investments Commission Act 2001. To assist users of these Regulations, the structure and numbering of these Regulations follow, as far as possible, the pattern of the Australian Securities and Investments Commission Regulations 1990 that were made under the Australian Securities and Investments Commission Act 1989. Some gaps in the numbering of these Regulations appear because there were gaps in the numbering of the Australian Securities and Investments Commission Regulations 1990. In addition, a commencement provision that was not in the Australian Securities and Investments Commission Regulations 1990 is included in these Regulations.

Part 1                 Preliminary

  

1              Name of Regulations [see Note 1]

                These Regulations are the Australian Securities and Investments Commission Regulations 2001.

1A           Commencement [see Note 1]

                These Regulations commence on the same day as the Australian Securities and Investments Commission Act 2001.

2              Definitions

                In these Regulations, unless the contrary intention appears:

Act means the Australian Securities and Investments Commission Act 2001.

Form means a form set out in Schedule 1.

2A           Territorial application of Act

         (1)   For subsection 4 (2) of the Act, the Act applies in each external Territory in accordance with this regulation.

         (2)   For the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands:

                (a)    Division 2 of Part 2 of the Act applies in relation to:

                          (i)    a financial product; and

                         (ii)    a financial service; and

               (b)    the remainder of the Act applies in relation to:

                          (i)    a superannuation product within the meaning of section 761A of the Corporations Act; and

                         (ii)    an RSA product within the meaning of section 761A of the Corporations Act; and

                         (iii)    a financial service that relates to a superannuation product within the meaning of section 761A of the Corporations Act; and

                        (iv)    a financial service that relates to an RSA product within the meaning of section 761A of the Corporations Act.

         (3)   For an external Territory other than the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, the Act applies in relation to:

                (a)    a superannuation product within the meaning of section 761A of the Corporations Act; and

               (b)    an RSA product within the meaning of section 761A of the Corporations Act; and

                (c)    a financial service that relates to a superannuation product within the meaning of section 761A of the Corporations Act; and

               (d)    a financial service that relates to an RSA product within the meaning of section 761A of the Corporations Act.

2AC        Professional accounting bodies

                For the definition of professional accounting body in subsection 5 (1) of the Act, the following bodies are prescribed:

                (a)    CPA Australia;

               (b)    The Institute of Chartered Accountants in Australia;

                (c)    National Institute of Accountants.

2B           Financial products: credit facility

         (1)   For paragraph 12BAA (7) (k) of the Act, each of the following is a credit facility:

                (a)    the provision of credit:

                          (i)    for any period; and

                         (ii)    with or without prior agreement between the credit provider and the debtor; and

                         (iii)    whether or not both credit and debit facilities are available;

               (b)    a facility:

                          (i)    known as a bill facility; and

                         (ii)    under which a credit provider provides credit by accepting, drawing, discounting or indorsing a bill of exchange or promissory note;

                (c)    the provision of credit by a pawnbroker in the ordinary course of a pawnbroker’s business (being a business which is being lawfully conducted by the pawnbroker);

               (d)    the provision of credit by the trustee of the estate of a deceased person by way of an advance to a beneficiary or prospective beneficiary of the estate;

                (e)    the provision of credit by an employer, or a related body corporate of an employer, to an employee or former employee (whether or not it is provided to the employee or former employee with another person);

                (f)    the provision of a mortgage that secures obligations under a credit contract (other than a lien or charge arising by operation of any law or by custom);

                (g)    a guarantee related to a mortgage mentioned in paragraph (f);

                (h)    a guarantee of obligations under a credit contract;

                 (i)    a facility for making non‑cash payments (within the meaning of section 763D of the Corporations Act) if payments made using the facility will all be debited to a facility mentioned in paragraphs (a) to (h).

         (2)   The provision of consumer credit insurance that includes a contract of general insurance for the Insurance Contracts Act 1984 is not a credit facility.

         (3)   In this regulation:

credit means a contract, arrangement or understanding:

                (a)    under which:

                          (i)    payment of a debt owed by one person (a debtor) to another person (a credit provider) is deferred; or

                         (ii)    one person (a debtor) incurs a deferred debt to another person (a credit provider); and

               (b)    including any of the following:

                          (i)    any form of financial accommodation;

                         (ii)    a hire purchase agreement;

                         (iii)    credit provided for the purchase of goods or services;

                        (iv)    a contract, arrangement or understanding for the hire, lease or rental of goods or services, other than a contract, arrangement or understanding under which:

                                   (A)     full payment is made before or when the goods or services are provided; and

                                   (B)     for the hire, lease or rental of goods — an amount at least equal to the value of the goods is paid as a deposit in relation to the return of the goods;

                         (v)    an article known as a credit card or charge card;

                        (vi)    an article, other than a credit card or a charge card, intended to be used to obtain cash, goods or services;

                        (vii)    an article, other than a credit card or a charge card, commonly issued to customers or prospective customers by persons who carry on business for the purpose of obtaining goods or services from those persons by way of a loan;

                       (viii)    a liability in respect of redeemable preference shares;

                        (ix)    a financial benefit arising from or as a result of a loan;

                         (x)    assistance in obtaining a financial benefit arising from or as a result of a loan;

                        (xi)    issuing, indorsing or otherwise dealing in a promissory note;

                        (xii)    drawing, accepting, indorsing or otherwise dealing in a negotiable instrument (including a bill of exchange);

                       (xiii)    granting or taking a lease over real or personal property;

                       (xiv)    a letter of credit.

2C           Meaning of financial service — off‑market offers for financial products

         (1)   For paragraph 12BAB (1) (h) of the Act, a person (person 1) provides a financial service if:

                (a)    person 1 makes an unsolicited offer to purchase a financial product from another person (person 2) other than through a licensed financial market; and

               (b)    person 2 acquired the financial product as a retail client.

         (2)   For paragraph 12BAB (2) (b) of the Act, a person to whom subregulation (1) applies (as person 1) is taken not to provide a financial service if person 1 tells person 2, in a clear and concise written statement that is part of the offer:

                (a)    either:

                          (i)    the market value of each financial product and the total market value of all financial products covered by the offer, as at the date that the offer is issued, and the date and time that each value is determined; or

                         (ii)    if information about the market value of a financial product is not available on the day of issue:

                                   (A)     a fair estimate of the value of the product as at the date that the offer is issued; and

                                   (B)     the method by which the estimate was reached; and

               (b)    that the offer remains open for a period that is:

                          (i)    at least 1 month; and

                         (ii)    not more than 12 months;

                        unless the offer is withdrawn in writing before the end of that period.

2D           Circumstances in which a person is taken to be provided a traditional trustee company service

                For subsection 12BAB (1B) of the Act, a person who is one of the following:

                (a)    a person who may request an annual information return under subregulation 5D.2.01 (3) of the Corporations Regulations 2001;

               (b)    a person who requests the preparation of a will, a trust instrument, a power of attorney or an agency arrangement;

is, in relation to an estate management function, prescribed as the person to whom the service is taken to be provided for the purpose of Division 2 of Part 2 of the Act.

         (3)   For subregulation (2), the market value or estimated value of a financial product must be expressed in Australian dollars.

Part 2                 General

  

3A           Prescribed schemes (Act s 12GNA (2) (a))

                For paragraph 12GNA (2) (a) of the Act, a scheme in the following table is prescribed:

 

Item

Scheme

Date prescribed

1

The New South Wales Bar Association Scheme, published in the New South Wales Government Gazette No. 183, 19 November 2004

11 May 2006

3              Prescribed agencies (Act s 18 (2) (d))

                For paragraph 18 (2) (d) of the Act, each of the following agencies is prescribed:

                (a)    the Australian Competition and Consumer Commission;

               (b)    the Australian Prudential Regulation Authority;

                (c)    the Australian Taxation Office;

               (d)    the Australian Transaction Reports and Analysis Centre;

                (e)    an authority of a State or Territory having functions and powers similar to those of the Director of Public Prosecutions;

                (f)    the police force or service of each State and the Northern Territory;

                (g)    the Department of Fair Trading of New South Wales;

                (h)    the Office of Fair Trading and Business Affairs of Victoria;

                 (i)    the Office of Consumer Affairs of Queensland;

                (j)    the Department of Consumer and Employment Protection of Western Australia;

               (k)    the Office of Consumer and Business Affairs of South Australia;

                 (l)    the Office of Consumer Affairs and Fair Trading of Tasmania;

               (m)    the Consumer Affairs Bureau of the Australian Capital Territory;

                (n)    the Fair Trading Group of the Northern Territory.

4              Form of notice requiring assistance and appearance for examination

                For subsection 19 (2) of the Act, Form 1 is prescribed.

5              Notice to produce books

                A notice under section 30, subsection 31 (1) or section 32A or 33 of the Act to produce books must be in accordance with Form 2.

6              Evidence of authority

                If:

                (a)    a member or staff member produces a document issued by the Commission; and

               (b)    the document states that the person is authorised by the Commission under section 34 of the Act;

the document is evidence of:

                (c)    the authority of the person to require other persons to produce books under subsection 34 (2) of the Act; and

               (d)    any limitation on that authority that is specified in the document under that subsection.

7              Summons to witnesses to appear before Commission

                For subsection 58 (1) of the Act, Form 3 is prescribed.

8              Allowances and expenses payable to examinees and witnesses

                For subsections 89 (1) and (2) of the Act, a person who appears:

                (a)    for examination under section 19 of the Act; or

               (b)    in accordance with a summons issued under section 58 of the Act;

is entitled to be paid allowances and expenses in accordance with Schedule 2.

8AA        Prescribed professional disciplinary bodies

                For paragraph 127 (4) (d) of the Act, the following professional bodies are prescribed:

                (a)    The Institute of Chartered Accountants in Australia;

               (b)    CPA Australia;

                (c)    National Institute of Accountants.

8A           Commission may disclose confidential information to certain bodies corporate

                The bodies corporate listed in Schedule 3 are specified for subsection 127 (4C) of the Act.

8B           Prescribed body

                For subparagraph 203 (1B) (b) (ii) of the Act, the Insolvency Practitioners Association of Australia is prescribed.

11            Summons to witnesses to appear before Disciplinary Board

                If a person is summoned under subsection 217 (1) of the Act, the summons must be in accordance with Form 3.

12            Allowances and expenses payable for attendance at hearings of Disciplinary Board

                For subsection 218 (4) of the Act, a person who attends at a hearing in accordance with a summons issued under subsection 217 (1) of the Act is entitled to be paid allowances and expenses in accordance with Schedule 2.

 

Part 3                 Panel Procedures

Division 1              Preliminary

13            Objects of this Part

                The objects of this Part are to ensure that Panel proceedings are:

                (a)    as fair and reasonable; and

               (b)    conducted with as little formality; and

                (c)    conducted in as timely manner;

as the requirements of this Part and the corporations legislation (other than the excluded provisions), and a proper consideration of the matters before the Panel, permit.

14            Application of this Part

                This Part applies to Panel proceedings in addition to the requirements of the corporations legislation (other than the excluded provisions) that applies to the proceedings.

15            Definitions for Part 3

                In this Part:

application means an application under section 656A, 657C or 657EA of the Corporations Act 2001.

brief, in relation to Panel proceedings, means the brief for the proceedings that is mentioned in paragraph 20 (b).

business day, in relation to a place, means any day except:

                (a)    a Saturday or a Sunday; or

               (b)    a day that is a public holiday or an Australian Public Service holiday in that place.

party means a party to Panel proceedings.

submission means a submission lodged with the Panel under a provision of this Part.

16            Powers of Panel

         (1)   In addition to any other provision of this Part, the Panel may:

                (a)    direct that 2 or more related matters are to be considered in Panel proceedings; and

               (b)    identify the issues to be considered by the Panel in its proceedings; and

                (c)    give directions to a person about:

                          (i)    the manner in which a matter may be presented, either orally or in writing, to the Panel; and

                         (ii)    the duration of the time in which the person may address the Panel or give evidence in Panel proceedings; and

               (d)    give directions to parties to lodge with the Panel specified documents relating to Panel proceedings; and

                (e)    give directions to persons about the time at or before which documents must be lodged with the Panel; and

                (f)    extend the time at or before which documents must be lodged with the Panel; and

                (g)    invite a person who is not a party to make a submission in relation to Panel proceedings; and

                (h)    permit a person to amend or withdraw information or evidence given to, or a document lodged with, the Panel for the purposes of Panel proceedings; and

                 (i)    direct that Panel proceedings be suspended for a period determined by the Panel; and

                (j)    direct that Panel proceedings be deferred until a day determined by the Panel.

         (2)   In the performance of its functions and the exercise of its powers in relation to Panel proceedings, the Panel:

                (a)    is not bound by the rules of evidence; and

               (b)    must consider all relevant information contained in:

                          (i)    a submission that is lodged with the Panel; and

                         (ii)    other evidence that is given to the Panel; and

                (c)    must act:

                          (i)    as fairly and reasonably; and

                         (ii)    with as little formality; and

                         (iii)    having regard to the time available before the decision must be made, in as timely a manner;

                        as the requirements of this Part, and the corporations legislation (other than the excluded provisions), and a proper consideration of the matters before the Panel permit.

Division 2              Applications

18            Reference of matters to the Commission by the Panel

         (1)   The Panel may refer a matter to the Commission for the Commission to consider with a view to making an application.

         (2)   If the Panel refers a matter to the Commission, the reference must be made:

                (a)    in writing; and

               (b)    in sufficient detail to allow the Commission to make a decision about the matter.

19            Making of applications

                An application to the Panel must be in the form approved by the Panel.

20            Consideration of applications

                As soon as practicable after receiving an application, the Panel must:

                (a)    decide whether to conduct proceedings in relation to the application; and

               (b)    if the Panel decides to conduct proceedings — prepare a brief setting out:

                          (i)    a general description of the matters to be examined in the Panel proceedings; and

                         (ii)    the issues to be addressed in submissions for the proceedings.

Division 3              Decisions to conduct proceedings

21            Notice of decision

         (1)   If the Panel decides, under regulation 20, to conduct proceedings, the Panel must, as soon as practicable after making the decision, notify the decision to:

                (a)    the Commission; and

               (b)    each company to which, or person to whom, the relevant application relates.

         (2)   If the Panel decides, under regulation 20, not to conduct proceedings, the Panel must, as soon as practicable after making the decision:

                (a)    notify the decision to the Commission; and

               (b)    notify the decision to each company and person to whom the relevant application relates; and

                (c)    include in each notice the reasons for the decision.

22            Decision to hold inquiry

         (1)   If the Panel decides to conduct proceedings, it must, after receiving the application:

                (a)    give a copy of the brief for the proceedings to:

                          (i)    the Commission; and

                         (ii)    to each company to which, or person to whom, the application relates; and

               (b)    invite each body or person mentioned in paragraph (a) to lodge with the Panel a written submission addressing the issues identified in the brief.

         (2)   If the Panel decides to conduct proceedings it may give written notice of the decision to any other body or person.

         (3)   The Panel must:

                (a)    give a copy of the brief to the body or person; and

               (b)    invite the body or person to lodge with the Panel a written submission addressing the issues identified in the brief that are specified in the invitation.

Division 4              Submissions

23            Expressions of interest by non‑parties

         (1)   The Panel may give notice to a person, or to the public at large, of a decision by the Panel to conduct proceedings.

         (2)   A notice must include a description of the nature of the proceedings.

         (3)   A notice may invite a person who is not a party to the proceedings to give, within a time allowed by the Panel, a written expression of interest in the proceedings:

                (a)    stating the nature of the interest of the person in the proceedings; and

               (b)    setting out the reasons why the Panel should consider a written submission of the person in relation to the proceedings.

         (4)   The Panel may, by written notice to the person, vary the period mentioned in subregulation (3).

24            Panel may accept submissions from persons expressing interest

         (1)   As soon as practicable after the Panel receives the expression of interest of a person, the Panel must acknowledge the receipt in writing.

         (2)   If the Panel decides to consider the written submission of a person in the proceedings, the Panel must give to the person a copy of the brief for the proceedings.

         (3)   The Panel must invite the person to lodge with the Panel a written submission addressing the issues identified in the brief.

         (4)   If the Panel decides not to consider any written submission of the person in the proceedings, the Panel must inform the person of the decision and of the reasons for the decision.

25            Submissions

                A submission made by a person to proceedings of the Panel must:

                (a)    be in the form approved by the Panel; and

               (b)    if the Panel has given to the person a copy of the brief and invited the person to comment on an issue identified in the brief, address that issue.

26            Disregard of certain submissions

         (1)   The Panel may disregard any matter in a submission that:

                (a)    is not in accordance with regulation 25; or

               (b)    is frivolous or vexatious.

         (2)   The Panel must disregard any matter in a submission that is not relevant to the proceedings.

27            Abuse of Panel procedures to be noted

                If a matter in a written submission made to the Panel is frivolous or vexatious, the Panel must place on the submission a note stating:

                (a)    that the Panel has disregarded the matter in accordance with paragraph 26 (1) (b); and

               (b)    the reasons why the Panel believes the matter to be frivolous or vexatious.

28            Lodgment and distribution of submissions

         (1)   A submission for Panel proceedings must be lodged with the Panel within the time allowed by the Panel.

         (2)   As soon as practicable after the Panel receives a submission, the Panel must give a copy of the submission to each party.

         (3)   A party who receives a copy of a submission relating to an application (the first submission) may lodge with the Panel no more than 1 submission that:

                (a)    rebuts a matter, or matters, in the first submission; and

               (b)    does not include material that is not necessary to support the rebuttal.

         (5)   A submission lodged with the Panel is taken not to include any additional material that is not lodged at the same time as the submission.

30            Panel may invite further submissions

         (1)   At any time during Panel proceedings, the Panel may request a party to lodge with the Panel a submission that addresses a matter specified in the request.

         (2)   The Panel may give a copy of the submission to each party.

         (3)   The Panel may direct a party who receives a copy of a submission (the first submission) to lodge, at or before a time specified in writing by the Panel, with the Panel not more than 1 submission that:

                (a)    rebuts a matter, or matters, in the first submission; and

               (b)    does not include material that is not necessary to support the rebuttal.

34            Submissions that are not lodged in time

                If a person does not lodge a document with the Panel by the time of lodgment specified in this Part for the document, the Panel may continue with the proceedings without regard to the document.

Division 5              Conferences

35            Purpose of conferences

         (1)   The Panel may conduct a conference during Panel proceedings to:

                (a)    clarify matters arising from documents in the possession of the Panel relating to the proceedings; or

               (b)    resolve inconsistent statements:

                          (i)    in documents in the possession of the Panel relating to the proceedings; or

                         (ii)    made orally to the Panel; or

                (c)    otherwise inform itself on matters relating to the proceedings.

         (2)   For the purposes of these Regulations, a conference is taken to be part of Panel proceedings.

37            Conduct of conferences

         (1)   The President may convene a conference.

         (2)   The President:

                (a)    must determine the place where, and the time when, a conference is to convene; and

               (b)    must give written notice of that time and place to each party.

38            Procedures at conferences

         (1)   As soon as practicable before a conference, the Panel must give to a person who may attend the conference a statement setting out:

                (a)    the matters which the Panel proposes to raise at the conference; and

               (b)    any other matter of which the Panel wishes the person to be aware for the purposes of the conference.

         (2)   At a conference with a person, the Panel is not obliged to consider matters that are not set out in the statement given to the person before the conference.

         (3)   The Panel must make and retain a transcript of the proceedings of a conference.

         (4)   If a person who may attend a conference does not attend:

                (a)    the Panel may conduct the conference in the absence of the person; and

               (b)    the person may, before the day on which the conference begins, lodge with the Panel any written submission that addresses the matters set out in the statement mentioned in subregulation (1); and

                (c)    the Panel must consider the submission in the proceedings.

39            Addresses to the Panel at conferences

         (1)   A person who attends a conference may address the Panel.

         (2)   Subject to subregulation (3), the address of a person to the Panel must only deal with matters set out in the statement given by the Panel under subregulation 38 (1) for the purposes of the conference.

         (3)   If the Panel invites a person at a conference to address the Panel on a matter, the person may address the Panel on the matter at the conference.

40            Witnesses

         (1)   At a conference, a person must not ask a witness about a matter unless it is a matter on which the person may address the Panel in accordance with regulation 39.

         (2)   A witness must not make a statement on a matter at a conference unless it is a matter on which the witness, or the person who called the witness to give evidence, may address the Panel in accordance with regulation 39.

41            Misbehaviour at conferences

                The Panel may exclude from a conference a person whose behaviour has a disruptive effect on the conference.

Division 6              Other matters

42            Summons to witnesses by the Panel

                For subsection 192 (1) of the Act (which provides for the summons of a person by the Panel), Form 3 is prescribed.

43            Allowances and expenses payable for attendances

                For subsection 192 (6) of the Act (which provides for allowances and expenses to be paid in relation to Panel proceedings), a person who appears at Panel proceedings in response to a summons issued under section 192 of the Act is entitled to be paid allowances and expenses in accordance with Schedule 2.

Part 4                 Repeal of old ASIC Regulations

  

44            Repeal of the Australian Securities and Investments Commissions Regulations 1990

                The following Statutory Rules are repealed:

·         1990 No. 454

·         1993 No. 208

·         1994 Nos. 301 and 443

·         1998 No. 294

·         1999 No. 190

·         2000 No. 10.

Note   The Australian Securities and Investments Commission Regulations 1990 were made under Australian Securities and Investments Commission Act 1989 but are continued in effect by section 264 of the Act.


 

Part 5                 Clearing and settlement facilities

  

45            Meaning of clearing and settlement facility

                For paragraph 12BAB (17) (b) of the Act, the following obligations are prescribed:

                (a)    each obligation arising from a contract to transfer a financial product mentioned in paragraph 764A (1) (a) of the Corporations Act;

               (b)    each obligation arising from a contract to transfer a financial product mentioned in paragraph 764A (1) (b) of the Corporations Act;

                (c)    each obligation arising from acquiring or providing a financial product mentioned in paragraph 764A (1) (c) of the Corporations Act;

               (d)    each obligation arising from a contract to transfer a financial product mentioned in paragraph 764A (1) (j) of the Corporations Act;

                (e)    each obligation arising from a contract to transfer a financial product mentioned in paragraph 764A (1) (ba) of the Corporations Act.

46            Conduct that does not constitute operating a clearing and settlement facility

         (2)   For paragraph 12BAB (18) (i) of the Act, the conduct of:

                (a)    National Stock Exchange of Australia Limited, or an agent of that body; or

               (b)    a participant of the National Stock Exchange of Australia Limited, or an agent of the participant; or

                (c)    Bendigo Stock Exchange Limited, or an agent of that body; or

               (d)    a participant of the Bendigo Stock Exchange Limited, or an agent of the participant;

in operating a facility in accordance with the operating rules of a licensed market does not constitute operating a clearing and settlement facility if the requirements of subregulation (3) are met.

         (3)   For subregulation (2), the requirements are:

                (a)    the market licensee must have, and must be responsible for enforcing, operating rules that apply to a participant of the licensed market in relation to the participant’s obligations arising from transactions carried out on the licensed market; and

               (b)    a participant mentioned in paragraph (a), or an agent of the participant, must be responsible for fulfilling the obligations owed to another participant or agent arising from transactions carried out on the licensed market; and

                (c)    the market licensee is not the operator of any other clearing and settlement facility; and

               (d)    each participant of the licensed market is not the operator of any other clearing and settlement facility; and

                (e)    each agent of a participant of the licensed market is not the operator of any other clearing and settlement facility.

47            Financial transaction reports

                For paragraph 243D (j) of the Act, neither subsection 16 (5A) nor (5AA) of the Financial Transaction Reports Act 1988 prohibits a cash dealer from communicating or disclosing a fact or information referred to in either of those subsections:

                (a)    to a body corporate approved under section 770 of the Corporations Act as an approved securities organisation; or

               (b)    in accordance with conditions imposed by the Minister when approving under section 770A of the Corporations Act a stock market for electronic trading of interests in a registered scheme; or

                (c)    in accordance with conditions imposed by the Minister when declaring a specified stock market to be an exempt stock market under section 771 of the Corporations Act; or

               (d)    in accordance with conditions imposed by the Minister when declaring a specified futures market to be an exempt futures market under section 1127 of the Corporations Act.

Note   Although sections 770, 770A, 771 and 1127 of the Corporations Act were repealed by the Financial Services Reform Act 2001, the sections are still relevant for specific purposes in the period of 2 years after the commencement of the Financial Services Reform Act.

Part 6                 Financial Reporting Panel

  

48            Form for written summons (Act s 239CE)

                For a written summons under subsection 239CE (1) of the Act, Form 4 is prescribed.


Schedule 1        Forms

(regulation 2)

Form 1        Notice requiring appearance at an examination or reasonable assistance in connection with an investigation

(regulation 4)

Australian Securities and Investment Commission Regulations 2001

Australian Securities and Investments Commission

NOTICE REQUIRING APPEARANCE AT AN EXAMINATION OR REASONABLE ASSISTANCE IN CONNECTION WITH AN INVESTIGATION

To:                                                              1

In relation to an investigation of                    2

you are notified that under subsection 19 (2) of the Australian Securities and Investments Commission Act 2001 (‘the Act’) you are required:

       (a)   to appear at                3 on

                                                                            4 at

                                                      5 before                             6

              for examination on oath or affirmation and to answer questions put to you in relation to the investigation; and

       (b)   to give the Australian Securities and Investments Commission all reasonable assistance in connection with the investigation.

Please note the provisions of subsection 23 (1) of the Act (relating to legal representation) and section 68 of the Act (relating to self‑incrimination). The effect of those provisions is set out at the end of this form.

Dated                                      4.

Signature of person authorised

by the Commission to conduct the

examination:

 

NOTICE OF RELEVANT STATUTORY PROVISIONS

1.    Subsection 23 (1) of the Act provides that a person who is required to submit to an examination is entitled to have his or her lawyer attend the examination. It also provides that the person’s lawyer may address the inspector or ask the person questions about matters raised with the person by the inspector.

2.    (1)   You must not fail to comply with this notice without reasonable excuse (see subsection 63 (1) of the Act).

       (2)   It is not a reasonable excuse for failure to comply with this notice that giving information or signing a record or producing a book might tend to incriminate you or expose you to a penalty (see subsection 68 (1) of the Act).

       (3)   However, if:

                (a)    before making an oral statement or signing a record in answer to this notice you claim that making the statement or signing the record might tend to incriminate you or expose you to a penalty; and

                (b)    making the statement or signing the record might in fact tend to incriminate you or expose you to a penalty;

       the statement, or the fact that you have signed the record, is not admissible in evidence in any criminal proceedings, or proceedings for the imposition of a penalty, against you other than proceedings in respect of the falsity of the statement or the record.

(4)   The right to make a claim of this kind is not available to a body corporate (see subsections 68 (2) and (3) of the Act).

 

1       insert full name and address of the person to whom the notice is to be given

2       insert the nature of the matter to which the investigation relates

3       insert time of day

4       insert date

5       insert full particulars of the address of the place at which the requirement is to be satisfied

6       insert full name of the person conducting the examination

Form 2        Notice requiring the production of books

(regulation 5)

Australian Securities and Investment Commission Regulations 2001

Australian Securities and Investments Commission

NOTICE REQUIRING THE PRODUCTION OF BOOKS

To:                                                                     1

In relation to                                                2

you are notified that, under section 303/subsection 31 (1)3/section 32A3/section 333 of the Australian Securities and Investments Commission Act 2001 you are required to produce to

                                                                         4 at                                          5

on                                                                    6 at                                             7

the following books:

                                                                  8

Dated                                      6.

Signature of the person requiring

the production of books:

 

1       insert full name and address of the person to whom the notice is to be given

2       insert the nature of the matter to which the request for production of books relates

3       strike out or delete if inapplicable

4       insert the full name of the person to whom the books are to be produced

5       insert time of day

6       insert date

7       insert full particulars of the address of the place at which the books are to be produced

8       insert description(s) of the books that are to be produced

Form 3        Summons to witness

(regulations 7, 11 and 42)

Australian Securities and Investment Commission Regulations 2001

Australian Securities and Investments Commission

SUMMONS TO WITNESS

In the matter of                             1

To:                                                                  2

at                                 4you are summoned to appear before the Australian Securities and Investments Commission3/Takeovers Panel3/Companies Auditors and Liquidators Disciplinary Board3

 

on                                                            5

at                                                                              6 and thereafter to attend from day to day until the hearing in this matter is completed or you are excused or released from further attendance by a member of the Commission3/ Panel3/Board3.

3You are required to produce the following document(s) at the hearing:

                                                              7

Dated                                           4.

Signature of person authorised by

the Commission3/Panel3/Board3 to issue summons:

 

1       insert description of matter

2       insert full name and address of the person to be summoned to appear

3       strike out or delete if inapplicable

4       insert time of day

5       insert date

6       insert full particulars of the address of the place where the hearing is to be held

7       insert description(s) of the documents that are to be produced at the hearing

 

Form 4        Summons to witness

(regulation 48)

Australian Securities and Investments Commission Regulations 2001

Australian Securities and Investments Commission

SUMMONS TO WITNESS

Note   Under subsection 239CE (1) of the Australian Securities and Investments Commission Act 2001 (the Act), a member of the Financial Reporting Panel (the Panel) may, by written summons in the prescribed form given to a person mentioned in subsection 239CE (2) of the Act:

(a)      require the person to appear before the Panel at Panel proceedings to give evidence, to produce specified documents or to do both; and

(b)      require the person to attend from day to day unless excused, or released from further attendance, by a member.

Under section 239CJ of the Act, failure to comply with a requirement made under subsection 239CE (1) of the Act is an offence. Under section 239CL of the Act, the Court can order a person to comply with a requirement made under subsection 239CE (1) of the Act.

 

In the matter of           1

 

To        2

 

at         3          

 

on         4          

 

you are summoned under subsection 239CE (1) of the Australian Securities and Investments Commission Act 2001 to appear before the Financial Reporting Panel

 

at         5

 

and to attend from day to day until the proceedings are completed or you are excused, or released from further attendance, by a member of the Financial Reporting Panel.

 

You are required to produce the following document(s) at the
proceedings       6           .

 

You are7/are not7 required to give oral evidence at the proceedings.

 

If you are unable to attend, give evidence or produce a document on a particular day you must give the Financial Reporting Panel written notice, including the reason you are unable to attend, give evidence or produce the document.

Dated

 

Signature of member of the Financial Reporting Panel issuing summons

 

 

1       insert description of proceedings

2       insert full name and address of the person to be summoned to appear

3       insert time of day

4       insert date

5       insert full details of the address of the place where the hearing is to be held

6       insert description of the document(s) that are to be produced at the hearing

7       strike out or delete if inapplicable

Schedule 2        Witnesses fees and allowances for expenses

(regulations 8, 12 and 43)

  

1.    A person summoned to appear as a witness, because of his or her professional, scientific or other special skill or knowledge, before the Commission, the Panel or the Board must be paid:

     (a)     if the person is remunerated in his or her occupation by wages, salary or fees — an amount equal to the amount of wages, salary or fees not paid to the person because of his or her attendance for that purpose; and

     (b)     in any other case — an amount of not less than $81, or more than $407, for each day on which he or she so attends.

2.    A person summoned to appear as a witness, other than a witness referred to in item 1, before the Commission, the Panel or the Board must be paid:

     (a)     if the person is remunerated in his or her occupation by wages, salary or fees — an amount equal to the amount of wages, salary or fees not paid to the person because of his or her attendance for that purpose; and

     (b)     in any other case — an amount of not less than $46, or more than $76, for each day on which he or she so attends.

3.    A person summoned to appear as a witness before the Commission, the Panel or the Board must be paid a reasonable amount for allowances for:

     (a)     transport between the usual place of residence of the person and the place that he or she attends for that purpose; and

     (b)     if he or she is required to be absent overnight from his or her usual place of residence — meals and accommodation during the absence.

Schedule 3        Bodies corporate to which information may be disclosed

(regulation 8A)

Part 1          Australian bodies corporate

 

Item

Body Corporate

1

ASX Settlement and Transfer Corporation Pty Limited

2

Austraclear Limited

3

Australian Clearing House Pty Limited

4

Australian Stock Exchange Limited

5

Australia Pacific Exchange Limited

6

Bendigo Stock Exchange Ltd

6A

BGC Partners (Australia) Pty Limited

6B

Bloomberg Tradebook Australia Pty Ltd

7

Golden Circle Limited

8

ICAP Brokers Pty Limited

9

IMB Ltd

9A

Mercari Pty Limited

10

National Stock Exchange of Australia Limited

11

SFE Clearing Corporation Pty Ltd

12

Sydney Futures Exchange Limited

13

Yieldbroker Pty Limited

Part 2          Foreign bodies corporate

 

Item

Body

Location

1

American Stock Exchange Inc (also known as ‘AMEX’)

United States of America

2

Amsterdam Exchanges NV (also known as ‘AEX’)

The Netherlands

3

Athens Stock Exchange

Greece

4

Austrian Futures and Options Exchange (also known as ‘OTOB’)

Austria

5

Belgium Futures and Options Exchange (also known as ‘BELFOX’)

Belgium

6

Bolsa de Barcelona

Spain

7

Bolsa de Comercio de Buenos Aires

Argentina

8

Bolsa de Comercio de Santiago

Chile

9

Bolsa de Derivados do Porto

Portugal

10

Bolsa de Madrid

Spain

11

Bolsa de Mercadorias & Futuros

Brazil

12

Bolsa de Valores de Lima

Peru

13

Bolsa de Valores de Lima e Porto

Portugal

14

Bolsa de Valores de Rio de Janeiro

Brazil

15

Bolsa de Valores do São Paolo (also known as ‘BOVESPA’)

Brazil

16

Bolsa Mexicana de Valores

Mexico

17

Bourse de Montréal

Canada

18

Brussels Exchange (also known as ‘BXS’)

Belgium

19

Canadian Venture Exchange (also known as ‘CDNX’)

Canada

20

Chicago Board of Trade (also known as ‘CBOT’)

United States of America

21

Chicago Board Options Exchange

United States of America

22

Chicago Mercantile Exchange Inc (also known as ‘CME’)

United States of America

23

Chicago Stock Exchange

United States of America

24

Coffee, Sugar and Cocoa Exchange Inc (also known as ‘CSCE’)

United States of America

25

Commodity Exchange Inc (also known as ‘COMEX’)

United States of America

26

Copenhagen Stock Exchange

Denmark

27

Deutsche Börse AG

Germany

27A

EBS Service Company Limited

Switzerland

27B

Eurex Frankfurt AG

Germany

28

Eurex Zurich AG

Germany and Switzerland

29

Financiele Termijnmarket Amsterdam NV

The Netherlands

29A

FX Alliance International, LLC

United States of America

30

Helsinki Exchanges (also known as ‘HEX’)

Finland

31

Hong Kong Futures Exchange Ltd (also known as ‘HKFE’)

Hong Kong

32

Irish Stock Exchange

Republic of Ireland

33

Istanbul Stock Exchange

Turkey

34

Italian Futures Exchange (also known as ‘MIF’)

Italy

35

Italian Stock Exchange

Italy

36

Jakarta Stock Exchange

Indonesia

37

Johannesburg Stock Exchange

South Africa

38

Kansas City Board of Trade

United States of America

39

Korea Stock Exchange

South Korea

40

Kuala Lumpur Commodity Exchange (also known as ‘KLCE’)

Malaysia

41

Kuala Lumpur Options and Financial Futures Exchange

Malaysia

42

Kuala Lumpur Stock Exchange

Malaysia

43

London International Financial Futures Exchange Ltd

United Kingdom

44

London Securities and Derivatives Exchange

United Kingdom

45

London Stock Exchange

United Kingdom

46

Marche a Terme International de France (also known as ‘MATIF’)

France

47

Marche des Options Negotiable de Paris (also known as ‘MOTEP’)

France

47A

Market Regulation Services Inc.

Canada

48

Mid American Commodity Exchange

United States of America

49

NASDAQ Stock Market (also known as ‘NASDAQ’)

United States of America

50

New York Futures Exchange

United States of America

50A

New York Mercantile Exchange Inc (also known as ‘NYMEX’)

United States of America

51

New York Stock Exchange Inc (also known as ‘NYSE’)

United States of America

52

New Zealand Futures & Options Exchange Ltd (also known as ‘NZFOE’)

New Zealand

53

New Zealand Stock Exchange

New Zealand

54

OM Stockholm Exchange AB (also known as ‘OMS’)

Sweden

55

Osaka Securities Exchange (also known as ‘OSE’)

Japan

56

Oslo Stock Exchange (also known as ‘OLSO’)

Norway

57

Paris Bourse SBF SA

France

58

Philippines Stock Exchange

The Philippines

59

Port Moresby Stock Exchange

Papua New Guinea

59A

Reuters Transaction Services Limited

United Kingdom

60

Shanghai Stock Exchange

Peoples’ Republic of China

61

Shenzen Stock Exchange

Peoples’ Republic of China

62

Singapore Exchange Ltd (also known as ‘SGX’)

Singapore

63

Société de la Bourse de Luxembourg SA

Luxembourg

64

South African Futures Exchange (also known as ‘SAFEX’)

South Africa

65

Spanish Financial Derivatives Exchange (also known as ‘MEFF’)

Spain

66

Suva Stock Exchange

Fiji

67

Swiss Exchange (also known as ‘SWX’)

Switzerland

68

Taiwan Stock Exchange

Taiwan

69

Tel Aviv Stock Exchange

Israel

69A

The London Metal Exchange Limited

United Kingdom

70

The Stock Exchange of Thailand

Thailand

71

Tokyo International Futures Exchange (also known as ‘TIFFE’)

Japan

72

Tokyo Stock Exchange (also known as ‘TSE’)

Japan

73

Toronto Futures Exchange (also known as ‘TFE’)

Canada

74

Toronto Stock Exchange (also known as ‘TSE’)

Canada

75

Warsaw Stock Exchange

Poland

76

Wiener Börse AG

Austria

 


Notes to the Australian Securities and Investments Commission Regulations 2001

Note 1

The Australian Securities and Investments Commission Regulations 2001 (in force under the Australian Securities and Investments Commission Act 2001) as shown in this compilation comprise Statutory Rules 2001 No. 192 amended as indicated in the Tables below.

Table of Instruments

Year and
number

Date of notification
in Gazette or FRLI registration

Date of
commencement

Application, saving or
transitional provisions

2001 No. 192

13 July 2001

15 July 2001 (see Gazette 2001, No. S285)

 

2001 No. 317

15 Oct 2001

11 Mar 2002 (see r. 2 and Gazette 2001, No. GN42)

2002 No. 39

7 Mar 2002

(a)

2002 No. 124

14 June 2002

(b)

2003 No. 107

4 June 2003

4 June 2003

2004 No. 102

28 May 2004

28 May 2004

2004 No. 210

9 July 2004

9 July 2004

2004 No. 397

23 Dec 2004

Rr. 1–3 and Schedule 1:
23 Dec 2004
Remainder: 1 Jan 2005

2006 No. 101

10 May 2006 (see F2006L01443)

11 May 2006

2007 No. 119

14 May 2007 (see F2007L01269)

15 May 2007

2007 No. 321

28 Sept 2007 (see F2007L03800)

29 Sept 2007

2007 No. 322

28 Sept 2007 (see F2007L03845)

31 Dec 2007 (see r. 2)

2010 No. 86

6 May 2010 (see F2010L01096)

6 May 2010 (see r. 2)

2010 No. 87

10 May 2010 (see F2010L01197)

(see r. 2 and Note 2)

2010 No. 183

30 June 2010 (see F2010L01801)

28 June 2010 (see r. 2)

2010 No. 278

18 Nov 2010 (see F2010L03015)

(see r. 2 and Note 3)

(a)    Regulation 2 of the Australian Securities and Investments Commission Amendment Regulations 2002 (No. 1) provides as follows:

2       These Regulations commence at 12.02 am (in the Australian Capital Territory) on 11 March 2002.

(b)    Regulation 2 of the Australian Securities and Investments Commission Amendment Regulations 2002 (No. 2) provides as follows:

2       These Regulations are taken to have commenced at 12.02 am on 11 March 2002.

Table of Amendments

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

Provision affected

How affected

Part 1

 

R. 2A.......................................

ad. 2001 No. 317

R. 2AC....................................

ad. 2004 No. 210

R. 2B......................................

ad. 2001 No. 317

R. 2C......................................

ad. 2003 No. 107

R. 2D......................................

ad. 2010 No. 86

Part 2

 

R. 3A.......................................

ad. 2006 No. 101

R. 3.........................................

am. 2001 No. 317

R. 5.........................................

am. 2001 No. 317

R. 8AA....................................

ad. 2007 No. 322

R. 8B......................................

ad. 2010 No. 183

Part 3

 

Division 1

 

R. 15.......................................

am. 2001 No. 317

Part 5

 

Part 5......................................

ad. 2001 No. 317

R. 45.......................................

ad. 2001 No. 317

R. 46.......................................

ad. 2001 No. 317

 

am. 2002 No. 124; 2007 No. 321

R. 47.......................................

ad. 2001 No. 317

Part 6

 

Part 6......................................

ad. 2004 No. 397

R. 48.......................................

ad. 2004 No. 397

Schedule 1

 

Form 2...................................

am. 2001 No. 317

Form 3...................................

am. 2001 No. 317

Form 4...................................

ad. 2004 No. 397

Schedule 3

 

Schedule 3............................

am. 2001 No. 317; 2002 No. 39; 2004 Nos. 102 and 397; 2007 Nos. 119 and 321

 

Note 2

Australian Securities and Investments Commission Amendment Regulations 2010 (No. 2) (2010 No. 87)

The following amendment commences on 1 January 2011:

Schedule 1

[1]           After regulation 2B

insert

2BA        Declared financial product

                For paragraph 12BAA (7) (m) of the Act, a margin lending facility (within the meaning given by section 761EA of the Corporations Act) is declared to be a financial product for the purposes of subsection 12BAA (7) of the Act.

As at 19 November 2010 the amendment is not incorporated in this compilation.

Note 3

Australian Securities and Investments Commission Amendment Regulations 2010 (No. 2) (2010 No. 278)

The following amendment commences on 1 January 2011:

Schedule 1

[1]           After regulation 2D

insert

2E           Prescribed requirements for definition of assert a right to payment

                For paragraph 12BEA (1) (e) of the Act, the following requirements are prescribed:

                (a)    the statement must include the text ‘This is not a bill. You are not required to pay any money.’;

               (b)    the text must be the most prominent text in the document.

2F           Prescribed requirements for warning statements

                For paragraphs 12DM (1AA) (b) and 12DMB (2) (b) of the Act, the following requirements are prescribed:

                (a)    the warning statement must include the text ‘This is not a bill. You are not required to pay any money.’; and

               (b)    the text must be the most prominent text in the document.

As at 19 November 2010 the amendment is not incorporated in this compilation