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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Australian
Securities and Investments Commission Bill
2001
No. ,
2001
(Treasury)
A Bill
for an Act to provide for the Australian Securities and Investments Commission,
a Companies and Securities Advisory Committee and certain other bodies, and for
other purposes
ISBN: 0642 466378
Contents
A Bill for an Act to provide for the Australian
Securities and Investments Commission, a Companies and Securities Advisory
Committee and certain other bodies, and for other purposes
The Parliament of Australia enacts:
(1) The objects of this Act are:
(a) to provide for the Australian Securities and Investments Commission
(ASIC) which will administer such laws of the Commonwealth, a
State or a Territory as confer functions and powers under those laws on ASIC;
and
(b) to provide for ASIC’s functions, powers and business;
and
(c) to establish a Companies and Securities Advisory Committee to provide
informed and expert advice to the Minister about the content, operation and
administration of the corporations legislation (other than the excluded
provisions), about corporations and about the securities markets and futures
markets; and
(d) to establish a Corporations and Securities Panel, a Companies Auditors
and Liquidators Disciplinary Board, a Financial Reporting Council, an Australian
Accounting Standards Board and a Parliamentary Joint Committee on Corporations
and Securities.
(2) In performing its functions and exercising its powers, ASIC must
strive to:
(a) maintain, facilitate and improve the performance of the financial
system and the entities within that system in the interests of commercial
certainty, reducing business costs, and the efficiency and development of the
economy; and
(b) promote the confident and informed participation of investors and
consumers in the financial system; and
(d) administer the laws that confer functions and powers on it effectively
and with a minimum of procedural requirements; and
(e) receive, process and store, efficiently and quickly, the information
given to ASIC under the laws that confer functions and powers on it;
and
(f) ensure that information is available as soon as practicable for access
by the public; and
(g) take whatever action it can take, and is necessary, in order to
enforce and give effect to the laws of the Commonwealth that confer functions
and powers on it.
(3) This Act has effect, and is to be interpreted,
accordingly.
This Act may be cited as the Australian Securities and Investments
Commission Act 2001.
This Act commences at the same time as the Corporations Act
2001.
This Act applies:
(a) in this jurisdiction; and
(b) in a State that is not a referring State (but only to the extent to
which the application would be within the legislative powers of the Parliament
(including powers it has under paragraphs 51(xxxvii) and (xxxix) of the
Constitution)); and
(c) in such external Territories (if any) as are prescribed.
(1) In this Act, unless the contrary intention appears:
AASB means the Australian Accounting Standards
Board.
absent from office, in relation to a holder of an office,
means:
(a) absent from duty or from Australia; or
(b) unable, for any reason, to perform the functions of the
office.
affairs, in relation to a body corporate, has the same
meaning as in section 232 of the Corporations Act.
APRA means the Australian Prudential Regulation
Authority.
ASIC means the Australian Securities and Investments
Commission.
ASIC delegate means a person to whom, or a body to which, a
function or power is delegated under section 102.
assist, in relation to an ASIC delegate, means:
(a) to perform functions:
(i) as a member, officer or employee of the ASIC delegate; and
(ii) in connection with the ASIC delegate’s performance or exercise
of a function or power delegated under section 102; or
(b) to perform services for the ASIC delegate in connection with the ASIC
delegate’s performance or exercise of a function or power delegated under
section 102.
Australia includes an external Territory to which this Act
applies.
books includes:
(a) a register; and
(b) financial reports or financial records, however compiled, recorded or
stored; and
(c) a document; and
(d) banker’s books; and
(e) any other record of information.
CASAC means the Companies and Securities Advisory
Committee.
Chairperson means:
(a) except in Part 11 or in relation to the Disciplinary
Board—the Chairperson of ASIC; and
(b) in Part 11 or in relation to the Disciplinary Board—the
Chairperson of the Disciplinary Board.
contravention, in relation to a law, includes an ancillary
offence relating to an offence against that law.
Convenor means the Convenor of CASAC.
Corporations Act means the Corporations Act 2001 and
regulations made under that Act.
corporations legislation means:
(a) this Act; and
(b) the Corporations Act.
court, except in section 248, includes a tribunal having
power to require the production of documents or the answering of
questions.
Deputy Chairperson means the Deputy Chairperson of
ASIC.
Disciplinary Board means the Companies Auditors and
Liquidators Disciplinary Board.
eligible employee has the same meaning as in the
Superannuation Act 1976.
eligible person, in relation to a person, means a person
who:
(a) if the first-mentioned person is a body corporate—is or has been
an officer of the body within the meaning of the corporations legislation (other
than the excluded provisions); or
(b) in any case:
(i) is or has been an employee, agent, banker, solicitor or auditor of;
or
(ii) is acting, or has acted, in any other capacity on behalf
of;
the first-mentioned person.
examination means an examination of a person pursuant to a
requirement made under section 19.
excluded provisions means section 12A and
Division 2 of Part 2.
expenses, in relation to an investigation under
Division 1 of Part 3, includes costs and expenses incurred in relation
to a proceeding begun under section 50 as a result of the
investigation.
fail means refuse or fail.
foreign country means:
(a) an external Territory to which this Act does not apply; or
(b) a country outside Australia and the external Territories; or
(c) a part of such a country.
FRC means the Financial Reporting Council.
give has:
(a) in relation to a document—a meaning affected by section 86;
and
(b) in relation to information—a meaning affected by
section 6.
hearing, in this section and Part 3, means a hearing
before ASIC and, in sections 52, 54, 55 and 56, includes a part of such a
hearing.
House means a House of the Parliament.
information has a meaning affected by
section 6.
international accounting standards means accounting standards
made by:
(a) the Board of the International Accounting Standards Committee;
or
(b) another body specified by the regulations.
investigate, in relation to ASIC, means investigate in the
course of performing or exercising any of ASIC’s functions and
powers.
meeting means:
(a) in Part 4—a meeting of ASIC;
(b) in Part 9—a meeting of CASAC;
(c) in Part 11—a meeting of the Disciplinary Board.
member means:
(a) except in Division 2 of Part 4, in Part 9, 10, 11, 12
or 14, or in relation to a Division, CASAC, the Panel, the Disciplinary Board,
the FRC, the AASB or the Parliamentary Committee—a member of ASIC;
and
(b) in Part 9 or in relation to CASAC—a member of CASAC;
and
(c) in Part 10 or in relation to the Panel—a member of the
Panel; and
(d) in Part 11 or in relation to the Disciplinary Board—the
Chairperson or any other member of the Disciplinary Board; and
(e) in relation to the FRC—a member of the FRC; and
(ea) in relation to the AASB—a member of the AASB; and
(f) in Part 14 or in relation to the Parliamentary Committee—a
member of the Parliamentary Committee.
officer, in relation to a body corporate, includes:
(a) a director, secretary, executive officer or employee of the body;
and
(b) a receiver, or a receiver and manager, of property of the body;
and
(ba) an administrator of the body; and
(bb) an administrator of a deed of company arrangement executed by the
body; and
(c) an official manager, or a deputy official manager, of the body;
and
(d) a liquidator, or a provisional liquidator, of the body; and
(e) a trustee or other person administering a compromise or arrangement
made between the body and any other person or persons.
Panel means the Corporations and Securities Panel.
Panel proceedings means proceedings before the Panel
on:
(a) an application made to the Panel under the Corporations Act;
or
(b) a reference of a decision to the Panel for review under the
Corporations Act.
Parliamentary Committee means the Parliamentary Joint
Committee on Corporations and Securities.
power includes an authority.
prescribed means prescribed by this Act or the
regulations.
President means the President of the Panel.
proceeding means:
(a) a proceeding in a court; or
(b) a proceeding or hearing before, or an examination by or before, a
tribunal;
whether the proceeding, hearing or examination is of a civil,
administrative, criminal, disciplinary or other nature.
produce, except in Part 3, includes permit access
to.
property means any legal or equitable estate or interest
(whether present or future and whether vested or contingent) in real or personal
property of any description and includes a thing in action and money.
record, in relation to an examination, means the whole or a
part of a record made under section 24 of statements made at the
examination.
regulations means regulations made under this Act.
report includes an interim report.
staff member means:
(a) a member of the staff referred to in subsection 120(1) or a person
employed under subsection 120(3); or
(b) a person engaged under subsection 121(1); or
(c) any of the officers, employees and persons who under section 122
are to assist ASIC.
statement, in relation to an examination, includes a question
asked, an answer given, and any other comment or remark made, at the
examination.
superannuation benefits includes:
(a) benefits in the nature of superannuation benefits; and
(b) benefits similar to benefits provided under the Superannuation Act
1976; and
(c) benefits similar to the benefits provided under the Superannuation
Act 1990.
Territory means:
(a) the Capital Territory; or
(b) the Northern Territory; or
(c) an external Territory to which this Act applies;
and, when used in a geographical sense, includes the coastal sea of the
Territory.
this Act includes the regulations.
tribunal means:
(a) a tribunal in Australia; or
(b) any other body, authority or person in Australia having power, by law
or by consent of parties, to hear, receive or examine evidence.
trust money means money ASIC receives or holds on
trust.
witness:
(a) in relation to a hearing before ASIC, means a person appearing at the
hearing to give evidence; or
(b) in relation to Panel proceedings, means a person appearing in the
proceedings to give evidence.
written record, in relation to an examination,
means:
(a) a record of the examination:
(i) that is made in writing; or
(ii) as reduced to writing; or
(b) a part of such a record.
(2) Subject to this Act, an expression has the same meaning in this Act as
in the Corporations Act.
(3) Except so far as the contrary intention appears in this Act,
Parts 1.2 and 1.3 of the Corporations Act apply for the purposes of this
Act as if the provisions of this Act were provisions of that Act.
(1) The Acts Interpretation Act 1901 as in force on 1 November
2000 applies to this Act.
(2) Amendments of the Acts Interpretation Act 1901 made after
1 November 2000 do not apply to this Act.
A reference in this Act to giving information includes a reference
to:
(a) explaining or stating a matter; or
(b) identifying a person, matter or thing; or
(c) disclosing information; or
(d) answering a question.
ASIC:
(a) is a body corporate, with perpetual succession; and
(b) has a common seal; and
(c) may acquire, hold and dispose of real and personal property;
and
(d) may sue and be sued in its corporate name.
Note 1: ASIC was established by section 7 of the
Australian Securities and Investments Commission Act 1989 and is
continued in existence by section 261 of this Act.
Note 2: The Commonwealth Authorities and Companies Act
1997 applies to ASIC. That Act deals with matters relating to Commonwealth
authorities, including reporting and accountability, banking and investment, and
conduct of officers.
(1) ASIC is to consist of not fewer than 3 nor more than 8
members.
(2) The Governor-General appoints the members on the nomination of the
Minister.
(3) At least 3 of the members must be appointed as full-time members and
each of the remaining members (if any) may be appointed as a full-time member or
as a part-time member.
(4) The Minister is to nominate a person as a member only if the Minister
is satisfied that the person is qualified for appointment by virtue of his or
her knowledge of, or experience in, one or more of the following fields, namely,
business, the administration of companies, the financial markets, law, economics
and accounting.
(5) The performance of ASIC’s functions or the exercise of
ASIC’s powers is not affected by reason only that the number of members,
or the number of full-time members, is less than 3 unless a continuous period of
3 months has elapsed since the number of members, or the number of full-time
members, as the case may be, fell below 3.
(6) For the purposes of subsection (5), an acting member is taken to
be a member.
The Governor-General is to appoint as Chairperson of ASIC a person who
is, or is to be, a full-time member and may appoint as Deputy Chairperson of
ASIC a person (other than the Chairperson) who is, or is to be, a full-time
member.
Note: For the manner in which the Chairperson and Deputy
Chairperson may be referred to, see section 18B of the Acts
Interpretation Act 1901.
(1) ASIC has such functions and powers as are conferred on it by or under
the corporations legislation (other than the excluded provisions).
(2) ASIC also has the following functions:
(a) to provide such staff and support facilities to the Panel, the
Disciplinary Board and the Review Board as are necessary or desirable for the
performance and exercise by the Panel, the Disciplinary Board and the Review
Board of their respective functions and powers;
(b) to advise the Minister about any changes to the corporations
legislation (other than the excluded provisions) that, in ASIC’s opinion,
are needed to overcome, or would assist in overcoming, any problems that ASIC
has encountered in the course of performing or exercising any of its functions
and powers.
(3) ASIC may, on its own initiative or when requested by the Minister,
advise the Minister, and make to the Minister such recommendations as it thinks
fit, about any matter of a kind referred to in section 148.
(4) ASIC has power to do whatever is necessary for or in connection with,
or reasonably incidental to, the performance of its functions.
(6) Subject to this Act, ASIC has the general administration of this
Act.
(8) ASIC may, with the consent of the Minister, enter into an agreement or
arrangement with a State or Territory for the performance of functions or the
exercise of powers by ASIC as an agent of the State or Territory.
(9) ASIC has such functions and powers as are referred to in such an
agreement or arrangement. However, ASIC is not under a duty to perform such
functions or exercise such powers.
(9A) ASIC may have functions or powers conferred on it by or under a law
of a State or Territory if:
(a) that law provides for, or relates to, the repeal, amendment or
termination (however described) of the operation of, any of the replaced
legislation within the meaning of item 22 of Schedule 8 to the
Financial Sector Reform (Amendments and Transitional Provisions) Act
(No. 1) 1999; and
(b) the conferral of the powers or functions is in accordance
with:
(i) provisions of an agreement entered into by the Commonwealth and the
State or Territory, being provisions approved by the Minister for the purposes
of this subsection; or
(ii) an approval given by the Minister for the purposes of this
subsection.
ASIC has the functions and powers so conferred by that law. However, ASIC
is not under a duty to perform such functions or exercise such powers.
(9B) ASIC is not subject to any directions of the Minister in relation
to:
(a) entering an agreement under subsection 11(8); or
(b) performing functions or exercising powers referred to in subsection
11(9); or
(c) performing functions or exercising powers conferred under subsection
11(9A).
(1) The Minister may give ASIC a written direction about policies it
should pursue, or priorities it should follow, in performing or exercising any
of its functions or powers under the corporations legislation (other than the
excluded provisions).
(2) The Minister must not give a direction under subsection (1)
unless he or she has:
(a) notified ASIC in writing that he or she is considering giving the
direction; and
(b) given the Chairperson an adequate opportunity to discuss with the
Minister the need for the proposed direction.
(3) The Minister must not give a direction under subsection (1) about
a particular case.
(4) ASIC must comply with a direction under subsection (1).
(5) The Minister must cause a copy of an instrument under
subsection (1):
(a) to be published in the Gazette within 21 days after the
instrument is made; and
(b) to be laid before each House of the Parliament within 15 sitting days
of that House after the publication;
but failure of the Minister to do so does not affect the instrument’s
validity.
(1) ASIC has the functions and powers that are conferred on it by or under
Division 2 of Part 2 of this Act and by or under the following
Acts:
(a) the Insurance Act 1973;
(b) the Insurance (Agents and Brokers) Act 1984;
(c) the Insurance Contracts Act 1984;
(d) the Superannuation (Resolution of Complaints) Act
1993;
(e) the Life Insurance Act 1995;
(f) the Retirement Savings Accounts Act 1997;
(g) the Superannuation Industry (Supervision) Act 1993.
(2) ASIC has the function of monitoring and promoting market integrity and
consumer protection in relation to the Australian financial system.
(3) ASIC has the function of monitoring and promoting market integrity and
consumer protection in relation to the payments system by:
(a) promoting the adoption of approved industry standards and codes of
practice; and
(b) promoting the protection of consumer interests; and
(c) promoting community awareness of payments system issues; and
(d) promoting sound customer-banker relationships, including
through:
(i) monitoring the operation of industry standards and codes of practice;
and
(ii) monitoring compliance with such standards and codes.
(4) Subsections (2) and (3) confer functions and powers to the extent
to which they are not in excess of the legislative power of the
Commonwealth.
(5) ASIC may:
(a) advise the Minister about any changes to a law listed in
subsection (1) that ASIC thinks are needed to help overcome any problems
that ASIC has encountered in the course of performing its functions or
exercising any of its powers under that law; and
(b) advise the Minister and make such recommendations as it thinks fit
about any matter relating to its functions in subsections (2) and
(3).
(6) ASIC has power to do whatever is necessary for or in connection with,
or reasonably incidental to, the performance of its functions.
(1) Without prejudice to its effect apart from this section, this Division
also has effect as provided by this section.
(2) This Division has, by force of this subsection, the effect it would
have if:
(a) references in this Division to trade or commerce were, by express
provision, confined to trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2
Territories; or
(iv) by way of the supply of services to the Commonwealth or an authority
or instrumentality of the Commonwealth; and
(b) section 12DJ were, by express provision, confined in its
operation to engaging in conduct to the extent to which the conduct takes place
in the course of or in relation to:
(i) trade or commerce between Australia and places outside Australia;
or
(ii) trade or commerce among the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(iv) the supply of services to the Commonwealth or an authority or
instrumentality of the Commonwealth; and
(c) reference in Subdivision E (sections 12EA to 12ED) to a contract
for the supply of services or to the supply of services were, by express
provision, confined to a contract made, or to the supply of services:
(i) in the course of, or in relation to, trade or commerce between
Australia and places outside Australia; or
(ii) in the course of, or in relation to, trade or commerce among the
States; or
(iii) in the course of, or in relation to, trade or commerce within a
Territory, between a State and a Territory or between 2 Territories;
and
(d) references in this Division to a corporation, except a reference in
section 12BA, included a reference to a person other than a
corporation.
(3) In addition to the effect that this Division has as provided by
subsection (2), the provisions of Subdivision C (sections 12CA to
12CB) and Subdivision D (sections 12DA to 12DN) have, by force of this
subsection, the effect they would have if:
(a) those provisions were, by express provision, confined in their
operation to engaging in conduct to the extent to which the conduct involves the
use of postal, telegraphic or telephonic services or takes place in a radio or
television broadcast; and
(b) references in those provisions to a corporation included a reference
to a person other than a corporation.
(4) In addition to the effect that this Division has as provided by
subsections (2) and (3), the provisions of Subdivision C
(sections 12CA and 12CB) and Subdivision D (sections 12DA to 12DN)
also have, by force of this subsection, the effect they would have if:
(a) those provisions were, by express provision, confined in their
operation to engaging in conduct in a Territory; and
(b) references in those provisions to a thing done by a corporation in
trade or commerce included a reference to a thing done in the course of the
promotional activities of a professional person.
(1) This Division extends to the engaging in conduct outside Australia
by:
(a) bodies corporate incorporated or carrying on business within
Australia; or
(b) Australian citizens; or
(c) persons ordinarily resident within Australia.
(2) If a claim under section 12GF is made in a proceeding, a person
may rely at a hearing in respect of that proceeding on conduct to which a
provision of this Division extends because of subsection (1) of this
section only if the Minister consents in writing to the reliance.
(3) A person other than the Minister or ASIC may apply to the Court for an
order under subsection 12GM(1) or (2) in a proceeding in respect of conduct to
which a provision of this Division extends because of subsection (1) of
this section only if the Minister consents in writing to the
application.
(4) The Minister must give a consent under subsection (2) or (3) in
respect of a proceeding unless, in the Minister’s opinion:
(a) the law of the country in which the conduct concerned was engaged in
required or specifically authorised the engaging in of the conduct;
and
(b) it is not in the national interest to give the consent.
(1) Subject to this section, this Division binds the Crown in right of the
Commonwealth in so far as the Crown in right of the Commonwealth carries on a
business, either directly or by an authority of the Commonwealth.
(2) Subject to subsections (3), (4),
(5) and (6), this Division applies as if:
(a) the Commonwealth, in so far as it carries on a business otherwise than
by an authority of the Commonwealth; and
(b) each authority of the Commonwealth (whether or not acting as an agent
of the Crown in right of the Commonwealth) in so far as it carries on a
business;
were a corporation.
(3) Nothing in this Division makes the Crown in right of the Commonwealth
liable to a pecuniary penalty or to be prosecuted for an offence.
(4) The protection in subsection (3) does not apply to an authority
of the Commonwealth.
(5) For the purposes of this section, the following transactions do not
amount to carrying on a business:
(a) a transaction involving only persons who are all acting for the Crown
in right of the Commonwealth (and none of whom is an authority of the
Commonwealth);
(b) a transaction involving only persons who are all acting for the same
authority of the Commonwealth;
(c) a transaction involving only the Crown in right of the Commonwealth
and one or more non-commercial authorities of the Commonwealth;
(d) a transaction involving only non-commercial authorities of the
Commonwealth.
(6) Subsection (5) does not limit the things that do not amount to
carrying on a business for the purposes of this section.
(7) For the purposes of this section, an authority of the Commonwealth is
non-commercial if:
(a) it is constituted by only one person; and
(b) it is neither a trading corporation nor a financial
corporation.
(1) Except as provided by subsection (2), Subdivision D
(sections 12DA to 12DN) and Subdivision E (sections 12EA to 12ED) are
not intended to exclude or limit the concurrent operation of any law of a State
or Territory.
(2) If:
(a) an act or omission of a person is both an offence against
section 12GB 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.
(3) Except as expressly provided by Subdivision D (sections 12DA to
12DN) or Subdivision E (sections 12EA to 12ED), nothing in those
Subdivisions is taken to limit, restrict or otherwise affect any right or remedy
a person would have had if that Subdivision had not been enacted.
(4) This Division does not affect the operation of:
(a) the law relating to restraint of trade in so far as that law is
capable of operating concurrently with this Division; or
(b) the law relating to breaches of confidence;
but nothing in the law referred to in paragraph (a) or (b) affects the
interpretation of this Division.
(1) In this Division, unless the contrary intention appears:
acquire, in relation to services, includes accept.
acquisition of services has the meaning given by
section 12BD.
authority, in relation to a State or Territory (including an
external Territory), means:
(a) a body corporate established for a purpose of the State or the
Territory by or under a law of the State or Territory; or
(b) an incorporated company in which the State or the Territory, or a body
corporate referred to in paragraph (a), has a controlling
interest.
authority of the Commonwealth means:
(a) a body corporate established for a purpose of the Commonwealth by or
under a law of the Commonwealth or a law of a Territory; or
(b) an incorporated company in which the Commonwealth, or a body corporate
referred to in paragraph (a), has a controlling interest.
business includes a business not carried on for
profit.
conduct has the meaning given by
subsection (2).
consumer has the meaning given by
section 12BC.
contract has the meaning given by
section 12BE.
corporation means a body corporate that:
(a) is a foreign corporation; or
(b) is a trading corporation formed within the limits of Australia or is a
financial corporation so formed; or
(c) is incorporated in a Territory; or
(d) is the holding company of a body corporate of a kind referred to in
paragraph (a), (b) or (c).
covenant means a covenant (including a promise not under
seal) annexed to or running with an estate or interest in land (whether at law
or in equity and whether or not for the benefit of other land) and
proposed covenant has a corresponding meaning.
engage in conduct has the meaning given by
subsection (2).
Family Court Judge means a Judge of the Family Court
(including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a
Senior Judge).
financial corporation:
(a) means a financial corporation within the meaning of paragraph 51(xx)
of the Constitution; and
(b) includes a body corporate that carries on as its sole or principal
business the business of:
(i) banking (other than State banking not extending beyond the limits of
the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits
of the State concerned).
financial product means:
(a) a facility for taking money on deposit (otherwise than as part-payment
for identified services) made available in the course of conducting a banking
business within the meaning of the Banking Act 1959; or
(b) a security; or
(c) a futures contract; or
(d) a contract of insurance (including a life policy or a sinking fund
policy within the meaning of the Life Insurance Act 1995); or
(e) a retirement savings account within the meaning of the Retirement
Savings Accounts Act 1997; or
(f) a superannuation interest within the meaning of the Superannuation
Industry (Supervision) Act 1993;
but does not include a foreign exchange contract.
financial service means a service that:
(a) consists of providing a financial product; or
(b) is otherwise supplied in relation to a financial product.
foreign corporation means a foreign corporation within the
meaning of paragraph 51(xx) of the Constitution and includes a body corporate
that is incorporated in an external Territory.
misleading has the meaning given by
section 12BB.
price includes a charge of any description.
provision, in relation to an understanding, means any matter
forming part of the understanding.
re-supply of services has the meaning given by
section 12BD.
send includes deliver, and sent and
sender have corresponding meanings.
services includes any rights (including rights in relation
to, and interests in, real or personal property), benefits, privileges or
facilities that are, or are to be, provided, granted or conferred in trade or
commerce but does not include:
(a) the supply of goods within the meaning of the Trade Practices Act
1974; or
(b) the performance of work under a contract of service.
supply:
(a) includes provide, grant or confer when used as a verb in relation to
services; and
(b) has a corresponding meaning when used as a noun;
and supplied and supplier have corresponding
meanings.
supply of services has the meaning given by
section 12BD.
Territory means:
(a) an internal Territory; or
(b) the Territory of Christmas Island; or
(c) the Territory of Cocos (Keeling) Islands.
the Court or the Federal Court means the
Federal Court of Australia.
trade or commerce means trade or commerce within Australia or
between Australia and places outside Australia.
trading corporation means a trading corporation within the
meaning of paragraph 51(xx) of the Constitution.
unsolicited financial services means financial services
supplied to a person without any request made by the person or on the
person’s behalf.
(2) In this Division:
(a) a reference to engaging in conduct is a reference to doing or refusing
to do any act, including:
(i) making, or giving effect to a provision of, a contract or arrangement;
or
(ii) arriving at, or giving effect to a provision of, an understanding;
or
(iii) requiring the giving of, or giving, a covenant; and
(b) a reference to conduct, when that expression is used as a noun
otherwise than as mentioned in paragraph (a), is a reference to doing or
refusing to do any act, including:
(i) making, or giving effect to a provision of, a contract or arrangement;
or
(ii) arriving at, or giving effect to a provision of, an understanding;
or
(iii) requiring the giving of, or giving, a covenant; and
(c) a reference to refusing to do an act includes a reference
to:
(i) refraining (otherwise than inadvertently) from doing that act;
or
(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an act, or to do an act on a
particular condition, includes a reference to the person making it known that
the person will accept applications, offers or proposals for the person to do
that act or to do that act on that condition, as the case may be.
(1) For the purposes of section 12CB and Subdivision D
(sections 12DA to 12DN), if a corporation makes a representation about a
future matter (including the doing of, or the refusing to do, any act) and the
corporation does not have reasonable grounds for making the representation, the
representation is taken to be misleading.
(2) For the purpose of applying subsection (1) to a proceeding
concerning a representation made by a corporation about a future matter, the
corporation is taken not to have had reasonable grounds for making the
representation unless it adduces evidence to the contrary.
(3) Subsection (1) does not limit by implication the meaning of a
reference in this Division to:
(a) a misleading representation; or
(b) a representation that is misleading in a material particular;
or
(c) conduct that is misleading or is likely or liable to
mislead.
(1) For the purposes of this Division, unless the contrary intention
appears, a person is taken to have acquired particular financial services as a
consumer if, and only if:
(a) the price of the services did not exceed the prescribed amount;
or
(b) if the price of the services exceeded the prescribed amount—the
services were of a kind ordinarily acquired for personal, domestic or household
use; or
(c) if the services were acquired by a person within the meaning of
subsection (2) and the price of the services exceeded the prescribed
amount—the services were of a kind ordinarily acquired for business
use.
(2) For the purposes of this Division, person
includes:
(a) a person or corporation employing fewer than 20 people; or
(b) if the person or corporation is engaged in the manufacture of any
goods—a person or corporation employing fewer than 100 people.
(3) For the purposes of subsection (1):
(a) the prescribed amount is:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of this
paragraph—that greater amount; and
(b) subject to paragraph (c), the price of services purchased by a
person is taken to have been the amount paid or payable by the person for the
services; and
(c) if a person purchased services together with other property or
services, or with both other property and services, and a specified price was
not allocated to the services in the contract under which they were purchased,
the price of the services is taken to have been:
(i) the price at which, at the time of the acquisition, the person could
have purchased the services from the supplier without the other property or
services; or
(ii) if, at the time of the acquisition, the services were only available
for purchase from the supplier together with the other property or services but,
at that time, services of the kind acquired were available for purchase from
another supplier without other property or services—the lowest price at
which the person could, at that time, reasonably have purchased services of that
kind from another supplier; or
(iii) if, at the time of the acquisition, services of the kind acquired
were not available for purchase from any supplier except together with other
property or services—the value of the services at that time; and
(d) if a person acquired services otherwise than by way of purchase, the
price of the services is taken to have been:
(i) the price at which, at the time of the acquisition, the person could
have purchased the services from the supplier; or
(ii) if, at the time of the acquisition, the services were not available
for purchase from the supplier, or were available only together with other
property or services, but, at that time, services of the kind acquired were
available for purchase from another supplier—the lowest price at which the
person could, at that time, reasonably have purchased services of that kind from
another supplier; or
(iii) if services of the kind acquired were not available, at the time of
the acquisition, for purchase from any supplier, or were not available except
together with other property or services—the value of the services at that
time; and
(e) without limiting by implication the meaning of the expression
services in subsection 12BA(1), the obtaining of credit by a
person in connection with the person’s acquisition of services is taken to
be the acquisition by the person of a service and any amount by which the amount
paid or payable by the person for the services is increased by reason of the
person’s so obtaining credit is taken to be paid or payable by the person
for that service.
(4) If it is alleged in a proceeding under this Division, or in any other
proceeding in respect of a matter arising under this Division, that a person was
a consumer in relation to particular services, it is presumed that the person
was a consumer in relation to those services unless the contrary is
established.
In this Division, unless the contrary intention appears:
(a) a reference to the supply or acquisition of services includes a
reference to agreeing to supply or acquire services; and
(b) a reference to the supply or acquisition of services includes a
reference to the supply or acquisition of services together with property or
other services, or both; and
(c) a reference to the re-supply of services (the original
services) acquired from a person (the original supplier)
includes a reference to:
(i) a supply of the original services to another person in an altered form
or condition; and
(ii) a supply to another person of other services that are substantially
similar to the original services and could not have been supplied if the
original services had not been acquired by the person who acquired them from the
original supplier.
In this Division:
(a) a reference to a contract includes a reference to a lease of, or a
licence in respect of, land or a building or part of a building (despite the
express references in this Division to such leases or licences); and
(b) a reference to making or entering into a contract, in relation to such
a lease or licence, is a reference to granting or taking the lease or
licence.
(1) A corporation must not, in trade or commerce, engage in conduct in
relation to financial services if the conduct is unconscionable within the
meaning of the unwritten law, from time to time, of the States and
Territories.
(2) This section does not apply to conduct that is prohibited by
section 12CB.
(1) A corporation must not, in trade or commerce, in connection with the
supply or possible supply of financial services to a person, engage in conduct
that is, in all the circumstances, unconscionable.
(2) Without limiting the matters to which the Court may have regard for
the purpose of determining whether a corporation has contravened
subsection (1) in connection with the supply or possible supply of services
to a person (the consumer), the Court may have regard
to:
(a) the relative strengths of the bargaining positions of the corporation
and the consumer; and
(b) whether, as a result of conduct engaged in by the corporation, the
consumer was required to comply with conditions that were not reasonably
necessary for the protection of the legitimate interests of the corporation;
and
(c) whether the consumer was able to understand any documents relating to
the supply or possible supply of the services; and
(d) whether any undue influence or pressure was exerted on, or any unfair
tactics were used against, the consumer or a person acting on behalf of the
consumer by the corporation or a person acting on behalf of the corporation in
relation to the supply or possible supply of the services; and
(e) the amount for which, and the circumstances under which, the consumer
could have acquired identical or equivalent services from a person other than
the corporation.
(3) A corporation is not taken for the purposes of this section to engage
in unconscionable conduct in connection with the supply or possible supply of
financial services to a person merely because the corporation:
(a) institutes legal proceedings in relation to that supply or possible
supply; or
(b) refers a dispute or claim in relation to that supply or possible
supply to arbitration.
(4) For the purpose of determining whether a corporation has contravened
subsection (1) in connection with the supply or possible supply of
financial services to a person:
(a) the Court must not have regard to any circumstances that were not
reasonably foreseeable at the time of the alleged contravention; and
(b) the Court may have regard to conduct engaged in, or circumstances
existing, before the commencement of this section.
(5) A reference in this section to financial services is a reference to
financial services of a kind ordinarily acquired for personal, domestic or
household use.
(1) A corporation must not, in trade or commerce, engage in conduct in
relation to financial services that is misleading or deceptive or is likely to
mislead or deceive.
(1A) This section does not apply to dealings in securities.
(2) Nothing in sections 12DB to 12DN limits by implication the
generality of subsection (1).
(1) A corporation must not, in trade or commerce, in connection with the
supply or possible supply of financial services, or in connection with the
promotion by any means of the supply or use of financial services:
(a) falsely represent that services are of a particular standard, quality,
value or grade; or
(b) falsely represent that a particular person has agreed to acquire
services; or
(c) represent that services have sponsorship, approval, performance
characteristics, uses or benefits they do not have; or
(d) represent that the corporation has a sponsorship, approval or
affiliation it does not have; or
(e) make a false or misleading representation with respect to the price of
services; or
(f) make a false or misleading representation concerning the need for any
services; or
(g) make a false or misleading representation concerning the existence,
exclusion or effect of any condition, warranty, guarantee, right or
remedy.
(2) This section does not apply to dealings in securities.
(1) A corporation must not, in trade or commerce, in connection with the
sale or grant, or the possible sale or grant, of a security that consists of or
includes an interest in land, or in connection with the promotion by any means
of the sale or grant of an interest in land:
(a) represent that the corporation has a sponsorship, approval or
affiliation it does not have; or
(b) make a false or misleading representation concerning the nature of the
interest in the land, the price payable for the security, the location of the
land, the characteristics of the land, the use to which the land is capable of
being put or may lawfully be put or the existence or availability of facilities
associated with the land; or
(c) offer gifts, prizes or other free items with the intention of not
providing them or of not providing them as offered.
(2) A corporation must not use physical force or undue harassment or
coercion in connection with the sale or grant, or the possible sale or grant, of
a security that consists of or includes an interest in land or the payment for
an interest in land.
(3) In this section:
interest, in relation to land, means:
(a) a legal or equitable estate or interest in the land; or
(b) a right of occupancy of the land, or of a building or part of a
building erected on the land, arising by virtue of the holding of shares, or by
virtue of a contract to purchase shares, in an incorporated company that owns
the land or building; or
(c) a right, power or privilege over, or in connection with, the
land.
(1) A corporation must not, in trade or commerce, in connection
with:
(a) the supply or possible supply of financial services; or
(b) the promotion by any means of the supply or use of financial
services;
make a representation about an amount that, if paid, would constitute a
part of the consideration for the supply of the services unless the corporation
also specifies the cash price for the services.
(2) This section does not apply to dealings in securities.
A corporation must not, in trade or commerce, in connection
with:
(a) the supply or possible supply of financial services; or
(b) the promotion by any means of the supply or use of financial
services;
offer gifts, prizes or other free items with the intention of not providing
them, or of not providing them as offered.
A corporation must not, in trade or commerce, engage in conduct that is
liable to mislead the public as to the nature, the characteristics, the
suitability for their purpose or the quantity of any financial
services.
(1) A corporation must not, in trade or commerce, advertise financial
services for supply at a specified price, if there are reasonable grounds, of
which the corporation is aware or ought reasonably to be aware, for believing
that the corporation will not be able to offer for supply those services at that
price:
(a) for a period that is; and
(b) in quantities that are;
reasonable having regard to the nature of the market in which the
corporation carries on business and the nature of the advertisement.
(2) A corporation that has, in trade or commerce, advertised financial
services for supply at a specified price must offer such services for supply at
that price:
(a) for a period that is; and
(b) in quantities that are;
reasonable having regard to the nature of the market in which the
corporation carries on business and the nature of the advertisement.
(3) In a prosecution of a corporation under Subdivision G
(sections 12GA to 12GO) in relation to a failure to offer financial
services to a person (the customer) in accordance with
subsection (2), it is a defence if the corporation establishes
that:
(a) it offered to supply, or to procure another person to supply, services
of the kind advertised to the customer within a reasonable time, in a reasonable
quantity and at the advertised price; or
(b) it offered to supply immediately, or to procure another person to
supply within a reasonable time, equivalent services to the customer in a
reasonable quantity and at the price at which the first-mentioned services were
advertised;
and, in either case, if the offer was accepted by the customer, the
corporation has so supplied, or procured another person to supply,
services.
A corporation must not, in trade or commerce, induce a consumer to
acquire financial services by representing that the consumer will, after the
contract to acquire the services is made, receive a rebate, commission or other
benefit in return for:
(a) giving the corporation the names of prospective customers;
or
(b) otherwise assisting the corporation to supply financial services to
other consumers;
if receipt of the rebate, commission or other benefit is contingent on an
event occurring after that contract is made.
A corporation must not, in trade or commerce, accept payment or other
consideration for financial services if, at the time of the
acceptance:
(a) the corporation intends:
(i) not to supply the services; or
(ii) to supply services materially different from the services in respect
of which the payment or other consideration is accepted; or
(b) there are reasonable grounds, of which the corporation is aware or
ought reasonably to be aware, for believing that the corporation will not be
able to supply the services within the period specified by the corporation or,
if no period is specified, within a reasonable time.
A corporation must not use physical force, or undue harassment or
coercion, in connection with:
(a) the supply or possible supply of financial services to a consumer;
or
(b) the payment for financial services by a consumer.
(1) A corporation contravenes this section if:
(a) the corporation is the promoter of, or (if there are more than one)
one of the promoters of, or is a participant in, a trading scheme to which this
section applies; and
(b) a person who is a participant in that trading scheme, or has applied
or been invited to become a participant in that trading scheme, makes any
payment to or for the benefit of the corporation; and
(c) the person is induced to make the payment because the prospect is held
out to him or her of receiving payments or other benefits in respect of the
introduction (whether by himself or herself or by another person) of other
persons who become participants in that trading scheme.
(2) A corporation also contravenes this section if:
(a) the corporation is the promoter of, or (if there are more than one)
one of the promoters of, is a participant in, or is otherwise acting in
accordance with, a trading scheme to which this section applies; and
(b) the corporation, by holding out to any person the prospect of
receiving payments or other benefits in respect of the introduction (whether by
himself or herself or by another person) of other persons who become
participants in that trading scheme, attempts to induce that person:
(i) if he or she is already a participant in that trading scheme, to make
any payment to or for the benefit of the promoter or any of the promoters or to
or for the benefit of a participant in that trading scheme; or
(ii) if he or she is not already a participant in that trading scheme, to
become such a participant and to make a payment of a kind mentioned in
subparagraph (i).
(3) A corporation also contravenes this section if the corporation
promotes, or takes part in the promotion of, a scheme under which:
(a) a payment is to be made by a person who participates, or who has
applied or been invited to participate, in the scheme to or for the benefit of
the corporation or another person who takes part in the promotion of the scheme
or to or for the benefit of another person who participates in the scheme;
and
(b) the inducement for making the payment is the holding out to the person
who makes or is to make the payment the prospect of receiving payments from
other persons who may participate in the scheme.
(4) For the purposes of subsection (1), (2) or (3):
(a) a prospect of a kind mentioned in that subsection is taken to be held
out to a person whether it is held out so as to confer on him or her a legally
enforceable right or not; and
(b) in determining whether an inducement or attempt to induce is made by
holding out a prospect of a kind mentioned in that subsection, it is sufficient
if a prospect of that kind constitutes or would constitute a substantial part of
the inducement; and
(c) any reference to the making of a payment to or for the benefit of a
person includes a reference to the making of a payment partly to or for the
benefit of that person and partly to or for the benefit of one or more other
persons.
(5) For the purposes of this section, a scheme is a trading scheme to
which this section applies if the scheme includes the following
elements:
(a) securities are to be provided by the person promoting the scheme (the
promoter) or, in the case of a scheme promoted by 2 or more
persons acting in concert (the promoters), are to be provided by
one or more of those persons; and
(b) the securities so provided are to be supplied to or for other persons
under transactions arranged or effected by persons who participate in the scheme
(each of whom is in this section referred to as a participant),
being persons not all of whom are promoters.
(6) For the purposes of subsection (5):
(a) a scheme is taken to include the element referred to in
paragraph (5)(b) whether a participant who is not a promoter acts in
relation to a transaction referred to in that paragraph in the capacity of an
employee or agent of the promoter or of one of the promoters or in any other
capacity; and
(b) a scheme includes any arrangements made in connection with the
carrying on of a business, whether those arrangements are made or recorded
wholly or partly in writing or not; and
(c) a reference to the provision of a security by a person includes a
reference to the provision of a security under arrangements to which that person
is a party.
(1) A corporation must not send a person:
(a) a debit card that allows access to an account that is a financial
product; or
(b) an article that may be used as a debit card of that kind;
except in accordance with subsection (2).
(2) A corporation may send the person the card:
(a) in pursuance of a request in writing by the person who will be under a
liability to the person who issued the card in respect of the use of the card;
or
(b) in renewal or replacement of, or in substitution for:
(i) a card of the same kind previously sent to the first-mentioned person
in pursuance of a request in writing by the person who was under a liability to
the person who issued the card previously so sent in respect of the use of that
card; or
(ii) a card of the same kind previously sent to the first-mentioned person
and used for a purpose for which it was intended to be used.
(3) Subsection (1) applies only in relation to the sending of a card
by or on behalf of the person who issued the card.
(4) A corporation must not take any action that enables a person who has a
credit card to use the card as a debit card except in accordance with a request
in writing by the person.
(5) In this section:
article includes a token, card or document.
credit card means:
(a) any article of a kind commonly known as a credit card; or
(b) any similar article intended for use in obtaining cash, goods or
services on credit;
and includes any article of a kind that persons carrying on business
commonly issue to their customers or prospective customers for use in obtaining
goods or services from those persons on credit.
debit card means an article intended for use by a person in
obtaining access to an account that is:
(a) held by the person for the purpose of withdrawing or depositing cash
or obtaining goods or services; and
(b) a financial product.
(1) A corporation must not, in trade or commerce, assert a right to
payment from a person for unsolicited financial services unless the corporation
has reasonable cause to believe that there is a right to payment.
(2) For the purposes of this section, a corporation is taken to assert a
right to a payment from a person for unsolicited financial services if the
corporation:
(a) makes a demand for the payment or asserts a present or prospective
right to the payment; or
(b) threatens to bring any legal proceedings with a view to obtaining the
payment; or
(c) places, or causes to be placed, the name of the person on a list of
defaulters or debtors, or threatens to do so, with a view to obtaining the
payment; or
(d) invokes, or causes to be invoked, any other collection procedure, or
threatens to do so, with a view to obtaining the payment; or
(e) sends any invoice or other document stating the amount of the payment
or setting out the price of the services and not stating as prominently (or more
prominently) that no claim is made to the payment or to payment of the
price.
(3) For the purposes of this section, an invoice or other document
purporting to have been sent by or on behalf of a corporation is taken to have
been sent by that corporation unless the contrary is established.
(4) In a proceeding against a corporation in respect of a contravention of
this section, the burden lies on the corporation of proving that the corporation
had reasonable cause to believe that there was a right to payment.
(1) Nothing in section 12DA, 12DB, 12DC or 12DF applies to a
prescribed publication of matter by a prescribed information provider, other
than:
(a) a publication of matter in connection with:
(i) the supply or possible supply of financial services; or
(ii) the sale or grant, or possible sale or grant, of securities that
consist of, or include, interests in land; or
(iii) the promotion by any means of the supply or use of financial
services; or
(iv) the promotion by any means of the sale or grant of securities that
consist of, or include, interests in land;
if:
(v) the services were relevant services, or the interests in land were
relevant interests in land, as the case may be, in relation to the prescribed
information provider; or
(vi) the publication was made on behalf of, or pursuant to a contract,
arrangement or understanding with:
(A) a person who supplies financial services of that kind, or who sells or
grants securities of that kind; or
(B) a body corporate that is related to a body corporate that supplies
financial services of that kind, or that sells or grants securities of that
kind; or
(b) a publication of an advertisement.
(2) For the purposes of this section, a publication by a prescribed
information provider is a prescribed publication if:
(a) in any case—the publication was made by the prescribed
information provider in the course of carrying on a business of providing
information; or
(b) in the case of a person who is a prescribed information provider by
virtue of paragraph (a), (b) or (c) of the definition of prescribed
information provider in subsection (3) (whether or not the person
is also a prescribed information provider by virtue of another operation of that
definition)—the publication was by way of a radio or television broadcast
by the prescribed information provider.
(3) In this section:
prescribed information provider means a person who carries on
a business of providing information and, without limiting the generality of the
foregoing, includes:
(a) the holder of a licence granted under the Broadcasting Services Act
1992; and
(b) a person who is the provider of a broadcasting service under a class
licence under that Act; and
(c) the holder of a licence continued in force by subsection 5(1) of the
Broadcasting Services (Transitional Provisions and Consequential Amendments)
Act 1992; and
(d) the Australian Broadcasting Corporation; and
(e) the Special Broadcasting Service Corporation.
relevant financial services, in relation to a prescribed
information provider, means financial services of a kind supplied by the
prescribed information provider or, if the prescribed information provider is a
body corporate, by a body corporate that is related to the prescribed
information provider.
relevant interests in land, in relation to a prescribed
information provider, means interests in land, being interests of a kind sold or
granted by the prescribed information provider or, if the prescribed information
provider is a body corporate, by a body corporate that is related to the
prescribed information provider.
If:
(a) the proper law of a contract for the supply by a corporation of
financial services to a consumer would, but for a term that it should be the law
of some other country or a term to the like effect, be the law of any part of
Australia; or
(b) a contract for the supply by a corporation of financial services to a
consumer contains a term that purports to substitute, or has the effect of
substituting, provisions of the law of some other country, or of a State or
Territory, for all or any of the provisions of this Subdivision
(sections 12EA to 12ED);
this Subdivision applies to the contract notwithstanding that
term.
(1) A term of a contract (including a term that is not set out in the
contract but is incorporated in the contract by another term of the contract) is
void if it purports to exclude, restrict or modify or has the effect of
excluding, restricting or modifying:
(a) the application of all or any of the provisions of this Subdivision
(sections 12EA to 12ED); or
(b) the exercise of a right conferred by such a provision; or
(c) any liability of the corporation for breach of a condition or warranty
implied by such a provision.
(2) A term of a contract is not taken to exclude, restrict or modify the
application of a provision of this Subdivision unless the term does so expressly
or is inconsistent with that provision.
(1) Subject to this section, a term of a contract for the supply by a
corporation of financial services other than services of a kind ordinarily
acquired for personal, domestic or household use is not void under
section 12EB merely because the term limits the liability of the
corporation for a breach of a condition or warranty to:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied
again.
(2) Subsection (1) does not apply in relation to a term of a contract
if the person to whom the services were supplied establishes that it is not fair
or reasonable for the corporation to rely on that term of the
contract.
(3) In determining for the purposes of subsection (2) whether or not
reliance on a term of a contract is fair or reasonable, a court must have regard
to all the circumstances of the case and, in particular, to the following
matters:
(a) the strength of the bargaining positions of the corporation and the
person to whom the services were supplied (the buyer) relative to
each other, taking into account, among other things, the availability of
equivalent services and suitable alternative sources of supply;
(b) whether the buyer received an inducement to agree to the term or, in
agreeing to the term, had an opportunity to acquire the services or equivalent
services from any source of supply under a contract that did not include that
term;
(c) whether the buyer knew or ought reasonably to have known of the
existence and extent of the term (having regard, among other things, to any
custom of the trade and any previous course of dealing between the
parties).
(1) In every contract for the supply of financial services by a
corporation to a consumer in the course of a business, there is an implied
warranty that:
(a) the services will be rendered with due care and skill; and
(b) any materials supplied in connection with those services will be
reasonably fit for the purpose for which they are supplied.
(2) If:
(a) a corporation supplies financial services to a consumer in the course
of a business; and
(b) the consumer, expressly or by implication, makes known to the
corporation:
(i) any particular purpose for which the services are required;
or
(ii) the result that he or she desires the services to achieve;
there is an implied warranty that:
(c) the services supplied under the contract for the supply of the
services; and
(d) any materials supplied in connection with those services;
will be reasonably fit for that purpose or are of such a nature and quality
that they might reasonably be expected to achieve that result, except if the
circumstances show that the consumer does not rely, or that it is unreasonable
for him or her to rely, on the corporation’s skill or judgment.
(3) A reference in this section to financial services does not include a
reference to services that are, or are to be, provided, granted or conferred
under a contract of insurance.
(1) ASIC has the function of monitoring and promoting market integrity and
consumer protection in relation to:
(a) the Australian financial system; and
(b) the provision of financial services.
Without limiting paragraph (b), ASIC has the function of promoting the
adoption of, and approving and monitoring compliance with, industry standards
and codes of practice (including standards and codes in relation to the
resolution of disputes between the providers of financial services and
consumers).
(2) ASIC must not approve an industry code under subsection (1)
unless ASIC is satisfied with the procedures for alternative dispute resolution,
having regard to any of the following guidelines:
(a) they do not permit a complaint or dispute to be considered unless it
has first been lodged with the relevant corporation and:
(i) has been resolved by the corporation, but not to the satisfaction of
the complainant; or
(ii) has not been resolved by the corporation and 90 days have elapsed
since the complaint or dispute was lodged;
(b) they provide for any systemic, persistent or deliberate conduct to be
reported to ASIC;
(c) they operate free of charge to the complainant;
(d) they cover a sufficiently broad range of complaints, with the terms of
reference of the scheme to be determined after consultation with consumer
organisations and ASIC;
(e) they provide for independence from the parties to the
complaint;
(f) they are overseen by a body which includes consumer representation
(appointed or approved by the Minister with responsibility for consumer affairs)
and a person appointed by ASIC;
(g) they accord with the principles of natural justice (including that
information used by the decision-maker is provided to the complainant unless
prohibited by law, and that reasons for decisions are given in
writing);
(h) they provide for decisions to be made by reference to what is fair in
all the circumstances, observing applicable law and relevant judicial authority
and having regard to good practice in the relevant industry;
(i) they have appropriate published procedures, including suitable
standards of timeliness;
(j) they include arrangements for appropriate promotion of the
procedures;
(k) they are supported by adequate resources, including staff whose
responsibility is to assist consumers in making their complaints, if necessary
by investigating the conduct of a financial services provider;
(l) decisions made under them will be observed by the relevant
corporations;
(m) they provide adequate remedies;
(n) they provide for the maintenance and publication of appropriate
statistics on its operations;
(o) they provide for the provision to ASIC and the relevant industry
associations, details of the decisions made in respect of all complaints, or a
representative selection of complaints, including the reasons for the decisions
but excluding any information that would identify any of the parties to the
complaint.
(3) ASIC may revoke an approval given under subsection (1) if ASIC is
satisfied that the code no longer meets, or substantially meets, the guidelines
of subsection (2).
In this Subdivision, unless the contrary intention appears:
(a) a reference to the Court in relation to a matter is a reference to any
court having jurisdiction in the matter; and
(b) a reference to the Federal Court is a reference to the Federal Court
of Australia; and
(c) a reference to a judgment is a reference to a judgment, decree or
order, whether final or interlocutory.
(1) A person who:
(a) contravenes; or
(b) aids, abets, counsels or procures a person to contravene; or
(c) induces, or attempts to induce, a person whether by threats or
promises or otherwise, to contravene; or
(d) is in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of; or
(e) conspires with others to contravene;
a provision of Subdivision D (sections 12DA to 12DN) other than
section 12DA, is guilty of an offence punishable on conviction:
(f) in the case of a person who is not a body corporate—by a fine
not exceeding 400 penalty units; or
(g) in the case of a person who is a body corporate—by a fine not
exceeding 2,000 penalty units.
(2) If:
(a) a person is convicted of 2 or more offences constituted by, or
relating to, contraventions of the same provision of Subdivision D
(sections 12DA to 12DN); and
(b) the contraventions appear to the Court to have been of the same nature
or a substantially similar nature and to have occurred at or about the same
time;
the Court must not, in respect of the offences, impose on the person fines
that, in the aggregate, exceed the maximum fine that would be applicable in
respect of one offence by that person against that provision. This applies
whether or not the person is also convicted of an offence or offences
constituted by, or relating to, another contravention or other contraventions of
that provision that were of a different nature or occurred at a different
time.
(3) If:
(a) a person is convicted of an offence constituted by, or relating to, a
contravention of a provision of Subdivision D (sections 12DA to 12DN);
and
(b) a fine has, or fines have, previously been imposed on the person by
the Court for an offence or offences constituted by, or relating to, another
contravention or other contraventions of the same provision, being a
contravention that, or contraventions each of which, appears to the Court to
have been of the same nature as, or of a substantially similar nature to, and to
have occurred at or about the same time as, the contravention referred to in
paragraph (a);
the Court must not, in respect of the offence referred to in
paragraph (a), impose on the person a fine that exceeds the amount (if any)
by which the maximum fine applicable (under subsection (1)) in respect of
the offence referred to in paragraph (a) is greater than the amount of the
fine, or the sum of the amounts of the fines, referred to in paragraph (b).
This applies whether or not a fine has, or fines have, also previously been
imposed on the person for an offence or offences constituted by, or relating to,
a contravention or contraventions of that provision that were of a different
nature or occurred at a different time.
(4) In proceedings under this section against a person for contravening a
provision of Subdivision D (sections 12DA to 12DN), the Court
may:
(a) grant an injunction under section 12GD against the person in
relation to:
(i) the conduct that constitutes, or is alleged to constitute, the
contravention; or
(ii) other conduct of that kind; or
(b) make an order under section 12GE in relation to the
contravention.
(5) Sections 5, 7 and 7A of the Crimes Act 1914 do not apply
in relation to an offence against subsection (1).
(6) A prosecution for an offence against subsection (1) may be
commenced within 3 years after the commission of the offence.
(1) If a person on whom a fine has been imposed for an offence against
section 12GB or subsection 12GN(5) defaults in payment of the fine, a Court
may:
(a) exercise any power that the Court has apart from this section with
respect to the enforcement and recovery of fines imposed by the Court;
or
(b) make an order, on the application of the Minister or ASIC, declaring
that the fine is to have effect, and may be enforced, as if it were a judgment
debt under a judgment of the Court.
(2) If a person in relation to whom an order is made under
subsection (1) in respect of a fine gives security for the payment of the
fine, the Court must cancel the order in respect of the fine.
(3) If the Court makes an order in relation to a person in respect of a
fine, the Court may, at any time before the order is executed in respect of the
fine, allow the person a specified time in which to pay the fine or allow the
person to pay the fine by specified instalments, and, in that case:
(a) the order must not be executed unless the person fails to pay the fine
within that time or fails to pay an instalment at or before the time when it
becomes payable, as the case may be; and
(b) if the person pays the fine within that time or pays all the
instalments, as the case may be, the order is taken to have been discharged in
respect of the fine.
(4) Subject to subsection (7), an order under subsection (1) in
respect of a fine ceases to have effect:
(a) on payment of the fine; or
(b) if the fine is not paid—on full compliance with the
order.
(5) The term of a sentence of imprisonment imposed by an order under a law
of a State or Territory applied by section 15A of the Crimes Act
1914 in respect of a fine must be calculated at the rate of one day’s
imprisonment for each $25 of the amount of the fine that is from time to time
unpaid.
(6) Subject to subsection (7), if a person is required to serve
periods of imprisonment under an order or orders under subsection (1) in
respect of 2 or more fines, those periods of imprisonment must be served
consecutively.
(7) Subject to subsection (8), if:
(a) a person would, but for this subsection, be required under an order or
orders under subsection (1) in respect of 3 or more fines to serve periods
of imprisonment in respect of those fines exceeding in the aggregate 3 years;
and
(b) those fines were imposed (whether or not in the same proceedings) for
offences constituted by contraventions that occurred within a period of 2 years,
being contraventions that appear to the Court to have been of the same nature or
a substantially similar nature;
the Court must, by order, declare that the order or orders are to cease to
have effect in respect of those fines after the person has served an aggregate
of 3 years’ imprisonment in respect of those fines.
(8) If subsection (7) would, but for this subsection, apply to a
person with respect to offences committed by the person within 2 or more
overlapping periods of 2 years, the Court must make an order under that
subsection with respect to one only of those periods, being whichever period
would give the person the maximum benefit from the application of that
subsection.
(9) For the purposes of subsection (8), the Court may vary or revoke
an order made under subsection (7).
(10) Paragraphs 15A(1)(b), (c) and (d) of the Crimes Act 1914 do
not apply with respect to fines referred to in subsection (1).
(1) If, on the application of the Minister, ASIC or any other person, the
Court is satisfied that a person has engaged, or is proposing to engage, in
conduct that constitutes or would constitute:
(a) a contravention of a provision of this Division; or
(b) attempting to contravene such a provision; or
(c) aiding, abetting, counselling or procuring a person to contravene such
a provision; or
(d) inducing, or attempting to induce, whether by threats, promises or
otherwise, a person to contravene such a provision; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision;
the Court may grant an injunction in such terms as the Court determines to
be appropriate.
(2) If an application for an injunction under subsection (1) has been
made, the Court may, if the Court determines it to be appropriate, grant an
injunction by consent of all the parties to the proceedings, whether or not the
Court is satisfied that a person has engaged, or is proposing to engage, in
conduct of a kind mentioned in subsection (1).
(3) If in the opinion of the Court it is desirable to do so, the Court may
grant an interim injunction pending determination of an application under
subsection (1).
(4) The Court may rescind or vary an injunction granted under
subsection (1) or (3).
(5) The power of the Court to grant an injunction restraining a person
from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind; and
(c) whether or not there is an imminent danger of substantial damage to
any person if the first-mentioned person engages in conduct of that
kind.
(6) The power of the Court to grant an injunction requiring a person to do
an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do that act or thing;
and
(b) whether or not the person has previously refused or failed to do that
act or thing; and
(c) whether or not there is an imminent danger of substantial damage to
any person if the first-mentioned person refuses or fails to do that act or
thing.
(7) If the Minister or ASIC makes an application to the Court for the
grant of an injunction under this section, the Court must not require the
applicant or any other person, as a condition of granting an interim injunction,
to give any undertakings as to damages.
(8) If, in a case to which subsection (7) does not apply:
(a) the Court would, but for this subsection, require a person to give an
undertaking as to damages or costs; and
(b) the Minister gives the undertaking;
the Court must accept the undertaking by the Minister and must not require
a further undertaking from any other person.
Without limiting the generality of section 12GD, if, on the
application of the Minister or ASIC, the Court is satisfied that a person has
engaged in conduct constituting a contravention of a provision of Subdivision D
(sections 12DA to 12DN), the Court may make either or both of the following
orders:
(a) an order requiring that person or a person involved in the
contravention to disclose to the public, to a particular person or to persons
included in a particular class of persons, in such manner as is specified in the
order, such information, or information of such a kind, as is so specified,
being information that is in the possession of the person to whom the order is
directed or to which that person has access;
(b) an order requiring that person or a person involved in the
contravention to publish, at his or her own expense, in a manner and at times
specified in the order, advertisements the terms of which are specified in, or
are to be determined in accordance with, the order.
(1) A person who suffers loss or damage by conduct of another person that
contravenes a provision of Subdivision D (sections 12DA to 12DN) may
recover the amount of the loss or damage by action against that other person or
against any person involved in the contravention.
(2) An action under subsection (1) may be commenced within 3 years
after the date on which the cause of action accrued.
In a proceeding against a person under section 12GF or in an
application under subsection 12GM(2) for an order against a person, a finding of
any fact by a court made in proceedings under section 12GD or 12GE, or for
an offence against section 12GB, in which that person has been found to
have contravened, or to have been involved in a contravention of, a provision of
this Division is prima facie evidence of that fact. The finding may be proved by
production of a document under the seal of the court from which the finding
appears.
(1) If, in a proceeding under this Subdivision in respect of conduct
engaged in by a body corporate, being conduct in relation to which the Division
applies, it is necessary to establish the state of mind of the body corporate,
it is sufficient to show that a director, employee or agent of the body
corporate, being a director, employee or agent by whom the conduct was engaged
in within the scope of the person’s actual or apparent authority, had that
state of mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the
scope of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement
(whether express or implied) of a director, employee or agent of the body
corporate, if the giving of the direction, consent or agreement is within the
scope of the actual or apparent authority of the director, employee or
agent;
is taken, for the purposes of this Division, to have been engaged in also
by the body corporate.
(3) If, in a proceeding under this Subdivision in respect of conduct
engaged in by a person other than a body corporate, being conduct in relation to
which a provision of this Division applies, it is necessary to establish the
state of mind of the person, it is sufficient to show that an employee or agent
of the person, being an employee or agent by whom the conduct was engaged in
within the scope of the employee’s or agent’s actual or apparent
authority, had that state of mind.
(4) Conduct engaged in on behalf of a person (the principal)
other than a body corporate:
(a) by an employee or agent of the person within the scope of the actual
or apparent authority of the employee or agent; or
(b) by any other person at the direction or with the consent or agreement
(whether express or implied) of an employee or agent of the principal, if the
giving of the direction, consent or agreement is within the scope of the actual
or apparent authority of the employee or agent;
is taken, for the purposes of this Division, to have been engaged in also
by the principal.
(5) A reference in this section to the state of mind of a person includes
a reference to the knowledge, intention, opinion, belief or purpose of the
person and the person’s reasons for the person’s intention, opinion,
belief or purpose.
(1) Subject to subsection (3), in a prosecution under this
Subdivision in relation to a contravention of a provision of Subdivision D
(sections 12DA to 12DN), it is a defence if the defendant
establishes:
(a) that the contravention in respect of which the proceeding was
instituted was due to reasonable mistake; or
(b) that the contravention in respect of which the proceeding was
instituted was due to reasonable reliance on information supplied by another
person; or
(c) that:
(i) the contravention in respect of which the proceeding was instituted
was due to the act or default of another person, to an accident or to some other
cause beyond the defendant’s control; and
(ii) the defendant took reasonable precautions and exercised due diligence
to avoid the contravention.
(2) In paragraphs (1)(b) and (c), another person does
not include a person who was:
(a) an employee or agent of the defendant; or
(b) in the case of a defendant being a body corporate, a director,
employee or agent of the defendant;
at the time when the contravention occurred.
(3) If a defence provided by subsection (1) involves an allegation
that a contravention was due to reliance on information supplied by another
person or to the act or default of another person, the defendant is not, without
leave of the Court, entitled to rely on that defence unless he or she has, not
later than 7 days before the day on which the hearing of the proceeding
commences, served on the person by whom the proceeding was instituted a notice
in writing giving such information that would identify or assist in the
identification of the other person as was then in his or her
possession.
(4) In a proceeding under this Subdivision in relation to a contravention
of a provision of Subdivision D (sections 12DA to 12DN) committed by the
publication of an advertisement, it is a defence if the defendant establishes
that he or she is a person whose business it is to publish or arrange for the
publication of advertisements and that he or she received the advertisement for
publication in the ordinary course of business and did not know and had no
reason to suspect that its publication would amount to a contravention of a
provision of Subdivision D.
(1) Jurisdiction is conferred on the Federal Court in any
matter:
(a) arising under this Division; or
(b) arising under Part 3 in its application in relation to an
investigation of a contravention of this Division;
in respect of which a civil proceeding may be instituted under this
Subdivision or under Part 3 as so applying.
(2) With respect to any matter arising under this Division in respect of
which a civil proceeding is instituted by a person other than the Minister or
ASIC:
(a) the several courts of the States are invested with federal
jurisdiction within the limits of their several jurisdictions, whether those
limits are as to locality, subject-matter or otherwise; and
(b) subject to the Constitution, jurisdiction is conferred on the several
courts of the Territories.
(3) Nothing in subsection (2) is taken to enable an inferior court of
a State or Territory to grant a remedy other than a remedy of a kind that the
court is able to grant under the law of that State or Territory.
(4) The jurisdiction conferred by subsection (1) on the Federal Court
is exclusive of the jurisdiction of any other court other than the jurisdiction
of the several courts of the States and Territories under subsection (2)
and the jurisdiction of the High Court under section 75 of the
Constitution.
(1) If:
(a) a civil proceeding instituted by a person other than the Minister or
ASIC is pending in the Federal Court; and
(b) a matter for determination in the proceeding arose under this
Division;
the Federal Court may, subject to subsection (2), upon the application
of a party or of the Federal Court’s own motion, transfer the matter to a
court of a State or Territory and may also transfer to that court any other
matter for determination in the proceeding.
(2) The Federal Court must not transfer a matter to another court under
subsection (1) unless the other court has power to grant the remedies
sought before the Federal Court in the matter and it appears to the Federal
Court that:
(a) the matter arises out of or is related to a proceeding that is pending
in the other court; or
(b) it is otherwise in the interests of justice that the matter be
determined by the other court.
(3) If the Federal Court transfers a matter to another court under
subsection (1):
(a) further proceedings in the matter must be as directed by the other
court; and
(b) the judgment of the other court in the matter is enforceable
throughout Australia and the external Territories as if it were a judgment of
the Federal Court.
(4) If:
(a) a proceeding is pending in a court (other than the Supreme Court) of a
State or Territory; and
(b) a matter for determination in the proceeding arose under this
Division;
the court must, if directed to do so by the Federal Court, transfer to the
Federal Court the matter and such other matters for determination in the
proceeding, as the Federal Court decides, the determination of which would,
apart from any law of a State or of the Northern Territory relating to
cross-vesting of jurisdiction, be within the jurisdiction of the Federal
Court.
(5) If:
(a) a proceeding is pending in a court (other than the Supreme Court) of a
State or Territory; and
(b) a matter for determination in the proceeding arose under this
Division;
the court may, subject to subsection (6), upon the application of a
party or of the court’s own motion, transfer the matter to a court (other
than the Supreme Court) of a State or Territory other than the State or
Territory referred to in paragraph (a).
(6) The court must not transfer the matter to another court under
subsection (5) unless the other court has power to grant the remedies
sought in the matter and it appears to the court that:
(a) the matter arises out of or is related to a proceeding that is pending
in the other court; or
(b) it is otherwise in the interests of justice that the matter be
determined by the other court.
(7) If a court transfers a matter to another court under
subsection (5), further proceedings in the matter must be as directed by
the other court.
(1) If:
(a) a civil proceeding is pending in the Federal Court; and
(b) a matter for determination in the proceeding arises under this
Division;
the Federal Court may, on the application of a party to the proceeding or
of its own motion, transfer the proceeding to the Family Court.
(3) Subject to subsection (4), if a proceeding is transferred to the
Family Court:
(a) the Family Court has jurisdiction to hear and determine the
proceeding; and
(b) the Family Court also has jurisdiction to hear and determine matters
not otherwise within its jurisdiction (whether under paragraph (a) or
otherwise):
(i) that are associated with matters arising in the proceeding;
or
(ii) that, apart from subsection 32(1) of the Federal Court of
Australia Act 1976, the Federal Court would have had jurisdiction to hear
and determine in the proceeding; and
(c) the Family Court may, in and in relation to the proceeding:
(i) grant such remedies; and
(ii) make orders of such kinds; and
(iii) issue, and direct the issue of, writs of such kinds;
as the Federal Court could have in and in relation to the proceeding;
and
(d) remedies, orders and writs granted, made or issued by the Family Court
in and in relation to the proceeding have effect, and may be enforced by the
Family Court, as if they had been granted, made or issued by the Federal Court;
and
(e) appeals lie from judgments of the Family Court given in and in
relation to the proceeding as if the judgments were judgments of the Federal
Court constituted by a single Judge of that Court, and do not otherwise lie;
and
(f) subject to paragraphs (a) to (e) (inclusive), this Division, the
regulations, the Federal Court of Australia Act 1976, the Rules of Court
made under that Act, and other laws of the Commonwealth, apply in and in
relation to the proceeding as if:
(i) a reference to the Federal Court (other than in the expression
the Court or a Judge) included a reference to the Family Court;
and
(ii) a reference to a Judge of the Federal Court (other than in the
expression the Court or a Judge) included a reference to a Family
Court Judge; and
(iii) a reference to the expression the Court or a Judge
when used in relation to the Federal Court included a reference to a Family
Court Judge sitting in Chambers; and
(iv) a reference to a Registrar of the Federal Court included a reference
to a Registrar of the Family Court; and
(v) any other necessary changes were made.
(4) If any difficulty arises in the application of paragraphs (3)(c),
(d) and (f) in or in relation to a particular proceeding, the Family Court may,
on the application of a party to the proceeding or of its own motion, give such
directions, and make such orders, as it considers appropriate to resolve the
difficulty.
(5) An appeal does not lie from a decision of the Federal Court in
relation to the transfer of a proceeding under this Division to the Family
Court.
(1) Without limiting the generality of section 12GD, if, in a
proceeding instituted under, or for an offence against, this Division, the Court
finds that a person who is a party to the proceeding has suffered, or is likely
to suffer, loss or damage by conduct of another person that was engaged in
contravention of a provision of this Division, the Court may, whether or not it
grants an injunction under section 12GD or makes an order under
section 12GE or 12GF, make such order or orders as it thinks appropriate
against the person who engaged in the conduct or a person who was involved in
the contravention (including all or any of the orders mentioned in
subsection (7) of this section) if the Court considers that the order or
orders concerned will compensate the first-mentioned person in whole or in part
for the loss or damage or will prevent or reduce the loss or damage.
(2) Without limiting the generality of section 12GD, the Court may,
on the application of:
(a) a person who has suffered, or is likely to suffer, loss or damage by
conduct of another person that was engaged in contravention of a provision of
this Division; or
(b) ASIC in accordance with subsection (3) on behalf of such a person
or persons;
make such order or orders as the Court thinks appropriate against the
person who engaged in the conduct or a person who was involved in the
contravention (including all or any of the orders mentioned in
subsection (7)) if the Court considers that the order or orders concerned
will:
(c) compensate the person who made the application, or the person or any
of the persons on whose behalf the application was made, in whole or in part for
the loss or damage; or
(d) prevent or reduce the loss or damage suffered, or likely to be
suffered, by such a person or persons.
(3) If, in a proceeding instituted for an offence against
section 12GB or instituted by ASIC or the Minister under section 12GD,
a person is found to have engaged in conduct in contravention of a provision of
this Division, ASIC may make an application under subsection (2) on behalf
of one or more persons identified in the application who have suffered, or are
likely to suffer, loss or damage by the conduct. ASIC must not make such an
application except with the consent in writing given before the application is
made by the person, or by each of the persons, on whose behalf the application
is made.
(4) An application may be made under subsection (2) in relation to a
contravention of this Division notwithstanding that a proceeding has not been
instituted under another provision of this Part in relation to that
contravention.
(5) An application under subsection (2) may be commenced:
(a) in the case of conduct in contravention of Subdivision C
(sections 12CA and 12CB)—at any time within 2 years after the day on
which the cause of action accrued; or
(b) in the case of conduct in contravention of Subdivision D
(sections 12DA to 12DN)—at any time within 3 years after the day on
which the cause of action accrued.
(6) For the purpose of determining whether to make an order under this
section in relation to a contravention of Subdivision C (sections 12CA and
12CB), the Court may have regard to the conduct of parties to the proceeding
since the contravention occurred.
(7) Without limiting the generality of subsections (1) and (2), the
orders referred to in those subsections include the following:
(a) an order declaring the whole or any part of a contract made between
the person who suffered, or is likely to suffer, the loss or damage and the
person who engaged in the conduct or a person who was involved in the
contravention constituted by the conduct, or of a collateral arrangement
relating to such a contract, to be void and, if the Court thinks fit, to have
been void ab initio or at all times on and after a date before the date
on which the order is made;
(b) an order varying such a contract or arrangement in such manner as is
specified in the order and, if the Court thinks fit, declaring the contract or
arrangement to have had effect as so varied on and after a date before the date
on which the order is made;
(c) an order refusing to enforce any or all of the provisions of such a
contract;
(d) an order directing the person who engaged in the conduct or a person
who was involved in the contravention constituted by the conduct to refund money
or return property to the person who suffered the loss or damage;
(e) an order directing the person who engaged in the conduct or a person
who was involved in the contravention constituted by the conduct to pay to the
person who suffered the loss or damage the amount of the loss or
damage;
(f) an order directing the person who engaged in the conduct or a person
who was involved in the contravention constituted by the conduct, at his or her
own expense, to supply specified services to the person who suffered, or is
likely to suffer, the loss or damage;
(g) an order, in relation to an instrument creating or transferring an
interest in land, directing the person who engaged in the conduct or a person
who was involved in the contravention constituted by the conduct to execute an
instrument that:
(i) varies, or has the effect of varying, the first-mentioned instrument;
or
(ii) terminates or otherwise affects, or has the effect of terminating or
otherwise affecting, the operation or effect of the first-mentioned
instrument.
(8) The powers conferred on the Court under this section in relation to a
contract or covenant do not affect any powers that any other court may have in
relation to the contract or covenant in proceedings instituted in that other
court in respect of the contract or covenant.
(9) In subsection (7):
interest, in relation to land, has the same meaning as in
subsection 12DC(3).
(1) If:
(a) proceedings have been commenced against a person for an offence
against section 12GB; or
(b) an application has been made under section 12GD for an injunction
against a person in relation to a contravention of a provision of this Division;
or
(c) an action has been commenced under subsection 12GF(1) against a person
in relation to a contravention of a provision of Subdivision D
(sections 12DA to 12DN); or
(d) an application for an order under subsection 12GM(2) or (3) has been
or may be made against a person in relation to a contravention of a provision of
this Division;
the Court may, on the application of the Minister or ASIC, make an order or
orders mentioned in subsection (2) if the Court is satisfied
that:
(e) it is necessary or desirable to do so for the purpose of preserving
money or other property held by or on behalf of a person referred to in
paragraph (a), (b), (c) or (d), as the case may be (the relevant
person), if the relevant person is liable or may become liable under
this Division to pay money by way of a fine, damages, compensation, refund or
otherwise or to transfer, sell or refund other property; and
(f) it will not unduly prejudice the rights and interests of any other
person.
(2) The orders referred to in subsection (1) are the
following:
(a) an order prohibiting, either absolutely or subject to conditions, a
person who is indebted to the relevant person or to an associate of the relevant
person from making a payment in total or partial discharge of the debt to, or to
another person at the direction or request of, the person to whom the debt is
owed;
(b) an order prohibiting, either absolutely or subject to conditions, a
person who is holding money or other property on behalf of the relevant person
or on behalf of an associate of the relevant person from paying all or any of
the money, or transferring, or otherwise parting with possession of, the other
property, to, or to another person at the direction or request of, the person on
whose behalf the money or other property is held;
(c) an order prohibiting, either absolutely or subject to conditions, the
taking or sending by any person of money of the relevant person or of an
associate of the relevant person to a place outside the State or Territory in
which the money is held;
(d) an order prohibiting, either absolutely or subject to conditions, the
taking, sending or transfer by any person of other property of the relevant
person or of an associate of the relevant person to a place outside the State or
Territory in which the other property is located;
(e) an order appointing, if the relevant person is a natural person, a
receiver or trustee of the property or of part of the property of the relevant
person with such powers as are specified in the order.
(3) Subject to subsection (4), an order under this section may be
expressed to operate:
(a) for a period specified in the order; or
(b) until proceedings under any other provision of this Part in relation
to which the order was made have been concluded.
(4) An order under this section made on an application ex parte
must not be expressed to operate for a period exceeding 30 days.
(5) A person who contravenes or fails to comply with an order by the Court
under this section that is applicable to the person is guilty of an offence
punishable on conviction:
(a) in the case of a person not being a body corporate—by a fine not
exceeding 200 penalty units; or
(b) in the case of a person being a body corporate—by a fine not
exceeding 1,000 penalty units.
(6) Nothing in this section affects the powers that the Court has apart
from this section.
(7) This section has effect subject to the Bankruptcy Act
1966.
(8) A reference in this section to a person who is an associate of a
relevant person is a reference to:
(a) a person holding money or other property on behalf of the relevant
person; or
(b) if the relevant person is a body corporate—a wholly owned
subsidiary of the relevant person.
(1) The Secretary of the Department may accept a written undertaking given
by a person for the purposes of this section in connection with a matter in
relation to which the Secretary has a power or function under this
Division.
(2) The person may withdraw or vary the undertaking at any time, but only
with the consent of the Secretary of the Department.
(3) If the Secretary of the Department considers that the person who gave
the undertaking has breached any of its terms, the Secretary may apply to the
Court for an order under subsection (4).
(4) If the Court is satisfied that the person has breached a term of the
undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up
to the amount of any financial benefit that the person has obtained directly or
indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the person to
compensate any other person who has suffered loss or damage as a result of the
breach;
(d) any other order that the Court considers appropriate.
(1) The powers (and any restrictions on them) in this Subdivision are in
addition to any powers ASIC has under Part 3 when investigating a
contravention, or suspected contravention, of a provision of this Division. The
powers may be used only when ASIC is so investigating.
(2) For the purposes of Part 3, an exercise of a power in this
Subdivision is taken to be an exercise of that power under, or for the purposes
of, Part 3.
(1) If:
(a) a proceeding is instituted against a corporation or other person under
section 12GD; or
(b) an application is made under section 12GE or subsection 12GM(2)
or 12GN(1) for an order against a corporation or other person;
ASIC must, at the request of the corporation or other person and upon
payment of the prescribed fee (if any), give to the corporation or other
person:
(c) a copy of every document that has been given to, or obtained by, ASIC
in connection with the matter to which the application, notice or proceeding
relates and tends to establish the case of the corporation or other person;
and
(d) a copy of any other document in ASIC’s possession that comes to
ASIC’s attention in connection with the matter to which the application,
notice or proceeding relates and tends to establish the case of the corporation
or other person;
not being a document obtained from the corporation or other person or
prepared by an officer or professional adviser of ASIC.
(2) If ASIC does not comply with a request under subsection (1), the
Court must, subject to subsection (3), upon application by the corporation
which, or other person who, made the request, make an order directing ASIC to
comply with the request.
(3) The Court may refuse to make an order under subsection (2) in
respect of a document or part of a document if the Court considers it
inappropriate to make the order by reason that the disclosure of the contents of
the document or part of the document would prejudice any person, or for any
other reason.
(4) Before the Court gives a decision on an application under
subsection (2), the Court may require any documents to be produced to it
for inspection.
(5) An order under this section may be expressed to be subject to
conditions specified in the order.
(1) Prosecutions for offences:
(a) against this Division; or
(b) against Part 3 in its application in relation to an investigation
of a contravention of this Division;
must be brought only in the Court.
(2) Jurisdiction is conferred on the Court to hear and determine such
prosecutions.
(3) Proceedings before the Court under this section, other than
proceedings instituted by:
(a) ASIC; or
(b) a person authorised in writing by ASIC; or
(c) a person authorised in writing by the Secretary of the
Department;
must not be instituted except with the consent in writing of the Minister
or of a person authorised by the Minister in writing to give such
consents.
(1) Subject to this section, a person may institute a proceeding in the
Court seeking, in relation to a matter arising under this Division or under
Part 3 in its application in relation to an investigation of a
contravention of this Division, the making of:
(a) a declaration in relation to the operation or effect of any provision
of:
(i) this Division other than the provisions of Subdivision E
(sections 12EA to 12ED); or
(ii) Part 3 as so applying; or
(b) a declaration in relation to the validity of any act or thing done,
proposed to be done or purporting to have been done, under this Division or
Part 3 as so applying; or
(c) an order by way of, or in the nature of, prohibition, certiorari or
mandamus;
or both such a declaration and such an order, and the Court has
jurisdiction to hear and determine the proceeding.
(2) The Minister may institute a proceeding in the Court under this
section and may intervene in any proceeding instituted in the Court under this
section or in a proceeding instituted in any other court in which a party is
seeking the making of a declaration or an order of a kind mentioned in
subsection (1).
(3) In this section, proceeding includes a
cross-proceeding.
(1) ASIC may make such investigation as it thinks expedient for the due
administration of the corporations legislation (other than the excluded
provisions) where it has reason to suspect that there may have been
committed:
(a) a contravention of the corporations legislation (other than the
excluded provisions); or
(b) a contravention of a law of the Commonwealth, or of a State or
Territory in this jurisdiction, being a contravention that:
(i) concerns the management or affairs of a body corporate or managed
investment scheme; or
(ii) involves fraud or dishonesty and relates to a body corporate or
managed investment scheme or to securities or futures contracts.
(2) Where ASIC has reason to suspect that unacceptable circumstances
within the meaning of Subdivision B of Division 2 of Part 6.12 of the
Corporations Act have, or may have, occurred, ASIC may make such investigation
as it thinks expedient:
(a) for the purposes of determining whether or not to make an application
under section 657C of that Act; or
(b) otherwise for the due administration of the corporations legislation
(other than the excluded provisions).
(6) If ASIC has reason to suspect that a contravention of a provision of
Division 2 of Part 2 may have been committed, ASIC may make such
investigation as it thinks appropriate.
(1) Where, in the Minister’s opinion, it is in the public interest
in respect of this jurisdiction for a particular matter to which
subsection (2) applies to be investigated, he or she may by writing direct
ASIC to investigate that matter.
(2) This subsection applies to a matter relating to any of the
following:
(a) an alleged or suspected contravention of the corporations legislation
(other than the excluded provisions);
(b) an alleged or suspected contravention of a law of the Commonwealth, or
of a State or Territory in this jurisdiction, being a contravention
that:
(i) concerns the management or affairs of a body corporate; or
(ii) involves fraud or dishonesty and relates to a body corporate,
securities or futures contracts;
(c) the affairs, or particular affairs, of a corporation;
(d) dealing in securities;
(e) dealing in futures contracts;
(f) the establishment or conducting of a stock market or futures
market;
(g) the provision of clearing house facilities for a futures
market;
(j) the giving of advice, analyses or reports about securities or futures
contracts.
(3) ASIC must comply with a direction under subsection (1).
(4) A direction under subsection (1) does not prevent ASIC from
delegating a function or power.
If a report has been lodged under section 422 or 533 of the
Corporations Act, ASIC may investigate a matter to which the report relates for
the purpose of determining whether or not a person ought to be prosecuted for an
offence against the corporations legislation (other than the excluded
provisions).
(1) Where, in the course of an investigation under this Division, ASIC
forms the opinion that:
(a) a serious contravention of a law of the Commonwealth, or of a State or
Territory in this jurisdiction, has been committed; or
(b) to prepare an interim report about the investigation would enable or
assist the protection, preservation or prompt recovery of property; or
(c) there is an urgent need for the corporations legislation (other than
the excluded provisions) to be amended;
it must prepare an interim report that relates to the investigation and
sets out:
(d) if paragraph (a) applies—its findings about the
contravention, and the evidence and other material on which those findings are
based; or
(e) if paragraph (b) applies—such matters as, in its opinion,
will so enable or assist; or
(f) if paragraph (c) applies—its opinion about amendment of
that legislation, and its reasons for that opinion;
and such other matters relating to, or arising out of, the investigation as
it thinks fit.
(2) ASIC may prepare an interim report about an investigation under this
Division and must do so if the Minister so directs.
(3) A report under subsection (2) must set out such matters relating
to, or arising out of, the investigation as ASIC thinks fit or the Minister
directs.
(1) At the end of an investigation under section 13 or 15, ASIC may
prepare a report about the investigation and must do so if the Minister so
directs.
(2) At the end of an investigation under section 14, ASIC must
prepare a report about the investigation.
(3) A report under this section must set out:
(a) ASIC’s findings about the matters investigated; and
(b) the evidence and other material on which those findings are based;
and
(c) such other matters relating to, or arising out of, the investigation
as ASIC thinks fit or the Minister directs.
(1) As soon as practicable after preparing a report under this Division,
ASIC must give a copy of the report to the Minister.
(2) Where a report, or part of a report, under this Division relates to a
serious contravention of a law of the Commonwealth, or of a State or Territory
in this jurisdiction, ASIC may give a copy of the whole or a part of the report
to:
(a) the Australian Federal Police; or
(b) the National Crime Authority; or
(c) the Director of Public Prosecutions; or
(d) a prescribed agency.
(3) Where a report, or part of a report, under this Division relates to a
person’s affairs to a material extent, ASIC may, at the person’s
request or of its own motion, give to the person a copy of the report or of part
of the report.
(4) The Minister may cause the whole or a part of a report under this
Division to be printed and published.
(1) This section applies where ASIC, on reasonable grounds, suspects or
believes that a person can give information relevant to a matter that it is
investigating, or is to investigate, under Division 1.
(2) ASIC may, by written notice in the prescribed form given to the
person, require the person:
(a) to give to ASIC all reasonable assistance in connection with the
investigation; and
(b) to appear before a specified member or staff member for examination on
oath and to answer questions.
(3) A notice given under subsection (2) must:
(a) state the general nature of the matter referred to in
subsection (1); and
(b) set out the effect of subsection 23(1) and section 68.
The remaining provisions of this Division apply where, pursuant to a
requirement made under section 19 for the purposes of an investigation
under Division 1, a person (in this Division called the
examinee) appears before another person (in this Division called
the inspector) for examination.
(1) The inspector may examine the examinee on oath or affirmation and may,
for that purpose:
(a) require the examinee to either take an oath or make an affirmation;
and
(b) administer an oath or affirmation to the examinee.
(2) The oath or affirmation to be taken or made by the examinee for the
purposes of the examination is an oath or affirmation that the statements that
the examinee will make will be true.
(3) The inspector may require the examinee to answer a question that is
put to the examinee at the examination and is relevant to a matter that ASIC is
investigating, or is to investigate, under Division 1.
(1) The examination must take place in private and the inspector may give
directions about who may be present during it, or during a part of it.
(2) A person must not be present at the examination unless he or
she:
(a) is the inspector, the examinee or a member; or
(b) is a staff member approved by ASIC; or
(c) is entitled to be present by virtue of:
(i) a direction under subsection (1); or
(ii) subsection 23(1).
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(1) The examinee’s lawyer may be present at the examination and may,
at such times during it as the inspector determines:
(a) address the inspector; and
(b) examine the examinee;
about matters about which the inspector has examined the
examinee.
(2) If, in the inspector’s opinion, a person is trying to obstruct
the examination by exercising rights under subsection (1), the inspector
may require the person to stop addressing the inspector, or examining the
examinee, as the case requires.
(1) The inspector may, and must if the examinee so requests, cause a
record to be made of statements made at the examination.
(2) If a record made under subsection (1) is in writing or is reduced
to writing:
(a) the inspector may require the examinee to read it, or to have it read
to him or her, and may require him or her to sign it; and
(b) the inspector must, if requested in writing by the examinee to give to
the examinee a copy of the written record, comply with the request without
charge but subject to such conditions (if any) as the inspector
imposes.
(1) ASIC may give a copy of a written record of the examination, or such a
copy together with a copy of any related book, to a person’s lawyer if the
lawyer satisfies ASIC that the person is carrying on, or is contemplating in
good faith, a proceeding in respect of a matter to which the examination
related.
(2) If ASIC gives a copy to a person under subsection (1), the
person, or any other person who has possession, custody or control of the copy
or a copy of it, must not, except in connection with preparing, beginning or
carrying on, or in the course of, a proceeding:
(a) use the copy or a copy of it; or
(b) publish, or communicate to a person, the copy, a copy of it, or any
part of the copy’s contents.
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(3) ASIC may, subject to such conditions (if any) as it imposes, give to a
person a copy of a written record of the examination, or such a copy together
with a copy of any related book.
If a copy is given to a person under subsection 24(2) or 25(3) subject to
conditions, the person, and any other person who has possession, custody or
control of the copy or a copy of it, must comply with the conditions.
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(1) If a report about the investigation referred to in section 20 is
prepared under section 17, each record (if any) of the examination must
accompany the report.
(2) If:
(a) in ASIC’s opinion, a statement made at an examination is
relevant to any other investigation under Division 1; and
(b) a record of the statement was made under section 24;
and
(c) a report about the other investigation is prepared under
section 17;
a copy of the record must accompany the report.
A power conferred by this Division (other than sections 29, 35, 36
and 39A) may only be exercised:
(a) for the purposes of the performance or exercise of any of ASIC’s
functions and powers under the corporations legislation; or
(b) for the purposes of ensuring compliance with the corporations
legislation; or
(c) in relation to:
(i) an alleged or suspected contravention of the corporations legislation;
or
(ii) an alleged or suspected contravention of a law of the Commonwealth,
or of a State or Territory in this jurisdiction, being a contravention that
concerns the management or affairs of a body corporate, or involves fraud or
dishonesty and relates to a body corporate, securities or futures contracts;
or
(d) for the purposes of an investigation under Division 1.
(1) A book that the corporations legislation (other than the excluded
provisions) requires a person to keep must be open for inspection (without
charge) by a person authorised in writing by ASIC.
(2) A person authorised under this section may require a person in whose
possession the book is to make the book available for inspection by the
first-mentioned person.
(3) An authorisation under this section may be of general application or
may be limited by reference to the books to be inspected.
(1) ASIC may give to:
(a) a body corporate that is not an exempt public authority; or
(b) an eligible person in relation to such a body corporate;
a written notice requiring the production to a specified member or staff
member, at a specified place and time, of specified books relating to affairs of
the body.
(2) ASIC may give to:
(a) the responsible entity of a registered scheme; or
(b) an eligible person in relation to the responsible entity;
a written notice requiring the production to a specified member or staff
member, at a specified place and time, of specified books relating to the
operation of the scheme.
(1) ASIC may give to:
(a) a securities exchange; or
(b) a member of the board of a securities exchange; or
(c) a person who is or has been (either alone or together with any other
person or persons) a dealer, an investment adviser or a securities
representative of a person; or
(d) a nominee controlled by a person of a kind referred to in
paragraph (c) or jointly controlled by 2 or more persons at least one of
whom is such a person; or
(e) an eligible person in relation to a person of a kind referred to in
paragraph (a), (b), (c) or (d); or
(f) any other person who, in ASIC’s opinion, has been a party to a
dealing in securities;
a written notice requiring the production to a specified member or staff
member, at a specified place and time, of specified books relating to:
(g) the business or affairs of a securities exchange; or
(h) a dealing in securities; or
(j) advice given, or an analysis or report issued or published, about
securities; or
(k) the character or financial position of, or a business carried on by, a
person of a kind referred to in paragraph (c) or (d); or
(m) an audit of, or a report of an auditor about, a dealing in securities
or accounts or records of a dealer or investment adviser.
(2) A reference in subsection (1) to a dealing in securities, or to a
business carried on by a person, includes a reference to a dealing in securities
by a person as a trustee, or to a business carried on by a person as a trustee,
as the case may be.
(1) ASIC may give to:
(a) a futures exchange; or
(b) a clearing house for a futures market; or
(c) a futures association; or
(d) a member of the board of a body corporate that is a futures exchange,
a clearing house for a futures market, or a futures association; or
(e) a person who is or has been (either alone or together with any other
person or persons) a futures broker, a futures adviser or a futures
representative of a person; or
(f) a nominee controlled by a person of a kind referred to in
paragraph (e) or jointly controlled by 2 or more persons at least one of
whom is such a person; or
(g) an eligible person in relation to a person of a kind referred to in a
preceding paragraph; or
(h) any other person who, in ASIC’s opinion, has been a party to a
dealing in a futures contract;
a written notice requiring the production to a specified member or staff
member, at a specified place and time, of specified books relating to:
(j) the business or affairs of a futures exchange, of a clearing house for
a futures market, or of a futures association; or
(k) a dealing in a futures contract; or
(m) advice given, or an analysis or report issued or published, about
futures contracts; or
(n) the character or financial position of, or a business carried on by, a
person referred to in paragraph (e) or (f); or
(p) an audit of, or a report of an auditor about, a dealing in a futures
contract or accounts or records of a futures broker or futures
adviser.
(2) A reference in subsection (1) to a dealing in a futures contract,
or to a business carried on by a person, includes a reference to a dealing in a
futures contract by a person as a trustee, or to a business carried on by a
person as a trustee, as the case may be.
For the purposes of Division 2 of Part 2, ASIC may give
to:
(a) a person who supplies, or has supplied, a financial service;
or
(b) an eligible person in relation to that person;
a written notice requiring the production to a specified member or staff
member, at a specified place and time, of specified books relating to:
(c) the supply of the financial service; or
(d) the financial service.
ASIC may give to a person a written notice requiring the production to a
specified member or staff member, at a specified place and time, of specified
books that are in the first-mentioned person’s possession and relate
to:
(a) affairs of a body corporate; or
(ab) affairs of a registered scheme; or
(b) a matter referred to in any of paragraphs 31(1)(g) to (m), inclusive,
and 32(1)(j) to (p), inclusive; or
(c) a matter referred to in paragraph 32A(c) or (d).
(1) ASIC may by writing authorise a member or staff member to make a
requirement of a kind that this Division empowers ASIC to make.
(2) An authorisation under this section may be of general application or
may be limited by reference to either or both of the following:
(a) the persons of whom requirements may be made;
(b) the books production of which may be required.
(3) Where an authorisation of a person is in force under this section, the
person may make a requirement in accordance with the authorisation as if, in
sections 30, 31, 32, 32A and 33:
(a) a reference to ASIC were a reference to the person; and
(b) a reference to specified books were a reference to books that the
person specifies, whether in the requirement or not and whether orally or in
writing, to the person of whom the requirement is made; and
(c) a reference to production to a specified person were a reference to
production to the first-mentioned person.
(1) Where a member or staff member has reasonable grounds to suspect that
there are, or may be within the next 3 days, on particular premises in
Australia, books:
(a) whose production has been required under this Division; and
(b) that have not been produced in compliance with that
requirement;
he or she may:
(c) lay before a magistrate an information on oath setting out those
grounds; and
(d) apply for the issue of a warrant to search the premises for those
books.
(2) On an application under this section, the magistrate may require
further information to be given, either orally or by affidavit, in connection
with the application.
(1) This section applies where, on an application under section 35,
the magistrate is satisfied that there are reasonable grounds to suspect that
there are, or may be within the next 3 days, on particular premises, particular
books:
(a) whose production has been required under this Division; and
(b) that have not been produced in compliance with that
requirement.
(2) The magistrate may issue a warrant authorising a member of the
Australian Federal Police, whether or not named in the warrant, together with
any person so named, with such assistance, and by such force, as is necessary
and reasonable:
(a) to enter on or into the premises; and
(b) to search the premises; and
(c) to break open and search anything, whether a fixture or not, in or on
the premises; and
(d) to take possession of, or secure against interference, books that
appear to be any or all of those books.
(3) If the magistrate issues such a warrant, he or she must set out on the
information laid before him or her under subsection 35(2) for the purposes of
the application:
(a) which of the grounds set out in the information; and
(b) particulars of any other grounds;
he or she has relied on to justify the issue of the warrant.
(4) A warrant under this section must:
(a) specify the premises and books referred to in subsection (1);
and
(b) state whether entry is authorised to be made at any time of the day or
night or only during specified hours; and
(c) state that the warrant ceases to have effect on a specified day that
is not more than 7 days after the day of issue of the warrant.
(1) This section applies where:
(a) books are produced to a person under a requirement made under this
Division; or
(b) under a warrant issued under section 36, a person:
(i) takes possession of books; or
(ii) secures books against interference; or
(c) by virtue of a previous application of subsection (8) of this
section, books are delivered into a person’s possession.
(2) If paragraph (1)(a) applies, the person may take possession of
any of the books.
(3) The person may inspect, and may make copies of, or take extracts from,
any of the books.
(4) The person may use, or permit the use of, any of the books for the
purposes of a proceeding.
(5) The person may retain possession of any of the books for so long as is
necessary:
(a) for the purposes of exercising a power conferred by this section
(other than this subsection and subsection (7)); or
(b) for any of the purposes referred to in paragraphs 28(a), (b) and (d);
or
(c) for a decision to be made about whether or not a proceeding to which
the books concerned would be relevant should be begun; or
(d) for such a proceeding to be begun and carried on.
(6) No-one is entitled, as against the person, to claim a lien on any of
the books, but such a lien is not otherwise prejudiced.
(7) While the books are in the person’s possession, the
person:
(a) must permit another person to inspect at all reasonable times such (if
any) of the books as the other person would be entitled to inspect if they were
not in the first-mentioned person’s possession; and
(b) may permit another person to inspect any of the books.
(8) Unless subparagraph (1)(b)(ii) applies, the person may deliver
any of the books into the possession of ASIC or of a person authorised by it to
receive them.
(9) If paragraph (1)(a) or (b) applies, the person, or a person into
whose possession the person delivers any of the books under subsection (8),
may require:
(a) if paragraph (1)(a) applies—a person who so produced any of
the books; or
(b) in any case—a person who was a party to the compilation of any
of the books;
to explain to the best of his or her knowledge and belief any matter about
the compilation of any of the books or to which any of the books
relate.
(10) In this section:
proceeding includes:
(a) in relation to a contravention of Division 2 of
Part 2—a proceeding under a law of the Commonwealth, a State or a
Territory; and
(b) otherwise—a proceeding under a law of the Commonwealth, or of a
State or Territory in this jurisdiction.
Where a person fails to produce particular books in compliance with a
requirement made by another person under this Division, the other person may
require the first-mentioned person to state, to the best of his or her knowledge
and belief:
(a) where the books may be found; and
(b) who last had possession, custody or control of the books and where
that person may be found.
A person who has power under this Division to require another person to
produce books relating to affairs of a body corporate may, whether or not that
power is exercised, require the other person, so far as the other person can do
so:
(a) to identify property of the body; and
(b) to explain how the body has kept account of that property.
(1) ASIC may, subject to such conditions (if any) as it imposes, give to a
person a copy of any book in its possession that relates to a registered
scheme.
(2) If a copy of a book is given to a person under subsection (1)
subject to conditions, the person, and any other person who has possession,
custody or control of the copy or a copy of it, must comply with the
conditions.
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
A power conferred by section 41 or 44 may only be
exercised:
(a) for the purposes of the performance or exercise of any of ASIC’s
functions and powers under the corporations legislation (other than the excluded
provisions); or
(b) for the purposes of ensuring compliance with the corporations
legislation (other than the excluded provisions); or
(c) in relation to:
(i) an alleged or suspected contravention of the corporations legislation
(other than the excluded provisions); or
(ii) an alleged or suspected contravention of a law of the Commonwealth,
or of a State or Territory in this jurisdiction, being a contravention that
concerns the management or affairs of a body corporate, or involves fraud or
dishonesty and relates to a body corporate, securities or futures contracts;
or
(d) for the purposes of an investigation under Division 1.
(1) ASIC may require a dealer to disclose to it, in relation to an
acquisition or disposal of securities:
(a) the name of the person from or through whom, or on whose behalf, the
securities were acquired; or
(b) the name of the person to or through whom, or on whose behalf, the
securities were disposed of;
as the case may be, and the nature of the instructions given to the dealer
in relation to the acquisition or disposal.
(2) ASIC may require a person to disclose to it, in relation to an
acquisition or disposal of securities by the person, whether or not the person
acquired or disposed of the securities as trustee for, or for or on behalf of,
another person, and, if so:
(a) the name of the other person; and
(b) the nature of any instructions given to the first-mentioned person in
relation to the acquisition or disposal.
(3) ASIC may require a person who conducts a stock market to disclose to
ASIC, in relation to an acquisition or disposal of securities on that stock
market, the names of the persons who acted in the acquisition or
disposal.
(1) This section applies where ASIC considers that:
(a) it may be necessary to exercise, in relation to securities of a body
corporate, a power under section 775 of the Corporations Act; or
(b) a contravention of section 845, or Division 2 of
Part 7.11, of the Corporations Act may have been committed in relation to
securities of a body corporate; or
(c) a contravention of Chapter 6C of the Corporations Act may have
been committed in relation to shares in a body corporate; or
(d) a contravention of a law of the Commonwealth, or of a State or
Territory in this jurisdiction, may have been committed, being a contravention
that involves fraud or dishonesty and relates to securities of a body corporate;
or
(e) unacceptable circumstances within the meaning of Part 6.9 of the
Corporations Act have, or may have, occurred:
(i) in relation to an acquisition of shares in a body corporate;
or
(ii) as a result of conduct engaged in by a person in relation to shares
in, or the affairs of, a body corporate; or
(f) a person has, or may have, contravened section 657F of the
Corporations Act.
(2) ASIC may require a director, secretary or executive officer of the
body to disclose to ASIC information of which he or she is aware and
that:
(a) may have affected a dealing that has taken place; or
(b) may affect a dealing that may take place;
in securities of the body.
(3) If ASIC believes on reasonable grounds that a person can give,
information about particular matters, being any or all of the
following:
(a) a dealing in securities of the body;
(b) advice, or an analysis or report, that a dealer, an investment
adviser, or a securities representative of a person, has given, issued or
published about such securities;
(c) the financial position of a business carried on by a person
who:
(i) is or has been (either alone or together with any other person or
persons) a dealer or investment adviser; and
(ii) has dealt in, has given advice about, or has issued or published an
analysis or report about, such securities;
(d) the financial position of a business carried on by a nominee
controlled by a person of a kind referred to in paragraph (c) or jointly
controlled by 2 or more persons at least one of whom is such a person;
(e) an audit of, or a report of an auditor about, accounts or records of a
dealer or investment adviser, being accounts or records relating to dealings in
such securities;
ASIC may require the person to disclose to it the information that the
person has about those particular matters.
(4) ASIC must not exercise a power conferred by subsection (2) or (3)
except:
(a) if paragraph (1)(a) applies—for the purpose of determining
whether or not to exercise a power as mentioned in that paragraph; or
(b) if paragraph (1)(b), (c) or (d) applies—for the purpose of
investigating the possible contravention; or
(c) if paragraph (1)(e) or (f) applies—for the purpose of
determining whether or not to make an application under section 657C or
657G of the Corporations Act.
(1) ASIC may require a futures broker to disclose to it, in relation to a
dealing by the futures broker in a futures contract, whether or not the dealing
was effected on another person’s behalf, and, if so:
(a) the name of the other person; and
(b) the nature of the instructions given to the futures broker in relation
to the dealing.
(2) ASIC may require a person to disclose to it, in relation to a dealing
in a futures contract effected on the person’s instructions, whether or
not the person gave the instructions as trustee for, or for or on behalf of,
another person, and, if so:
(a) the name of the other person; and
(b) the nature of any instructions given to the first-mentioned person in
relation to the dealing.
(3) ASIC may require a futures exchange to disclose to it, in relation to
a dealing in a futures contract on a futures market of that futures exchange,
the names of the members of the futures exchange who were concerned in any act
or omission in relation to the dealing.
(4) ASIC may require a clearing house for a futures market to disclose to
ASIC, in relation to a dealing in a futures contract on that futures market, the
names of the members of the clearing house who were concerned in any act or
omission in relation to the dealing.
(1) ASIC must not exercise a power conferred by this section
except:
(a) where it considers that it may be necessary to give a direction under
section 1138 of the Corporations Act—for the purpose of determining
whether or not to give such a direction; or
(b) where it considers that there may have been committed:
(i) a contravention of Part 8.7 (other than sections 1258 and
1267) of the Corporations Act; or
(ii) a contravention of a law of the Commonwealth, or of a State or
Territory in this jurisdiction, being a contravention that involves fraud or
dishonesty and relates to futures contracts;
for the purpose of investigating the possible contravention.
(2) Where ASIC believes on reasonable grounds that a person can give
information about particular matters, being any or all of the
following:
(a) a dealing in futures contracts;
(b) advice, or an analysis or report, that a futures broker, a futures
adviser, or a futures representative of a person, has given, issued or published
about futures contracts;
(c) the financial position of a business carried on by a person who is or
has been (either alone or together with any other person or persons) a futures
broker or futures adviser;
(d) the financial position of a business carried on by a nominee
controlled by a person of a kind referred to in paragraph (c) or jointly
controlled by 2 or more persons at least one of whom is such a person;
(e) an audit of, or a report of an auditor about, accounts or records of a
futures broker or futures adviser, being accounts or records relating to
dealings in futures contracts;
ASIC may require the person to disclose to it the information that the
person has about those particular matters.
(1) A disclosure to ASIC pursuant to a requirement made under this
Division must take place in private and ASIC may give directions about who may
be present during it, or during a part of it.
(2) A person must not be present during a disclosure unless he or
she:
(a) is a member; or
(b) is a staff member approved by ASIC; or
(c) is entitled to be present by virtue of:
(i) a direction under subsection (1); or
(ii) subsection 48(1).
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(1) The lawyer of a person making a disclosure to ASIC pursuant to a
requirement made under this Division may be present during the disclosure and
may, at such times during it as the representative of ASIC presiding at the
meeting during which the disclosure is made determines, address the
representatives of ASIC about the disclosure.
(2) If, in the presiding representative’s opinion, a person is
trying to obstruct the disclosure by exercising rights under
subsection (1), the presiding representative may require the person to stop
addressing the representatives of ASIC.
(1) This section applies where:
(a) as a result of an investigation; or
(b) from a record of an examination;
conducted under this Part, it appears to ASIC that a person:
(c) may have committed an offence against the corporations legislation;
and
(d) ought to be prosecuted for the offence.
(2) ASIC may cause a prosecution of the person for the offence to be begun
and carried on.
(3) If:
(a) ASIC, on reasonable grounds, suspects or believes that a person can
give information relevant to a prosecution for the offence; or
(b) the offence relates to matters being, or connected with, affairs of a
body corporate, or to matters including such matters;
ASIC may, whether before or after a prosecution for the offence is begun,
by writing given to the person, or to an eligible person in relation to the
body, as the case may be, require the person or eligible person to give all
reasonable assistance in connection with such a prosecution.
(4) Subsection (3) does not apply in relation to:
(a) the person referred to in subsection (1); or
(b) a person who is or has been that person’s lawyer.
(5) Nothing in this section affects the operation of the Director of
Public Prosecutions Act 1983.
Where, as a result of an investigation or from a record of an examination
(being an investigation or examination conducted under this Part), it appears to
ASIC to be in the public interest for a person to begin and carry on a
proceeding for:
(a) the recovery of damages for fraud, negligence, default, breach of
duty, or other misconduct, committed in connection with a matter to which the
investigation or examination related; or
(b) recovery of property of the person;
ASIC:
(c) if the person is a company—may cause; or
(d) otherwise—may, with the person’s written consent,
cause;
such a proceeding to be begun and carried on in the person’s
name.
ASIC may hold hearings for the purposes of the performance or exercise of
any of its functions and powers under the corporations legislation (other than
the excluded provisions), other than a function or power conferred on it by
Division 1 of this Part or by section 657C or 657G of the Corporations
Act.
(1) Subject to sections 53 and 54, ASIC may direct that a hearing
take place in public or take place in private.
(2) In exercising its discretion under subsection (1), ASIC must have
regard to:
(a) whether evidence that may be given, or a matter that may arise, during
the hearing is of a confidential nature or relates to the commission, or to the
alleged or suspected commission, of an offence; and
(b) any unfair prejudice to a person’s reputation that would be
likely to be caused if the hearing took place in public; and
(c) whether it is in the public interest that the hearing take place in
public; and
(d) any other relevant matter.
(1) Subject to section 54, where:
(a) the corporations legislation (other than the excluded provisions)
requires ASIC to give a person an opportunity to appear at a hearing;
and
(b) the person requests that the hearing or part of the hearing take place
in public;
the hearing or part must take place in public.
(2) Despite subsection (1), where ASIC is satisfied, having regard to
the matters referred to in subsection 52(2), that it is desirable that a hearing
or part of a hearing take place in private, it may direct that the hearing or
part take place in private.
Where the corporations legislation (other than the excluded provisions
and this section) requires a hearing to take place in private, the hearing must
take place in private.
(1) Where, at a hearing that is taking place in public or in private, ASIC
is satisfied that it is desirable to do so, ASIC may give directions preventing
or restricting the publication of evidence given before, or of matters contained
in documents lodged with, ASIC.
(2) In determining whether or not to give a direction under
subsection (1), ASIC must have regard to:
(a) whether evidence that has been or may be given, or a matter that has
arisen or may arise, during the hearing is of a confidential nature or relates
to the commission, or to the alleged or suspected commission, of an offence
against an Australian law; and
(b) any unfair prejudice to a person’s reputation that would be
likely to be caused unless ASIC exercises its powers under this section;
and
(c) whether it is in the public interest that ASIC exercises its powers
under this section; and
(d) any other relevant matter.
(1) ASIC may give directions about who may be present during a hearing
that is to take place in private.
(2) A direction under subsection (1) does not prevent:
(a) a person whom the corporations legislation (other than the excluded
provisions) requires to be given the opportunity to appear at a hearing;
or
(b) a person representing under section 59:
(i) a person of a kind referred to in paragraph (a) of this
subsection; or
(ii) a person who, by virtue of such a direction, is entitled to be
present at a hearing;
from being present during the hearing.
(3) Where ASIC directs that a hearing take place in private, a person must
not be present at the hearing unless he or she:
(a) is a member; or
(b) is a staff member approved by ASIC; or
(c) is entitled to be present by virtue of:
(i) a direction under subsection (1); or
(ii) subsection (2).
Penalty: 10 penalty units or imprisonment for 3 months.
(1) This section applies where the corporations legislation (other than
the excluded provisions) requires ASIC to give a person an opportunity to appear
at a hearing and to make submissions and give evidence to it.
(2) ASIC must appoint a place and time for the hearing and cause written
notice of that place and time to be given to the person.
(3) If the person does not wish to appear at the hearing, the person may,
before the day of the hearing, lodge with ASIC any written submissions that the
person wishes ASIC to take into account in relation to the matter
concerned.
(1) A member may, by written summons in the prescribed form given to a
person:
(a) require the person to appear before ASIC at a hearing to give
evidence, to produce specified documents, or to do both; and
(b) require the person to attend from day to day unless excused, or
released from further attendance, by a member.
(2) At a hearing, ASIC may take evidence on oath or affirmation, and for
that purpose a member may:
(a) require a witness at the hearing to either take an oath or make an
affirmation; and
(b) administer an oath or affirmation to a witness at the
hearing.
(3) The oath or affirmation to be taken or made by a person for the
purposes of this section is an oath or affirmation that the evidence the person
will give will be true.
(4) The member presiding at a hearing:
(a) may require a witness at the hearing to answer a question put to the
witness; and
(b) may require a person appearing at the hearing pursuant to a summons
issued under this section to produce a document specified in the
summons.
(5) ASIC may permit a witness at a hearing to give evidence by tendering,
and if ASIC so requires, verifying by oath, a written statement.
(1) A hearing must be conducted with as little formality and technicality,
and with as much expedition, as the requirements of the corporations legislation
(other than the excluded provisions) and a proper consideration of the matters
before ASIC permit.
(2) At a hearing, ASIC:
(a) is not bound by the rules of evidence; and
(b) may, on such conditions as it thinks fit, permit a person to
intervene; and
(c) must observe the rules of natural justice.
(3) Subject to subsection (4), Division 4 of Part 4 (other
than section 104) applies, so far as practicable, in relation to a hearing
as if the hearing were a meeting of ASIC.
(4) At a hearing before a Division of ASIC, 2 members of the Division form
a quorum.
(5) At a hearing, a natural person may appear in person or be represented
by an employee of the person approved by ASIC.
(6) A body corporate may be represented at a hearing by an officer of the
body corporate approved by ASIC.
(7) An unincorporated association, or a person in the person’s
capacity as a member of an unincorporated association, may be represented at a
hearing by a member or officer of the association approved by ASIC.
(8) Any person may be represented at a hearing by a barrister or solicitor
of the Supreme Court of a State or Territory or of the High Court.
ASIC must take into account:
(a) evidence given, or a submission made, to it at a hearing; or
(b) a submission lodged with it under section 57;
in making a decision on a matter to which the evidence or submission
relates.
(1) ASIC may, of its own motion or at a person’s request, refer to
the Court for decision a question of law arising at a hearing.
(3) Where a question has been referred under subsection (1), ASIC
must not, in relation to a matter to which the hearing relates:
(a) give while the reference is pending a decision to which the question
is relevant; or
(b) proceed in a manner, or make a decision, that is inconsistent with the
Court’s opinion on the question.
(4) Where a question is referred under subsection (1):
(a) ASIC must send to the Court all documents that were before ASIC in
connection with the hearing; and
(b) at the end of the proceeding in the Court in relation to the
reference, the Court must cause the documents to be returned to ASIC.
(1) A member has, in the performance or exercise of any of his or her
functions and powers as a member in relation to a hearing, the same protection
and immunity as a Justice of the High Court.
(1A) A delegate of a member has, in the performance or exercise of any
delegated function or power in relation to a hearing, the same protection and
immunity as a Justice of the High Court.
(2) A barrister, solicitor or other person appearing on a person’s
behalf at a hearing has the same protection and immunity as a barrister has in
appearing for a party in a proceeding in the High Court.
(3) Subject to this Act, a person who is required by a summons under
section 58 to appear at a hearing, or a witness at a hearing, has the same
protection as a witness in a proceeding in the High Court.
(1) A person must not, without reasonable excuse, fail to comply with a
requirement made under section 19, subsection 21(3), section 30, 31,
32, 32A, 33 or 34, subsection 37(9) or section 38 or 39.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(2) A person must not, without reasonable excuse, fail to comply with a
requirement made under section 41, 42, 43, 44, 45 or 46.
Penalty: 50 penalty units or imprisonment for 12 months, or both.
(3) A person must not, without reasonable excuse, fail to comply with a
requirement made under subsection 21(1) or 29(2), paragraph 24(2)(a) or
subsection 49(3) or 58(1), (2) or (4).
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(4) A person must comply with a requirement made under subsection 23(2) or
48(2).
Penalty: 5 penalty units.
(1) A person must not:
(a) in purported compliance with a requirement made under this Part;
or
(b) in the course of an examination of the person;
give information, or make a statement, that is false or misleading in a
material particular.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(2) A person must not, at a hearing, give evidence that is false or
misleading in a material particular.
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(3) It is a defence to a prosecution for a contravention of
subsection (1) or (2) if it is proved that the defendant, when giving the
information or evidence or making the statement, believed on reasonable grounds
that it was true and not misleading.
(1) A person must not, without reasonable excuse:
(a) obstruct or hinder a person in the exercise of a power under this
Part; or
(b) obstruct or hinder a person who is executing a warrant issued under
section 36.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(2) The occupier, or person in charge, of premises that a person enters
under a warrant issued under section 36 must provide to that person all
reasonable facilities and assistance for the effective exercise of his or her
powers under the warrant.
Penalty: 25 penalty units or imprisonment for 6 months, or both.
(1) A person must not:
(a) obstruct or hinder ASIC or a member in the performance or exercise of
any of ASIC’s functions and powers; or
(b) disrupt a hearing.
Penalty: 50 penalty units or imprisonment for 1 year, or both.
(2) A person must not, without reasonable excuse, contravene a direction
given under subsection 55(1).
Penalty: 50 penalty units or imprisonment for 1 year, or both.
(3) An offence constituted by a contravention of subsection (1) or
(2) is punishable on summary conviction.
(1) Where ASIC is investigating, or is about to investigate, a matter, a
person must not:
(a) in any case—conceal, destroy, mutilate or alter a book relating
to that matter; or
(b) if a book relating to that matter is in a particular State or
Territory—take or send the book out of that State or Territory or out of
Australia.
Penalty: 200 penalty units or imprisonment for 5 years, or both.
(2) It is a defence to a prosecution for a contravention of
subsection (1) if it is proved that the defendant intended neither to
defeat the purposes of the corporations legislation, nor to delay or obstruct an
investigation, or a proposed investigation, by ASIC.
(1) For the purposes of this Part, of Division 3 of Part 10, and
of Division 2 of Part 11, it is not a reasonable excuse for a person
to refuse or fail:
(a) to give information; or
(b) to sign a record; or
(c) to produce a book;
in accordance with a requirement made of the person, that the information,
signing the record or production of the book, as the case may be, might tend to
incriminate the person or make the person liable to a penalty.
(2) Subsection (3) applies where:
(a) before:
(i) making an oral statement giving information; or
(ii) signing a record;
pursuant to a requirement made under this Part, Division 3 of
Part 10 or Division 2 of Part 11, a person (other than a body
corporate) claims that the statement, or signing the record, as the case may be,
might tend to incriminate the person or make the person liable to a penalty;
and
(b) the statement, or signing the record, as the case may be, might in
fact tend to incriminate the person or make the person so liable.
(3) The statement, or the fact that the person has signed the record, as
the case may be, is not admissible in evidence against the person in:
(a) a criminal proceeding; or
(b) a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
(c) in the case of the making of a statement—the falsity of the
statement; or
(d) in the case of the signing of a record—the falsity of any
statement contained in the record.
(1) This section applies where:
(a) under this Part, Division 3 of Part 10, or Division 2
of Part 11, a person requires a lawyer:
(i) to give information; or
(ii) to produce a book; and
(b) giving the information would involve disclosing, or the book contains,
as the case may be, a privileged communication made by, on behalf of or to the
lawyer in his or her capacity as a lawyer.
(2) The lawyer is entitled to refuse to comply with the requirement
unless:
(a) if the person to whom, or by or on behalf of whom, the communication
was made is a body corporate that is under official management or being wound
up—the official manager or liquidator of the body; or
(b) otherwise—the person to whom, or by or on behalf of whom, the
communication was made;
consents to the lawyer complying with the requirement.
(3) If the lawyer so refuses, he or she must, as soon as practicable, give
to the person who made the requirement a written notice setting out:
(a) if the lawyer knows the name and address of the person to whom, or by
or on behalf of whom, the communication was made—that name and address;
and
(b) if subparagraph (1)(a)(i) applies and the communication was made
in writing—sufficient particulars to identify the document containing the
communication; and
(c) if subparagraph (1)(a)(ii) applies—sufficient particulars
to identify the book, or the part of the book, containing the
communication.
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(1) This section applies where ASIC is satisfied that a person has,
without reasonable excuse, failed to comply with a requirement made under this
Part (other than Division 8).
(2) ASIC may by writing certify the failure to the Court.
(3) If ASIC does so, the Court may inquire into the case and may order the
person to comply with the requirement as specified in the order.
This Division applies where, in ASIC’s opinion, information
about:
(a) affairs of a body corporate; or
(b) securities; or
(c) futures contracts;
needs to be found out for the purposes of the exercise of any of
ASIC’s powers under this Part but cannot be found out because a person has
failed to comply with a requirement made under this Part.
If paragraph 71(a) applies, ASIC may make one or more of the
following:
(a) an order restraining a specified person from disposing of any interest
in specified securities of the body corporate referred to in that
paragraph;
(b) an order restraining a specified person from acquiring any interest in
specified securities of the body;
(c) an order restraining the exercise of voting or other rights attached
to specified securities of the body;
(d) an order directing the holder of securities in respect of which an
order under this section is in force to give written notice of that order to any
person whom the holder knows to be entitled to exercise a right to vote attached
to the securities;
(e) an order directing the body not to pay, except in the course of
winding up, a sum due from the body in respect of specified securities of the
body;
(f) an order directing the body not to register the transfer or
transmission of specified securities of the body;
(g) an order directing the body not to issue to a person who holds shares
in the body shares that the body proposed to issue to the person:
(i) because the person holds shares in the body; or
(ii) pursuant to an offer or invitation made or issued to the person
because the person holds shares in the body.
If paragraph 71(b) applies, ASIC may make one or more of the
following:
(a) an order restraining a specified person from disposing of any interest
in specified securities;
(b) an order restraining a specified person from acquiring any interest in
specified securities;
(c) an order restraining the exercise of voting or other rights attached
to specified securities;
(d) an order directing the holder of securities in respect of which an
order under this section is in force to give written notice of that order to any
person whom the holder knows to be entitled to exercise a right to vote attached
to the securities;
(e) an order directing a body corporate not to pay, except in the course
of winding up, a sum due from the body in respect of specified
securities;
(f) an order directing a body corporate not to register the transfer or
transmission of specified securities;
(g) an order directing a body corporate not to issue to a person who holds
shares in the body shares that the body proposed to issue to the
person:
(i) because the person holds such shares; or
(ii) pursuant to an offer or invitation made or issued to the person
because the person holds such shares.
(1) If paragraph 71(c) applies, ASIC may make one or more of the
following:
(a) an order restraining a specified person from disposing of specified
futures contracts;
(b) an order restraining a specified person from acquiring specified
futures contracts;
(c) an order restraining a specified person from exercising rights under
specified futures contracts;
(d) an order requiring a specified person to dispose of specified futures
contracts, or to dispose of specified futures contracts in a specified
manner.
(2) An order under subsection (1) does not prejudice or affect a
right of a futures exchange, or of a clearing house for a futures
exchange:
(a) to cause a futures contract to be closed out, or to close out a
futures contract, because of a failure to meet a call for a deposit or margin;
or
(b) to enter into a liquidating trade in order so to cause a futures
contract to be closed out, or in order so to close out a futures contract;
or
(c) to cause to be registered in a person’s name, or to register in
a person’s name, a futures contract that was previously registered in
another person’s name.
(3) In this section:
right includes a right enforceable neither at law nor in
equity.
(1) ASIC may make an order varying or revoking an order in force under
this Division.
(2) An order under this Division must be made by notice published in the
Gazette.
(3) Where an order is made under this Division (other than
subsection (1)), ASIC must cause to be given to the person to whom the
order is directed:
(a) a copy of the order; and
(b) a copy of each order varying or revoking it.
(4) Where an order under this Division relates to securities, ASIC must
cause:
(a) a copy of the order; and
(b) a copy of each order varying or revoking it;
to be given to:
(c) in any case—the person who issued or made available, or who will
issue or make available, the securities; or
(d) if the securities are rights or options—the person against whom
the right or option is, or would be enforceable.
(5) A person must comply with an order in force under this
Division.
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
(1) A statement that a person makes at an examination of the person is
admissible in evidence against the person in a proceeding unless:
(a) because of subsection 68(3), the statement is not admissible in
evidence against the person in the proceeding; or
(b) the statement is not relevant to the proceeding and the person objects
to the admission of evidence of the statement; or
(c) the statement is qualified or explained by some other statement made
at the examination, evidence of the other statement is not tendered in the
proceeding and the person objects to the admission of evidence of the
first-mentioned statement; or
(d) the statement discloses matter in respect of which the person could
claim legal professional privilege in the proceeding if this subsection did not
apply in relation to the statement, and the person objects to the admission of
evidence of the statement.
(2) Subsection (1) applies in relation to a proceeding against a
person even if it is heard together with a proceeding against another
person.
(3) Where a written record of an examination of a person is signed by the
person under subsection 24(2) or authenticated in any other prescribed manner,
the record is, in a proceeding, prima facie evidence of the statements it
records, but nothing in this Part limits or affects the admissibility in the
proceeding of other evidence of statements made at the examination.
Where direct evidence by a person (the absent witness) of a
matter would be admissible in a proceeding, a statement that the absent witness
made at an examination of the absent witness and that tends to establish that
matter is admissible in the proceeding as evidence of that matter:
(a) if it appears to the court or tribunal that:
(i) the absent witness is dead or is unfit, because of physical or mental
incapacity, to attend as a witness; or
(ii) the absent witness is outside the State or Territory in which the
proceeding is being heard and it is not reasonably practicable to secure his or
her attendance; or
(iii) all reasonable steps have been taken to find the absent witness but
he or she cannot be found; or
(b) if it does not so appear to the court or tribunal—unless another
party to the proceeding requires the party tendering evidence of the statement
to call the absent witness as a witness in the proceeding and the tendering
party does not so call the absent witness.
(1) This section applies where evidence of a statement made by a person at
an examination of the person is admitted under section 77 in a
proceeding.
(2) In deciding how much weight (if any) to give to the statement as
evidence of a matter, regard is to be had to:
(a) how long after the matters to which it related the statement was made;
and
(b) any reason the person may have had for concealing or misrepresenting a
material matter; and
(c) any other circumstances from which it is reasonable to draw an
inference about how accurate the statement is.
(3) If the person is not called as a witness in the proceeding:
(a) evidence that would, if the person had been so called, have been
admissible in the proceeding for the purpose of destroying or supporting his or
her credibility is so admissible; and
(b) evidence is admissible to show that the statement is inconsistent with
another statement that the person has made at any time.
(4) However, evidence of a matter is not admissible under this section if,
had the person been called as a witness in the proceeding and denied the matter
in cross-examination, evidence of the matter would not have been admissible if
adduced by the cross-examining party.
(1) A party (the adducing party) to a proceeding may, not
less than 14 days before the first day of the hearing of the proceeding, give to
another party to the proceeding written notice that the adducing
party:
(a) will apply to have admitted in evidence in the proceeding specified
statements made at an examination; and
(b) for that purpose, will apply to have evidence of those statements
admitted in the proceeding.
(2) A notice under subsection (1) must set out, or be accompanied by
writing that sets out, the specified statements.
(3) Within 14 days after a notice is given under subsection (1), the
other party may give to the adducing party a written notice:
(a) stating that the other party objects to specified statements being
admitted in evidence in the proceeding; and
(b) specifies, in relation to each of those statements, the grounds of
objection.
(4) The period prescribed by subsection (3) may be extended by the
court or tribunal or by agreement between the parties concerned.
(5) On receiving a notice given under subsection (3), the adducing
party must give to the court or tribunal a copy of:
(a) the notice under subsection (1) and any writing that
subsection (2) required to accompany that notice; and
(b) the notice under subsection (3).
(6) Where subsection (5) is complied with, the court or tribunal may
either:
(a) determine the objections as a preliminary point before the hearing of
the proceeding begins; or
(b) defer determination of the objections until the hearing.
(7) Where a notice has been given in accordance with subsections (1)
and (2), the other party is not entitled to object at the hearing of the
proceeding to a statement specified in the notice being admitted in evidence in
the proceeding, unless:
(a) the other party has, in accordance with subsection (3), objected
to the statement being so admitted; or
(b) the court or tribunal gives the other party leave to object to the
statement being so admitted.
(1) A copy of, or an extract from, a book relating to:
(a) affairs of a body corporate; or
(b) a matter referred to in any of paragraphs 31(1)(g) to (m), inclusive,
and 32(1)(j) to (p), inclusive; or
(c) a matter referred to in paragraph 32A(c) or (d);
is admissible in evidence in a proceeding as if the copy were the original
book, or the extract were the relevant part of the original book, as the case
may be, whether or not the copy or extract was made under
section 37.
(2) A copy of, or an extract from, a book is not admissible in evidence
under subsection (1) unless it is proved that the copy or extract is a true
copy of the book, or of the relevant part of the book, as the case may
be.
(3) For the purposes of subsection (2), a person who has
compared:
(a) a copy of a book with the book; or
(b) an extract from a book with the relevant part of the book;
may give evidence, either orally or by an affidavit or statutory
declaration, that the copy or extract is a true copy of the book or relevant
part, as the case may be.
Subject to section 82, where a copy of a report under
Division 1 purports to be certified by ASIC as a true copy of such a
report, the copy is admissible in a proceeding (other than a criminal
proceeding) as prima facie evidence of:
(a) ASIC’s report of its opinion for the purposes of paragraph
461(1)(h) or subparagraph 583(c)(iii) of the Corporations Act; and
(b) any facts or matters that the report states ASIC to have found to
exist.
(1) This section applies where a party to a proceeding tenders a copy of a
report as evidence against another party.
(2) The copy is not admissible under section 81 in the proceeding as
evidence against the other party unless the court or tribunal is satisfied
that:
(a) a copy of the report has been given to the other party; and
(b) the other party, and the other party’s lawyer, have had a
reasonable opportunity to examine that copy and to take its contents into
account in preparing the other party’s case.
(3) Before or after the copy referred to in subsection (1) is
admitted in evidence, the other party may apply to cross-examine, in relation to
the report, a specified person who, or 2 or more specified persons each of
whom:
(a) was concerned in preparing the report or making a finding about a fact
or matter that the report states ASIC to have found to exist; or
(b) whether or not pursuant to a requirement made under this Part, gave
information, or produced a book, on the basis of which, or on the basis of
matters including which, such a finding was made.
(4) The court or tribunal must grant an application made under
subsection (3) unless it considers that, in all the circumstances, it is
not appropriate to do so.
(5) If:
(a) the court or tribunal grants an application or applications made under
subsection (3); and
(b) a person to whom the application or any of the applications relate, or
2 or more such persons, is or are unavailable, or does not or do not attend, to
be cross-examined in relation to the report; and
(c) the court or tribunal is of the opinion that to admit the copy under
section 81 in the proceeding as evidence against the other party without
the other party having the opportunity so to cross-examine the person or persons
would unfairly prejudice the other party;
the court or tribunal must refuse so to admit the copy, or must treat the
copy as not having been so admitted, as the case requires.
Nothing in this Division renders evidence inadmissible in a proceeding in
circumstances where it would have been admissible in that proceeding if this
Division had not been enacted.
Where a provision of this Part empowers a person to make a requirement of
a body corporate, the provision also empowers the person to make that
requirement of a person who is or has been an officer of the body.
A person (the inspector), other than ASIC, who is about to
make, or has made, a requirement of another person under this Part (other than
Division 6) must, if the other person requests evidence of the
inspector’s authority to make the requirement, produce to the other
person:
(a) a current identity card that was issued to the inspector by ASIC and
incorporates a photograph of the inspector; and
(b) if the requirement will be, or was, made under an authorisation by
ASIC—a document that was issued by ASIC and sets out the effect of so much
of the authorisation as is relevant to making the requirement; and
(c) otherwise—such evidence (if any) of the inspector’s
authority to make the requirement as ASIC determines.
Section 109X of the Corporations Act has effect for the purposes of
this Part as if a reference in subsection (2) of that section to leaving a
document at an address were a reference to leaving it at that address with a
person whom the person leaving the document believes on reasonable
grounds:
(a) to live or work at that address; and
(b) to have attained the age of 16 years.
A provision of this Part that empowers a person to require the production
of books at a place and time specified by the person is taken:
(a) to require the person to specify a place and time that are reasonable
in all the circumstances; and
(b) if it is reasonable in all the circumstances for the person to require
the books to be produced forthwith—to empower the person to require the
books to be produced forthwith.
(1) For the purposes of Part III of the Crimes Act 1914, an
examination or a hearing is a judicial proceeding.
(2) Part 2.2, sections 69, 70, 71 and 147 and Division 2 of
Part 4.6 of the Evidence Act 1995 apply to an examination in the
same way that they apply to a proceeding to which that Act applies under
section 4 of that Act.
(1) A person who, pursuant to a requirement made under section 19,
appears for examination is entitled to the prescribed allowances and expenses
(if any).
(2) A person who, pursuant to a summons issued under section 58,
appears at a hearing is entitled to be paid:
(a) if the summons was issued at another person’s request—by
that other person; or
(b) otherwise—by ASIC;
the prescribed allowances and expenses (if any).
(3) ASIC may pay such amount as it thinks reasonable on account of the
costs and expenses (if any) that a person incurs in complying with a requirement
made under this Part.
Subject to section 91, ASIC must pay the expenses of an
investigation.
(1) Where:
(a) a person is convicted of an offence against a law of the Commonwealth,
or of a State or Territory in this jurisdiction, in a prosecution; or
(b) a judgment is awarded, or a declaration or other order is made,
against a person in a proceeding in a court of this jurisdiction; or
(ba) a person is convicted of an offence against Division 2 of
Part 2 in a prosecution; or
(bb) a judgment is awarded, or a declaration or other order is made,
against a person under Division 2 of Part 2 in a proceeding in a
court;
begun as a result of an investigation under Division 1, ASIC may make
one of the following orders:
(c) an order that the person pay the whole, or a specified part, of the
expenses of the investigation;
(d) an order that the person reimburse ASIC to the extent of a specified
amount of such of the expenses of the investigation as ASIC has paid;
(e) an order that the person pay, or reimburse ASIC in respect of, the
whole, or a specified part, of the cost to ASIC of making the investigation,
including the remuneration of a member or staff member concerned in the
investigation.
(2) An order under this section must be in writing and must specify when
and how the payment or reimbursement is to be made.
(3) A person must comply with an order under this section that is
applicable to the person.
Penalty: 50 penalty units or imprisonment for 1 year, or both.
(4) ASIC may recover in a court of competent jurisdiction as a debt due to
ASIC so much of the amount payable under an order made under this section as is
not paid in accordance with the order.
(5) A report under Division 1 may include recommendations about
the making of orders under this section.
A person is neither liable to a proceeding, nor subject to a liability,
merely because the person has complied, or proposes to comply, with a
requirement made, or purporting to have been made, under this Part.
(1) Except as expressly provided, nothing in this Part limits the
generality of anything else in this Part.
(2) The functions and powers that this Part confers are in addition to,
and do not derogate from, any other function or power conferred by a law of the
Commonwealth, a State or a Territory.
(1) ASIC may accept a written undertaking given by a person in connection
with a matter in relation to which ASIC has a function or power under this
Act.
(2) The person may withdraw or vary the undertaking at any time, but only
with ASIC’s consent.
(3) If ASIC considers that the person who gave the undertaking has
breached any of its terms, ASIC may apply to the Court for an order under
subsection (4).
(4) If the Court is satisfied that the person has breached a term of the
undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) an order directing the person to pay to the Commonwealth an amount up
to the amount of any financial benefit that the person has obtained directly or
indirectly and that is reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the person to
compensate any other person who has suffered loss or damage as a result of the
breach;
(d) any other order that the Court considers appropriate.
(1) ASIC may accept a written undertaking given by the responsible entity
of a registered scheme in connection with a matter:
(a) concerning the registered scheme; and
(b) in relation to which ASIC has a power or function under the
corporations legislation (other than the excluded provisions).
(2) The responsible entity may withdraw or vary the undertaking at any
time, but only with ASIC’s consent.
(3) If ASIC considers that the responsible entity has breached any of the
terms of the undertaking, ASIC may apply to the Court for an order under
subsection (4).
(4) If the Court is satisfied that the responsible entity has breached a
term of the undertaking, the Court may make all or any of the following
orders:
(a) an order directing the responsible entity to comply with that term of
the undertaking;
(b) an order directing the responsible entity to transfer to scheme
property an amount up to the amount of any financial benefit that the
responsible entity has obtained directly or indirectly and that is reasonably
attributable to the breach;
(c) any order that the Court considers appropriate directing the
responsible entity to compensate any person who has suffered loss or damage as a
result of the breach;
(d) any other order that the Court considers appropriate.
(5) ASIC must keep a record of the full text of the undertaking.
(6) ASIC must make available to a person who asks for it a copy of the
text of the undertaking, but ASIC must delete from the copy
information:
(a) that the responsible entity has asked it not to release; and
(b) that ASIC is satisfied:
(i) is commercial in confidence; or
(ii) should not be disclosed because it would be against the public
interest to do so; or
(iii) consists of personal details of an individual.
(7) If ASIC makes available a copy that has information deleted from it,
the copy must include a note stating that information has been
deleted.
Subject to section 12, ASIC may give directions about the
arrangement of ASIC’s business.
(1) For the purpose of performing its functions and exercising its powers
under the corporations legislation, ASIC:
(a) must establish a regional office in each State and Territory in this
jurisdiction; and
(b) may establish a regional office in a State that is not in this
jurisdiction; and
(c) may establish such other offices as it thinks fit.
(2) In deciding on the number and location of its offices, ASIC must seek
to ensure that:
(a) for the purposes of the corporations legislation (other than the
excluded provisions)—it serves adequately the needs of business
communities in the States and Territories in this jurisdiction; and
(b) for the purposes of Division 2 of Part 2—it serves
adequately the needs of business communities throughout Australia.
For each regional office established under subsection 95(1) there is to
be a different Regional Commissioner, employed by ASIC under subsection 120(3),
who must manage the office.
(1) ASIC may direct in writing that a Division of ASIC consisting of at
least 2 specified members is to, either generally or as otherwise provided by
the direction, perform or exercise specified functions or powers of
ASIC.
(2) A direction under this section that is in force and does not specify
the Chairperson as a member of the Division must specify such a member as the
Division’s chairperson.
(1) Where a direction under section 97 is in force, this section has
effect for the purposes of the performance or exercise by the Division, in
accordance with the direction, of functions or powers of ASIC.
(2) ASIC is taken to consist of the Division.
(3) If the Chairperson is not a member of the Division, the member whom
the direction specifies as the Division’s chairperson is taken to be the
Chairperson.
(4) A meeting of the Division is taken to be a meeting of ASIC, but 2
members of the Division form a quorum at a meeting of the Division.
Where a direction under section 97 is in force, ASIC may at any time
revoke the direction or amend it in relation to the Division’s membership
or in any other respect.
(1) This section has effect where, as at the time when a direction is
amended under section 99 so as to change a Division’s membership, the
Division as constituted before the change has, in relation to a particular
matter, begun but not yet completed the performance of functions, or the
exercise of powers, in accordance with the direction as in force before the
amendment.
(2) The Division as constituted after the change may, in relation to that
matter, perform functions, and exercise powers, in accordance with the direction
as in force after the amendment.
A Division of ASIC may perform functions, or exercise powers, of ASIC
even though another such Division is performing such functions, or exercising
such powers, at the same time.
(1) ASIC may, by writing under its common seal, delegate to a person all
or any of its functions and powers.
(2) ASIC must not, without the Minister’s approval, delegate a
function or power to a person other than:
(a) a member; or
(b) a staff member; or
(c) a person who, by virtue of the regulations, is a prescribed person in
relation to the delegation; or
(d) a person appointed by APRA under section 45 of the Australian
Prudential Regulation Authority Act 1998; or
(e) a member of the staff of the Australian Competition and Consumer
Commission referred to in subsection 27(1) of the Trade Practices Act
1974.
(2A) ASIC must not delegate a function or power to an APRA staff member
within the meaning of the Australian Prudential Regulation Authority Act
1998, unless the Chief Executive Officer of APRA has agreed to the
delegation in writing.
(2B) ASIC must not delegate a function or power to:
(a) a person referred to in paragraph (2)(e); or
(b) a person engaged under section 27A of the Trade Practices Act
1974;
unless the Chairperson of the Australian Competition and Consumer
Commission has agreed to the delegation in writing.
(3) In subsections (1) and (2):
person includes a body.
(4) In exercising its power under subsection (1), ASIC must seek to
ensure that:
(a) the persons who make decisions affecting a particular business
community are located as close to that community as practicable; and
(b) for the purposes of the corporations legislation (other than the
excluded provisions)—members of business communities in the States and
Territories in this jurisdiction have prompt and convenient access to
decision-making and to ASIC’s facilities; and
(c) for the purposes of Division 2 of Part 2—members of
business communities throughout Australia have prompt and convenient access to
decision-making and to ASIC’s facilities.
(5) In the performance of a function, or the exercise of a power,
delegated under this section, the delegate is subject to ASIC’s
directions.
(6) Where a function or power conferred on ASIC by or under a law
(including this Act) and delegated under this section is performed or exercised
by the delegate, it is, for the purposes of that law and this Act, taken to have
been performed or exercised by ASIC.
(1) The Chairperson may convene a meeting to be held at a place and time
he or she determines.
(2) The Chairperson must convene such meetings as he or she thinks
necessary for the efficient performance of ASIC’s functions.
(3) If so requested in writing by 2 of the members, the Chairperson must
convene a meeting.
(1) If all the members who are not absent from office so agree, a meeting
may be held by means of a method of communication, or by means of a combination
of methods of communication, approved by ASIC for the purposes of that
meeting.
(2) For the purposes of this Part, a member who participates in a meeting
held as permitted by subsection (1) is present at the meeting even if he or
she is not physically present at the same place as another member participating
in the meeting.
(3) In this section:
meeting includes a part of a meeting.
At a meeting:
(a) if ASIC consists of 3 or 4 members—2 members; or
(b) in any other case—3 members;
form a quorum.
(1) The Chairperson must preside at all meetings at which he or she is
present.
(2) If the Chairperson is not present at a meeting but the Deputy
Chairperson is present, the Deputy Chairperson must preside.
(3) If neither the Chairperson nor the Deputy Chairperson is present at a
meeting, the members present must elect one of their number to
preside.
(1) Questions arising at a meeting must be determined by a majority of the
votes of the members present at the meeting.
(2) The member presiding at a meeting has a deliberative vote but not a
casting vote.
(1) Subject to this Act, a person appointed as a member holds office for
such term of at most 5 years as is specified in the instrument of appointment,
but is eligible for re-appointment.
(2) A person who has attained the age of 65 years must not be appointed as
a full-time member.
(3) A person must not be appointed as a full-time member for a term
extending beyond the day on which he or she will attain the age of 65
years.
(1) Subject to this Act, a member appointed as Chairperson or Deputy
Chairperson holds office as such until:
(a) in any case—the end of his or her current term as a member;
or
(b) in any case—he or she otherwise stops being a member;
or
(c) in the case of a member appointed as Deputy Chairperson—he or
she is appointed as Chairperson;
whichever happens first.
(2) A person is not ineligible to be appointed under section 10
merely because he or she has been so appointed before.
A person may resign as a member, as Chairperson, or as Deputy
Chairperson, by writing signed and delivered to the Governor-General.
(1) The Governor-General may terminate a member’s appointment
because of misbehaviour, or the physical or mental incapacity, of the member or
if the member:
(a) becomes bankrupt, applies to take the benefit of a law for the relief
of bankrupt or insolvent debtors, compounds with his or her creditors or assigns
remuneration or property for their benefit; or
(b) is a full-time member and engages without the Minister’s consent
in paid employment outside the duties of the member’s office; or
(c) is a full-time member and is absent from duty, except on leave of
absence, for 14 consecutive days, or for 28 days in any period of 12 months;
or
(d) is a part-time member and is absent, except on leave granted in
accordance with subsection 113(2), from 3 consecutive meetings of ASIC;
or
(e) without reasonable excuse, contravenes section 123, subsection
124(2), (4) or (6) or section 125; or
(f) contravenes section 128.
(2) The Governor-General may, with the consent of a full-time member who
is:
(a) an eligible employee; or
(b) a member of the superannuation scheme established by deed under the
Superannuation Act 1990;
retire the member from office on the ground of incapacity.
(3) In spite of anything contained in this section, a member
who:
(a) is an eligible employee; and
(b) has not reached his or her maximum retiring age within the meaning of
the Superannuation Act 1976;
is not capable of being retired from office on the ground of invalidity
within the meaning of Part IVA of that Act unless the Commonwealth
Superannuation Board of Trustees No. 2 has given a certificate under
section 54C of that Act.
(4) In spite of anything contained in this section, a member
who:
(a) is a member of the superannuation scheme established by deed under the
Superannuation Act 1990; and
(b) is under 60 years of age;
is not capable of being retired from office on the ground of invalidity
within the meaning of that Act unless the Commonwealth Superannuation Board of
Trustees No. 1 has given a certificate under section 13 of that
Act.
(1) A member must be paid such remuneration as is determined by the
Remuneration Tribunal but, if no determination of that remuneration by the
Tribunal is in operation, a member must be paid such remuneration as the
Minister determines in writing.
(2) A member must be paid such allowances, and, subject to
subsection (3), provided with such other benefits, as the Minister
determines in writing.
(3) The benefits in respect of which the Minister may make a determination
under subsection (2) are such benefits (including benefits by way of
financial or other assistance in connection with housing, transport, insurance,
long service leave and superannuation) as, in the Minister’s opinion, are
necessary or desirable to assist a member in, or place the member in a position
that may facilitate, the performance of his or her functions.
(4) ASIC may reimburse a member for any loss or expenditure incurred by
the member because of, or in the course of, the performance of his or her
functions.
(5) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) A full-time member has such recreation leave entitlements as are
determined by the Remuneration Tribunal.
(2) The Minister may:
(a) grant a full-time member leave of absence, other than recreation
leave, on such terms and conditions as to remuneration or otherwise as the
Minister determines; and
(b) grant a part-time member leave of absence from a meeting of
ASIC.
(1) The Minister may make a written determination about the provision of
superannuation benefits for or in relation to a specified full-time member who,
when the determination is made, is not an eligible employee or a member of the
superannuation scheme established by deed under the Superannuation Act
1990.
(2) The Minister may, by writing, vary or revoke a determination made
under subsection (1), even if it has been varied at least once
before.
(3) The Minister must not make a determination under subsection (1),
or vary or revoke a determination so made, except in accordance with
arrangements approved by the Minister under the Superannuation Benefits
(Supervisory Mechanisms) Act 1990.
(4) Superannuation benefits may be provided in accordance with a
determination under subsection (1) as that determination is in force when
the benefits are provided.
A member holds office on such terms and conditions (if any) in respect of
matters not provided for by this Act as the Minister determines in
writing.
(1) The Minister may:
(a) appoint a person to act as a full-time member during any period when
there are less than 8 persons who are members or are acting as members in
accordance with this paragraph or paragraph (b); or
(b) appoint a person to act as a part-time member during any period when
there are less than 8 persons who are members or are acting as members in
accordance with this paragraph or paragraph (a) and there are at least 3
persons who are full-time members or are acting as members in accordance with
paragraph (a); or
(c) appoint a person to act as a full-time member or as a part-time member
during any period when a full-time member (other than the Chairperson or the
Deputy Chairperson) or a part-time member, as the case may be, is absent from
office, is acting as Deputy Chairperson in accordance with section 118 or,
in the case of a part-time member, is, for any reason, unable to perform the
functions of his or her office.
(2) Except so far as the contrary intention appears, a reference in this
Act to a member of ASIC includes a reference to a person who is acting as a
member under subsection (1).
The Minister may appoint a member to act as Chairperson:
(a) during a vacancy in the office of Chairperson, whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chairperson is
absent from office.
The Minister may appoint a member to act as Deputy Chairperson:
(a) during a vacancy in the office of Deputy Chairperson, whether or not
an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Deputy Chairperson
is absent from office or is acting as Chairperson.
A person appointed under section 116, 117 or 118 to act during a
vacancy must not continue for more than 12 months to act during the
vacancy.
(1) A member may, in writing, delegate to a person all or any of his or
her functions and powers.
(2) A member must not, without the Minister’s approval, delegate a
function or power to a person other than:
(a) a staff member; or
(b) a person who, by virtue of the regulations, is a prescribed person in
relation to the delegation.
(3) In the performance of a function, or the exercise of a power,
delegated under this section, the delegate is subject to the member’s
directions.
(1) Subject to this Part, ASIC’s staff must be persons engaged under
the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) ASIC and the APS employees assisting ASIC together constitute a
Statutory Agency; and
(b) the Chairperson of ASIC is the Head of that Statutory
Agency.
(3) In addition to the staff referred to in subsection (1), the
Chairperson may, on the Commonwealth’s behalf, employ under written
agreements such persons as the Chairperson thinks necessary for the performance
or exercise of any of its functions and powers.
(4) The terms and conditions of employment of persons employed under
subsection (3) are such as the Chairperson determines from time to time
with the Minister’s written approval.
(1) The Chairperson may, on the Commonwealth’s behalf, engage, under
written agreements, as consultants to, or to perform services for, ASIC in
connection with the performance or exercise of any of its functions or powers,
persons having suitable qualifications and experience.
(2) The terms and conditions of engagement of persons engaged under
subsection (1) are such as the Chairperson determines from time to
time.
In addition to the other staff members:
(a) officers and employees of Agencies (within the meaning of the
Public Service Act 1999), and of authorities of the Commonwealth, whose
services are made available to ASIC in connection with the performance or
exercise of any of its functions or powers; and
(b) persons whose services are so made available under arrangements made
under section 249;
are to assist ASIC.
(1) A member must, in accordance with this section, disclose to the
Minister:
(a) any direct or indirect pecuniary interest that the member has or
acquires in:
(i) a body corporate carrying on business in Australia; or
(ii) a business in Australia; and
(b) any direct or indirect pecuniary interest that the member has or
acquires in interests (including securities, futures contracts or other
financial products) regulated by ASIC; and
(c) any agreement, understanding or expectation that the member
will:
(i) resume a previous business relationship (whether or not that
relationship existed immediately before the member’s appointment);
or
(ii) enter into a new business relationship;
when the member ceases to be a member; and
(d) any severance arrangement or ongoing financial arrangement that takes
account of an agreement, understanding or expectation that must be disclosed
under paragraph (c).
(2) For the purpose of paragraph (1)(b), interests are regulated by
ASIC if ASIC has a function or power in relation to any aspect of the
acquisition, holding, disposal or provision of the interests, or of interests of
that kind.
(3) In disclosing an indirect pecuniary interest in securities, futures
contracts or other financial products, the member must identify the particular
securities, futures contracts or products.
(4) Paragraphs (1)(c) and (d) apply to agreements or understandings
entered into, or expectations arising, before or after the member’s
appointment.
(5) Paragraph (1)(c) does not require a member to disclose an
expectation to enter into a new business relationship unless the member can
identify the other party, or one or more other parties, to the relationship.
Disclosure is required whether or not the field of business or legal nature of
the relationship has been determined.
(6) A disclosure under this section must be made in writing.
(1) This section has effect where a member:
(a) is to take part, or is taking part, in determining a matter before
ASIC; and
(b) has or acquires a direct or indirect pecuniary interest, or a direct
or indirect interest of any other kind, that could conflict with the proper
performance of the member’s functions in relation to determining the
matter.
(2) If the member is not the Chairperson, the member must disclose the
interest to the Chairperson.
(3) If the member is not the Chairperson and the Chairperson becomes aware
that the member has the interest, the Chairperson must:
(a) if the Chairperson considers that the member should not take part, or
not continue to take part, as the case requires, in determining the
matter—direct the member accordingly; or
(b) in any other case—cause the member’s interest to be
disclosed to the persons concerned in the matter.
(4) The member must comply with a direction under
paragraph (3)(a).
(5) If the member is the Chairperson, he or she must cause his or her
interest to be disclosed to the persons concerned in the matter.
(6) Subject to subsection (4), the member must not take part, or
continue to take part, as the case requires, in determining the matter unless
everyone concerned in it consents to the member so taking part.
(7) Sections 27F to 27L of the Commonwealth Authorities and
Companies Act 1997 do not apply to members.
(1) This section has effect where a person, in the course of:
(a) performing functions or services as a staff member (otherwise than as
a person appointed or engaged under the Public Service Act 1999);
or
(b) performing a function, or exercising a power, as an ASIC delegate;
or
(c) performing functions or services by way of assisting an ASIC
delegate;
is required to consider a matter in which the person has a direct or
indirect pecuniary or other interest that could involve a conflict with the
proper performance or exercise by the person of those functions, services or
powers.
(2) The person must forthwith give to ASIC a written notice:
(a) stating that he or she is required to consider the matter and has an
interest in it; and
(b) setting out particulars of the interest.
(3) The person must do whatever is necessary to avoid the conflict
referred to in subsection (1).
Penalty: 50 penalty units or imprisonment for 12 months, or both.
It is a defence to a prosecution of a person for a contravention of
section 125 if it is established that when the person was required to
consider the matter he or she was not aware of a fact or thing whose existence
obliged him or her to comply with that section in relation to the
matter.
(1) ASIC must take all reasonable measures to protect from unauthorised
use or disclosure information:
(a) given to it in confidence in or in connection with the performance of
its functions or the exercise of its powers under the corporations legislation
(other than the excluded provisions); or
(b) that is protected information.
(1A) Disclosing summaries of information or statistics derived from
information is authorised use and disclosure of the information provided that
information relating to any particular person cannot be found out from those
summaries or statistics.
(1B) Disclosing:
(a) the names of entities that are RSA providers or RSA institutions for
the purposes of the RSA Act; or
(b) the addresses at which business relating to entities referred to in
paragraph (a) is conducted; or
(c) any other information that is reasonably necessary to enable members
of the public to contact a person who performs functions in relation to an RSA
(within the meaning of the RSA Act);
is authorised use and disclosure of the information.
(1C) Disclosing any or all of the following information about an RSA
provider is authorised use and disclosure of the information:
(a) whether or not the RSA provider has lodged a return under
section 44 of the RSA Act in respect of a particular year of
income;
(b) whether or not a notice, or a particular kind of notice, has been
given under section 92 of the RSA Act in relation to an RSA provider in
respect of a particular year of income.
(1D) Disclosing:
(a) the names of:
(i) superannuation funds, approved deposit funds and pooled superannuation
trusts that are superannuation entities for the purposes of the SIS Act;
or
(ii) superannuation entities that are non-complying superannuation funds
or non-complying approved deposit funds, or are not pooled superannuation
trusts, as the case may be, in relation to a specified year of income for the
purposes of Part IX of the Income Tax Assessment Act; or
(iii) superannuation funds and approved deposit funds that are eligible
roll-over funds for the purposes of Part 24 of the SIS Act; and
(b) the addresses at which business relating to funds or trusts referred
to in paragraph (a) is conducted; and
(d) any other information that is reasonably necessary to enable members
of the public to contact a person who performs functions in relation to a
superannuation entity (within the meaning of the SIS Act);
is authorised use and disclosure of the information.
(1E) Disclosing any or all of the following information about a fund,
scheme or trust (of a type referred to in subsection (1D)) is authorised
use and disclosure of the information:
(a) whether or not the trustee of the fund, scheme or trust has lodged a
return under section 36 of the SIS Act in respect of a particular year of
income;
(b) whether or not a decision has been made by APRA to give a notice, or a
particular kind of notice, in relation to the fund, scheme or trust under
section 40 of the SIS Act in relation to a particular year of
income;
(c) whether or not a notice or a particular kind of notice has been given
by APRA or ASIC under section 40 or 254 of the SIS Act in relation to the
fund, scheme or trust, in respect of a particular year of income;
(d) in the case of a superannuation fund—whether or not the trustee
of the fund has told APRA that the trustee is willing to accept a
particular kind of contribution.
(2) For the purposes of subsection (1), the disclosure of information
as required or permitted by a law of the Commonwealth or a prescribed law of a
State or internal Territory is taken to be authorised use and disclosure of the
information.
(2A) Disclosing information to one of the following is authorised use and
disclosure of the information:
(a) the Minister;
(b) the Secretary of the Department for the purpose of advising the
Minister, or an officer authorised for that purpose;
(c) APRA.
(3) For the purposes of subsection (1), the disclosure of information
by a person for the purposes of:
(a) performing the person’s functions as:
(i) a member, staff member or ASIC delegate; or
(ii) a person who is acting as a member or staff member or who is
authorised to perform or exercise a function or power of, or on behalf of, ASIC;
or
(b) the performance of functions or services by the person by way of
assisting an ASIC delegate;
is taken to be authorised use and disclosure of the information.
(4) Where the Chairperson is satisfied that particular
information:
(a) will enable or assist an agency, being CASAC, the Panel, the
Disciplinary Board, the Review Board or any other agency within the meaning of
the Freedom of Information Act 1982, to perform or exercise any of the
agency’s functions or powers; or
(aa) will enable or assist:
(i) the Australian Bureau of Criminal Intelligence; or
(ii) the Australian Financial Institutions Commission; or
(iii) the Superannuation Complaints Tribunal;
to perform any of its functions or powers; or
(ab) will enable or assist an officer of the Commonwealth
Attorney-General’s Department who is in the office known as the Office of
Law Enforcement Co-ordination to perform any of his or her functions or powers;
or
(b) will enable or assist the government, or an agency, of a State or
Territory to perform a function or exercise a power; or
(c) will enable or assist a government, or an agency, of a foreign country
to perform a function, or exercise a power, conferred by a law in force in that
foreign country; or
(d) will enable or assist a prescribed professional disciplinary body to
perform one of its functions;
the disclosure of the information to the agency, government or disciplinary
body by a person whom the Chairperson authorises for the purpose is taken to be
authorised use and disclosure of the information.
(4A) The Chairperson may impose conditions to be complied with in relation
to information disclosed under subsection (4).
(4B) The disclosure of information to a body corporate specified in
regulations under subsection (4C) (including a body corporate that is a
foreign company) is authorised use and disclosure of the information
if:
(a) the Chairperson is satisfied that the information will enable or
assist the body corporate to monitor compliance with, enforce, or perform
functions or exercise powers under:
(i) the Corporations Act; or
(iaa) the business law of a State that is not in this jurisdiction;
or
(ia) the business law of a foreign country; or
(ii) the business rules, or the listing rules (if any), of the body
corporate; and
(b) the disclosure is by a person authorised by the Chairperson for the
purpose.
(4C) The regulations may specify a body corporate for the purposes of
subsection (4B) if, and only if, the body corporate:
(a) conducts a stock market or a futures market; or
(b) is the securities clearing house or a clearing house for a futures
exchange.
(4D) The Chairperson may impose conditions to be complied with by a body
corporate and its officers, employees and agents in relation to information
disclosed to the body corporate under subsection (4B).
(4E) A person must comply with a condition imposed under
subsection (4D).
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(4EA) If ASIC discloses information to a disciplinary body under
paragraph (4)(d), the body or a member of the body:
(a) must not disclose the information to any other person; and
(b) must not use the information for any purpose other than for deciding
whether or not to take disciplinary or other action or for taking that
action.
Penalty: Imprisonment for 2 years.
(4F) If information is disclosed to a body corporate under
subsection (4B), the body corporate, or an officer, employee or agent of
the body corporate, must not, without the written consent of the
Chairperson:
(a) disclose the information to a person who is not an officer, employee
or agent of the body corporate; or
(b) use the information otherwise than for the purpose of monitoring
compliance with, enforcing, or performing functions or exercising powers
under:
(i) the Corporations Act; or
(iaa) the business law of a State that is not in this jurisdiction;
or
(ia) the business law of a foreign country; or
(ii) the business rules, or the listing rules (if any), of the body
corporate.
Penalty: 100 penalty units or imprisonment for 2 years, or both.
(5) The Chairperson may delegate all or any of his or her functions and
powers under subsection (4), (4A), (4B), (4D) or (4F) to a member or staff
member.
(6) Nothing in any of subsections (1A), (1B), (1C), (ID), (IE), (2),
(2A), (3), (4) and (4B) limits:
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of
subsection (1), authorised use or disclosure of information.
(9) In this section:
Income Tax Assessment Act means the Income Tax Assessment
Act 1936 or the Income Tax Assessment Act 1997.
protected information means information disclosed or
obtained, or a document given or produced, (whether before or after the
commencement of this section), for the purposes of a function in
section 12A and relating to the affairs of:
(a) a body or person regulated by ASIC; or
(b) a body corporate (including a body corporate that has ceased to exist)
that has at any time been, or is, related (within the meaning of the
Corporations Act) to a body regulated by ASIC; or
(c) a person who has been, is, or proposes to be, a customer of a body or
person regulated by ASIC;
other than information that has already been lawfully made available to the
public from other sources.
RSA Act means the Retirement Savings Accounts Act
1997.
SIS Act means the Superannuation Industry (Supervision)
Act 1993.
Where:
(a) because of being, or having at any time been, or acting as, or having
at any time acted as, a member or staff member; or
(b) because of being, or having at any time been, an ASIC delegate;
or
(c) in the course of assisting, or because of assisting, or having at any
time assisted, an ASIC delegate;
a person has acquired information that is not generally available but that,
if it were, would be likely to affect materially the price for dealing in a
futures contract, the person must not deal in, or procure another person to deal
in, that futures contract or a futures contract of the same kind as that futures
contract.
Penalty: 200 penalty units or imprisonment for 5 years, or both.
(1) A person who contravenes section 128 is liable to compensate any
other party to the transaction for any loss sustained by that party because of
any difference between the price at which the dealing in the futures contract
took place and the price at which it would be likely to have taken place if the
information had been generally available.
(2) Subsection (1) does not affect any other liability of a person
who contravenes section 128.
(1) Where a person is liable under section 129 to compensate another
person for a loss in relation to a transaction, the amount of the compensation
is:
(a) if the first-mentioned person has already been found by a court to be
liable under section 129 to pay an amount or amounts to a person or persons
in relation to the transaction—the amount of that loss less the amount, or
the sum of the amounts, that the first-mentioned person has been so found to be
liable to pay; or
(b) in any other case—the amount of that loss.
(2) For the purposes of subsection (1), the onus of establishing that
the transaction in relation to which a person is liable to pay compensation is
the same as the transaction in relation to which the person has already been
found liable to pay an amount or amounts lies on that person.
An action under section 129 is not maintainable more than 2 years
after the day on which the transaction was completed.
ASIC may, if it considers that it is in the public interest to do so,
bring an action under section 129 in the name, and for the benefit, of a
person.
(1) There is to be paid to ASIC such money as is appropriated by the
Parliament for the purposes of ASIC.
(2) The Minister for Finance may give directions about the amounts in
which, and the times at which, money payable under subsection (1) is to be
paid to ASIC.
ASIC’s money consists of:
(a) money paid to ASIC under subsection 133(1); and
(b) any other money paid to ASIC (including money paid by a State or
Territory, but not including money received by ASIC on behalf of a State or
Territory in the course of performing functions or exercising powers pursuant to
an agreement or arrangement entered into under subsection 11(8)).
(1) ASIC’s money may be applied only:
(a) in paying or discharging expenses, charges, obligations or liabilities
that:
(i) ASIC; or
(ii) the Panel; or
(iii) the Disciplinary Board; or
(iv) the AASB;
incurs or undertakes in connection with performing or exercising any of
its functions and powers; or
(b) in paying remuneration or allowances payable under this Act (other
than remuneration or allowances payable to members of CASAC); or
(c) in connection with the provision, in accordance with subsection
112(2), of benefits to members; or
(d) in connection with the provision, in accordance with subsection
114(4), of superannuation benefits; or
(e) in making, in respect of a full-time member who is not an eligible
employee, contributions under a superannuation or retirement scheme, however
established.
(2) Nothing in subsection (1) limits the generality of anything else
in that subsection.
(3) Subsection (1) does not prevent investment of surplus money of
ASIC under section 18 of the Commonwealth Authorities and Companies Act
1997.
(4) This section and subsection 18(3) of the Commonwealth Authorities
and Companies Act 1997 have effect subject to a provision that the
corporations legislation (other than the excluded provisions) makes about money
or property that vests in ASIC under such a law.
(5) The Minister may by writing require ASIC to pay to the Commonwealth so
much of ASIC’s money as:
(a) is not immediately required for the purposes of ASIC; and
(b) does not exceed a specified amount.
(6) ASIC must comply with a requirement under subsection (5) and must
realise so much of the property in which money has been invested under
subsection 18(3) of the Commonwealth Authorities and Companies Act 1997
as is necessary in order to so comply.
(7) Money paid by ASIC to the Commonwealth under subsection (5) forms
part of the Consolidated Revenue Fund.
(1) Except as otherwise provided by the regulations, ASIC must not,
without the approval of the Minister:
(a) enter into a contract under which ASIC is to pay or receive an amount
exceeding $250,000 or, if a higher amount is prescribed, that higher amount;
or
(b) enter into a lease of land for a period exceeding 10 years.
(2) In paragraph (1)(a):
contract does not include an agreement entered into under
subsection 120(3) or 121(1) or an agreement entered into in the exercise of a
power conferred by subsection 18(3) of the Commonwealth Authorities and
Companies Act 1997.
(1) A report on ASIC under section 9 of the Commonwealth
Authorities and Companies Act 1997 must:
(a) describe the specific goals ASIC has pursued, and the priorities it
has followed, during the year, in performing its functions and pursuing the
objects referred to in subsection 1(2); and
(b) describe what progress ASIC has made during that year towards
achieving those goals; and
(c) describe any matters that, during that year, have adversely affected
ASIC’s effectiveness or have hindered ASIC in pursuing any of those goals
and objectives; and
(d) describe the performance indicators used by ASIC and ASIC’s
performance against those indicators.
(2) The report must also set out information about the exercise during the
year of ASIC’s powers under Part 15 of the Retirement Savings
Accounts Act 1997 and under Part 29 of the Superannuation Industry
(Supervision) Act 1993.
(3) In relation to ASIC’s functions under the Insurance (Agents
and Brokers) Act 1984, the report must include information
about:
(a) the number of persons registered by ASIC for the time being as foreign
insurance agents, life insurance brokers or general insurance brokers,
respectively; and
(b) any suspensions or cancellations effected by ASIC under
section 25 or 31H of that Act during the period to which the report
relates; and
(c) any prosecutions for offences against that Act during that period;
and
(d) any insolvency of an insurance intermediary that came to ASIC’s
notice during that period; and
(e) any other matters (if any) as are prescribed.
(4) In relation to ASIC’s functions under subsection 12FA(1), the
report must include information about ASIC’s monitoring and promotion of
market integrity and consumer protection in relation to:
(a) the Australian financial system; and
(b) the provision of financial services.
(1) Subject to subsection (2), ASIC is not subject to taxation
under:
(a) a law of the Commonwealth (other than a law imposing sales tax, the
Debits Tax Act 1982 or the Fringe Benefits Tax Act 1986);
or
(b) a law of a State or Territory.
(2) The regulations may provide that subsection (1) does not apply in
relation to taxation under a specified law.
ASIC may accept gifts, bequests and devises made to ASIC on trust and may
act as trustee of money or other property vested in ASIC on trust.
ASIC must ensure that trust money is paid into an account or
accounts:
(a) maintained by ASIC under subsection 18(2) of the Commonwealth
Authorities and Companies Act 1997; and
(b) containing only trust money.
(1) Notwithstanding section 135, money or other property that ASIC
holds on trust must be applied or dealt with in accordance with ASIC’s
powers and duties as trustee, and not otherwise.
(2) Money that ASIC holds on trust may be invested in any manner in
which:
(a) the terms of the trust authorise ASIC to invest the money;
or
(b) a law in force in a State or internal Territory authorises trustees to
invest trust funds.
CASAC:
(a) is a body corporate, with perpetual succession; and
(b) is to have a common seal; and
(c) may acquire, hold and dispose of real and personal property;
and
(d) may sue and be sued in its corporate name.
Note 1: CASAC was established by section 145 of the
Australian Securities and Investments Commission Act 1989 and is
continued in existence by section 261 of this Act.
Note 2: The Commonwealth Authorities and Companies Act
1997 applies to CASAC. That Act deals with matters relating to Commonwealth
authorities, including reporting and accountability, banking and investment, and
conduct of officers.
(1) CASAC consists of the following members, namely, the Chairperson of
ASIC and such other members as hold office in accordance with this
Part.
(2) The members (other than the Chairperson of ASIC) are to be appointed
by the Minister on a part-time basis.
(3) The Minister must, by writing, appoint a member (other than the
Chairperson of ASIC) as the Convenor of CASAC.
(4) The Minister must appoint a person as a member only if the Minister is
satisfied that the person is qualified for appointment by virtue of his or her
knowledge of, or experience in, one or more of the following fields, namely,
business, the administration of companies, the financial markets, law, economics
and accounting.
(5) In appointing the members:
(a) the Minister must have regard to the desirability of the views of
business communities in this jurisdiction being adequately represented among the
members; and
(b) the Minister must ensure so far as practicable that at any time there
is at least one member of CASAC from each State in this jurisdiction and the
Northern Territory.
(6) For the purposes of subsection (5), a member is from a particular
State or Territory if he or she is a resident of that State or
Territory.
CASAC’s functions are, on its own initiative or when requested by
the Minister, to advise the Minister, and to make to the Minister such
recommendations as it thinks fit, about any matter connected with:
(a) a proposal to make corporations legislation, or to make amendments of
the corporations legislation (other than the excluded provisions); or
(b) the operation or administration of the corporations legislation (other
than the excluded provisions); or
(c) law reform in relation to the corporations legislation (other than the
excluded provisions); or
(d) companies, securities or the futures industry; or
(e) a proposal for improving the efficiency of the securities markets or
futures markets.
Subject to this Act, a person appointed as a member holds office for such
term of at least one year and at most 3 years as is specified in the instrument
of appointment, but is eligible for re-appointment.
A person appointed as a member may resign as a member by writing signed
by the person and delivered to the Minister.
The Minister may terminate the appointment of a member:
(a) because of the physical or mental incapacity of the member;
or
(b) if the member becomes bankrupt, applies to take the benefit of a law
for the relief of bankrupt or insolvent debtors, compounds with his or her
creditors or assigns remuneration or property for their benefit.
(1) A member must be paid such remuneration as is determined by the
Remuneration Tribunal but, if no determination of that remuneration by the
Tribunal is in operation, a member must be paid such remuneration as the
Minister determines in writing.
(2) A member must be paid such allowances as the Minister determines in
writing.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
(4) In this section:
member does not include the Chairperson of ASIC.
(1) Where the Convenor is absent from a meeting, the members who are
present at the meeting may appoint one of their number to act as Convenor for
the purposes of that meeting.
(2) The procedure at a meeting must be determined by the members
present.
For the purposes of the performance by CASAC of any of its functions,
CASAC may inform itself in such manner as it sees fit.
(1) The Minister may, after consulting CASAC, publish any advice or
recommendations given to him or her by CASAC.
(2) Nothing in subsection (1) affects the power of CASAC to publish
any advice or recommendations that it has given to the Minister.
(1) Subject to this Part, CASAC’s staff must be persons engaged
under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Convenor and the APS employees assisting the Convenor together
constitute a Statutory Agency; and
(b) the Convenor is the Head of that Statutory Agency.
(3) In addition to the staff referred to in subsection (1), CASAC
may, on the Commonwealth’s behalf, employ under written agreements such
persons as CASAC thinks necessary for the performance or exercise of any of its
functions and powers.
(4) The terms and conditions of employment of persons employed under
subsection (3) are such as CASAC determines from time to time with the
Minister’s written approval.
(1) CASAC may, on the Commonwealth’s behalf, engage, under written
agreements, as consultants to, or to perform services for, CASAC, in connection
with the performance or exercise of any of its functions or powers, persons
having suitable qualifications and experience.
(2) The terms and conditions of engagement of persons engaged under
subsection (1) are such as CASAC determines from time to time.
In addition to the other staff of CASAC:
(a) officers and employees of Agencies (within the meaning of the
Public Service Act 1999), and of authorities of the Commonwealth, whose
services are made available to CASAC in connection with the performance or
exercise of any of its functions or powers; and
(b) persons whose services are so made available under arrangements made
under section 249;
are to assist CASAC.
(1) There is to be paid to CASAC such money as is appropriated by the
Parliament for the purposes of CASAC.
(2) The Minister for Finance may give directions about the amounts in
which, and the times at which, money payable under subsection (1) is to be
paid to CASAC.
CASAC’s money consists of:
(a) money paid to CASAC under subsection 159(1); and
(b) any other money paid to CASAC.
(1) CASAC’s money may be applied only:
(a) in paying or discharging expenses, charges, obligations, or
liabilities, that CASAC incurs or undertakes in connection with performing or
exercising any of its functions and powers; or
(b) in paying remuneration or allowances payable under this Act to members
of CASAC.
(2) Nothing in subsection (1) limits the generality of anything else
in that subsection.
(3) Subsection (1) does not prevent investment of surplus money of
CASAC under section 18 of the Commonwealth Authorities and Companies Act
1997.
(4) This section has effect subject to a provision that a law of the
Commonwealth makes about money or property that vests in CASAC under such a
law.
(5) The Minister may by writing require CASAC to pay to the Commonwealth
so much of CASAC’s money as:
(a) is not immediately required for the purposes of CASAC; and
(b) does not exceed a specified amount.
(6) CASAC must comply with a requirement under subsection (5) and
must realise so much of the property in which money has been invested under
subsection 18(3) of the Commonwealth Authorities and Companies Act 1997
as is necessary in order to so comply.
(7) Money paid by CASAC to the Commonwealth under subsection (5)
forms part of the Consolidated Revenue Fund.
(1) Except as otherwise provided by the regulations, CASAC must not,
without the approval of the Minister:
(a) enter into a contract under which CASAC is to pay or receive an amount
exceeding $50,000 or, if a higher amount is prescribed, that higher amount;
or
(b) enter
into a lease of land for a period exceeding 10 years.
(2) In paragraph (1)(a):
contract does not include an agreement entered into under
subsection 156(3) or 157(1).
(1) Subject to subsection (2), CASAC is not subject to taxation
under:
(a) a law of the Commonwealth (other than a law imposing sales tax, the
Debits Tax Act 1982 or the Fringe Benefits Tax Act 1986);
or
(b) a law of a State or Territory.
(2) The regulations may provide that subsection (1) does not apply in
relation to taxation under a specified law.
CASAC may accept gifts, bequests and devises made to CASAC on trust and
may act as trustee of money or other property vested in CASAC on
trust.
CASAC must ensure that trust money is paid into an account or
accounts:
(a) maintained by CASAC under subsection 18(2) of the Commonwealth
Authorities and Companies Act 1997; and
(b) containing only trust money.
(1) Notwithstanding section 161, money or other property that CASAC
holds on trust must be applied or dealt with in accordance with CASAC’s
powers and duties as trustee, and not otherwise.
(2) Money that CASAC holds on trust may be invested in any manner in
which:
(a) the terms of the trust authorise CASAC to invest the money;
or
(b) a law in force in a State or internal Territory authorises trustees to
invest trust funds.
(1) The Panel consists of such members, not fewer than 5, as hold office
in accordance with this Part.
Note: The Panel was established by section 171 of the
Australian Securities and Investments Commission Act 1989 and is
continued in existence by section 261 of this Act.
(2) The Governor-General is to appoint the members on the nomination of
the Minister.
(3) Each of the members may be appointed as a full-time member or as a
part-time member.
(4) The Minister must nominate a person as a member only if the Minister
is satisfied that the person is qualified for appointment by virtue of his or
her knowledge of, or experience in, one or more of the following fields, namely,
business, the administration of companies, the financial markets, law, economics
and accounting.
(4A) Each person who is the Minister for a State in this jurisdiction or
the Northern Territory may from time to time give to the Minister the names of
persons who, in the opinion of the first-mentioned Minister:
(a) are qualified for appointment as members of the Panel by virtue of
their knowledge of, or experience in, one or more of the following fields,
namely, business, the administration of companies, the financial markets, law,
economics and accounting; and
(b) ought to be considered for appointment as members of the
Panel.
(4B) In nominating persons as members of the Panel, the Minister must
ensure so far as practicable that, at any time, at least one member of the Panel
is a person whose name has been given to the Minister under
subsection (4A).
(5) The performance of the functions or the exercise of the powers of the
Panel is not affected merely because its membership is not as prescribed by
subsections (1) and (3), unless a continuous period of 3 months has elapsed
since its membership ceased to be as so prescribed.
The Governor-General is to appoint as President of the Panel a person who
is, or is to be, a member.
The Panel has the functions and powers conferred on it by or under the
corporations legislation (other than the excluded provisions).
(1) Subject to this Act, a person appointed as a member holds office for
such term of at most 5 years as is specified in the instrument of appointment,
but is eligible for re-appointment.
(2) A person who has attained the age of 65 years must not be appointed as
a full-time member.
(3) A person must not be appointed as a full-time member for a term
extending beyond the day on which he or she will attain the age of 65
years.
(1) Subject to this Act, a person appointed as President holds office as
such until:
(a) the end of his or her current term as a member; or
(b) he or she otherwise stops being a member;
whichever happens first.
(2) A person is not ineligible to be appointed under section 173
merely because he or she has been so appointed before.
A person may resign as a member or President by writing signed and
delivered to the Governor-General.
(1) The Governor-General may terminate a member’s appointment
because of misbehaviour, or the physical or mental incapacity, of the member or
if the member:
(a) becomes bankrupt, applies to take the benefit of a law for the relief
of bankrupt or insolvent debtors, compounds with his or her creditors or assigns
remuneration or property for their benefit; or
(b) is a full-time member and engages without the Minister’s consent
in paid employment outside the duties of the member’s office; or
(c) is a full-time member and is absent from duty, except on leave granted
in accordance with section 180, for 14 consecutive days, or for 28 days in
any period of 12 months; or
(d) contravenes section 128; or
(e) without reasonable excuse, contravenes section 185.
(2) The Governor-General may, with the consent of a full-time member who
is an eligible employee, retire the member from office on the ground of
incapacity.
(1) A member must be paid such remuneration as is determined by the
Remuneration Tribunal but, if no determination of that remuneration by the
Tribunal is in operation, a member must be paid such remuneration as the
Minister determines in writing.
(2) A member must be paid such allowances as the Minister determines in
writing.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) A full-time member has such recreation leave entitlements as are
determined by the Remuneration Tribunal.
(2) The Minister may grant a full-time member leave of absence, other than
recreation leave, on such terms and conditions as to remuneration or otherwise
as the Minister determines.
A member holds office on such terms and conditions (if any) in respect of
matters not provided for by this Act as the Minister determines in
writing.
(1) The Minister may appoint a member to act as President:
(a) during a vacancy in the office of President, whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all periods, when the President is absent
from office.
(2) A person appointed under subsection (1) to act during a vacancy
must not continue for more than 12 months to act during the vacancy.
(1) The Panel must, as soon as practicable after 30 June, and in any
event before 31 October, in each year:
(a) prepare a report describing the operations of the Panel during the
year that ended on 30 June in that year; and
(b) give to the Minister a copy of the report.
(2) Where a copy of a report is given to the Minister under
subsection (1), he or she must cause a copy of the report to be laid before
each House of the Parliament within 15 sitting days of that House after he or
she receives the first-mentioned copy.
(1) The Panel must, for the purposes of the performance or exercise of its
functions or powers in relation to a particular matter, be constituted by 3
members in respect of whom a direction is in force under this section in
relation to that matter.
(2) The President may give directions about the members (the sitting
members) who are to constitute the Panel for the purposes of performing
or exercising its functions or powers in relation to particular
matters.
(3) A direction under subsection (2) must:
(a) unless the sitting members include the President—designate one
of them as President; and
(b) in any case—designate one of the sitting members as Deputy
President;
of the Panel as constituted in relation to the matter concerned.
(4) Where the President gives a direction as to the sitting members, he or
she may:
(a) at any time after the giving of the direction and before the
commencement of proceedings in relation to the matter; or
(b) if one of those persons ceases to be a member, or ceases to be
available for the purposes of proceedings in relation to a matter, during the
proceedings or after the completion of the proceedings but before the matter to
which the proceedings relate is determined—at any time after the person so
ceases to be a member or to be available;
revoke the direction and give a further direction under subsection (2)
as to the additional members.
(4A) The regulations may make provision in relation to the constitution of
the Panel for the purposes of conducting a review under section 657EA or
657EB of the Corporations Act.
(5) In this section:
functions or powers means functions or powers of the Panel
under the corporations legislation (other than the excluded
provisions).
(1) Where a member is, or is to be, a member of the Panel as constituted
for the purposes of the performance or exercise of its functions or powers in
relation to a particular matter and the member has or acquires any interest,
pecuniary or otherwise, that could conflict with the proper performance of the
member’s functions in relation to that matter:
(a) the member must disclose the interest to the President and to the
parties involved in the matter; and
(b) except with the President’s consent, the member must not take
part in the performance or exercise of the Panel’s functions or powers in
relation to the matter.
(1A) The President must not, under paragraph (1)(b), consent to a
member taking part in the performance or exercise of the Panel’s functions
or powers in relation to a matter unless the President believes, on reasonable
grounds, that the member’s interest is immaterial or indirect and will not
prevent the member from acting impartially in relation to the matter.
(2) Where the President becomes aware that a member who is, or is to be, a
member of the Panel as constituted for the purposes of the performance or
exercise of its functions or powers in relation to a particular matter has in
relation to that matter such an interest as is mentioned in subsection (1),
then:
(a) the President must revoke the direction given under subsection 184(2)
in relation to the matter unless the President believes, on reasonable grounds,
that the member’s interest is immaterial or indirect and will not prevent
the member from acting impartially in relation to the matter; or
(b) if the President is not required to revoke that direction under
paragraph (a), the President must cause the member’s interest to be
disclosed to the parties involved in the matter.
(3) In this section:
functions or powers means functions or powers of the Panel
under the corporations legislation (other than the excluded
provisions).
Divisions 2 and 3 of Part 7 apply in relation to the Panel, and
in relation to a member of the Panel, as if:
(a) a reference in section 127 to ASIC included a reference to the
Panel; and
(b) a reference in paragraph 128(1)(a) to a member of ASIC included a
reference to a member of the Panel.
For the purposes of the performance or exercise, in relation to a
particular matter, of any of the Panel’s functions and powers, this
Division has effect as if:
(a) a reference to the Panel were a reference to the Panel as constituted
in relation to that matter; and
(b) a reference to a member were a reference to a member of the Panel as
so constituted; and
(c) if the President is not a member of the Panel as so
constituted—a reference to the President were a reference to the member
designated, in a direction in force under subsection 184(2), as the President of
the Panel as so constituted; and
(d) a reference to the Deputy President were a reference to the member
designated, in a direction in force under subsection 184(2), as Deputy President
of the Panel as so constituted.
(1) The Panel may conduct proceedings for the purposes of the performance
or exercise of any of its functions and powers.
(2) The President may convene proceedings to be held at a place and time
he or she determines.
(1) Where, during Panel proceedings, the Panel is satisfied that it is
desirable to do so, the Panel may give directions preventing or restricting the
publication of submissions or evidence made or given to, or of matters contained
in documents lodged with, the Panel.
(2) In determining whether or not to give a direction under
subsection (1), the Panel must have regard to:
(a) whether submissions or evidence made or given, or that may be made or
given, or a matter that has arisen or may arise, during the proceedings is of a
confidential nature or relates to the commission, or to the alleged or suspected
commission, of an offence against an Australian law; and
(b) any unfair prejudice to a person’s reputation that would be
likely to be caused unless the Panel exercises its powers under this section;
and
(c) whether it is in the public interest that the Panel exercises its
powers under this section; and
(d) any other relevant matter.
(3) In this section:
Panel proceedings includes a part of Panel
proceedings.
(1) A member may, by written summons in the prescribed form given to a
person:
(a) require the person to appear before the Panel at 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.
(2) In Panel proceedings, the Panel may take evidence on oath or
affirmation, and for that purpose a member may:
(a) require a witness in the proceedings to either take an oath or make an
affirmation; and
(b) administer an oath or affirmation to a witness in the
proceedings.
(3) The oath or affirmation to be taken or made by a person for the
purposes of this section is an oath or affirmation that the evidence the person
will give will be true.
(4) The member presiding at Panel proceedings:
(a) may require a witness in the proceedings to answer a question put to
the witness; and
(b) may require a person appearing in the proceedings pursuant to a
summons issued under this section to produce a document specified in the
summons.
(6) If:
(a) a person appears in Panel proceedings pursuant to a summons issued
under this section; and
(b) the summons was issued at a person’s request;
the person appearing is entitled to be paid the prescribed allowances and
expenses (if any) by the person at whose request the summons was
issued.
(7) The Panel may pay such amount as it thinks reasonable on account of
the costs and expenses (if any) that a person incurs in complying with a
requirement made under this section.
In Panel proceedings, 2 members form a quorum.
A party to Panel proceedings may be legally represented in the
proceedings only with the leave of the Panel.
(1) Subject to subsections (2) to (4), the Panel may determine the
procedural rules to be followed in Panel proceedings.
(2) Panel proceedings are to be conducted in accordance with (in order of
priority):
(a) the requirements of this Division; and
(b) the requirements of the regulations.
(3) Without limiting paragraph (2)(b), the regulations may deal
with:
(a) making submissions or giving evidence in Panel proceedings;
and
(b) the right (if any) to appear, or be represented, in Panel proceedings;
and
(c) the matters that the Panel is to take into account when making a
decision in the course of Panel proceedings.
(4) The rules of procedural fairness, to the extent that they are not
inconsistent with the provisions of this Act or the regulations made under it,
apply to Panel proceedings.
(1) A member has, in the performance or exercise of any of his or her
functions and powers as a member in relation to Panel proceedings, the same
protection and immunity as a Justice of the High Court.
(3) Subject to this Act, a person who is required by a summons under
section 192 to appear in Panel proceedings, or a witness in Panel
proceedings, has the same protection as a witness in a proceeding in the High
Court.
A person must not, without reasonable excuse, fail to comply with a
requirement made under subsection 192(1), (2) or (4).
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(1) A person must not:
(a) in a written submission given to the Panel for the purposes of Panel
proceedings; or
(b) while appearing before the Panel in Panel proceedings;
give information or evidence that is false or misleading in a material
particular.
Penalty: 10 penalty units or imprisonment for 3 months, or both.
(2) It is a defence to a prosecution for a contravention of
subsection (1) if it is proved that the defendant, when giving the
information or evidence, believed on reasonable grounds that it was true and not
misleading.
(1) A person must not:
(a) obstruct or hinder the Panel or a member in the performance or
exercise of any of the Panel’s functions and powers; or
(b) disrupt Panel proceedings.
Penalty: 50 penalty units or imprisonment for 1 year, or both.
(2) A person must not, without reasonable excuse, contravene a direction
given under subsection 190(1).
Penalty: 50 penalty units or imprisonment for 1 year, or both.
(3) An offence constituted by a contravention of subsection (1) or
(2) is punishable on summary conviction.
(1) This section applies where the Panel, as constituted for the purposes
of particular Panel proceedings, is satisfied that a person has, without
reasonable excuse, failed to comply with a requirement made under
section 192 in, or in relation to, those proceedings.
(2) The Panel as so constituted may by writing certify the failure to the
Court.
(3) If the Panel does so, the Court may inquire into the case and may
order the person to comply with the requirement as specified in the
order.
(1) In Panel proceedings, the Panel may accept a written undertaking from
a person affected, or likely to be affected, by the proceedings about a matter
relevant to the proceedings.
(2) The person may withdraw or vary the undertaking at any time, but only
with the consent of the Panel.
(3) If the Panel considers that the person has breached any of the terms
of the undertaking, the Panel may apply to the Court for an order under
subsection (4).
(4) If the Court is satisfied that the person has breached a term of the
undertaking, the Court may make all or any of the following orders:
(a) an order directing the person to comply with that term of the
undertaking;
(b) any order that the Court considers appropriate directing the person to
compensate any other person who has suffered loss or damage as a result of the
breach;
(c) any other order that the Court considers appropriate.
(1) The Disciplinary Board consists of:
(a) a Chairperson; and
(b) a member selected by the Minister from a panel of 5 persons, being
persons resident in Australia, nominated by the National Council of the
Institute of Chartered Accountants in Australia; and
(c) a member selected by the Minister from a panel of 5 persons, being
persons resident in Australia, nominated by the National Council of the
Australian Society of Certified Practising Accountants.
Note: The Disciplinary Board was established by
section 202 of the Australian Securities and Investments Commission Act
1989 and is continued in existence by section 261 of this
Act.
(2) A person is not eligible for appointment as Chairperson unless he or
she is enrolled as a barrister, as a solicitor, as a barrister and solicitor or
as a legal practitioner of the High Court, of any federal court or of the
Supreme Court of a State or Territory and has been so enrolled for a period of
at least 5 years.
(3) The Chairperson and each of the other members are to be appointed by
the Minister on a part-time basis.
The Disciplinary Board has the functions and powers conferred on it by or
under the corporations legislation (other than the excluded
provisions).
Subject to this Act, the Chairperson, each other member and each deputy
of a member holds office for such term of at most 3 years as is specified in the
instrument of his or her appointment, but is eligible for
re-appointment.
A person may resign his or her office as Chairperson, member or deputy of
a member by writing signed and delivered to the Minister.
(1) The Minister may terminate the appointment of the Chairperson, any
other member or a deputy of a member because of misbehaviour or physical
incapacity.
(2) If the Chairperson, any other member or a deputy of a
member:
(a) is absent, without leave of the Disciplinary Board, from 3 consecutive
meetings of the Board (being, in the case of a deputy of a member, meetings that
the deputy is required to attend); or
(b) becomes bankrupt, applies to take the benefit of a law for the relief
of bankrupt or insolvent debtors, compounds with his or her creditors or assigns
remuneration or property for their benefit; or
(c) is convicted in Australia of an offence punishable by imprisonment for
12 months or longer; or
(d) becomes of unsound mind; or
(e) fails, without reasonable excuse, to comply with
section 211;
the Minister must terminate his or her appointment.
The Minister may appoint a person who is eligible for appointment as
Chairperson to act as Chairperson:
(a) during a vacancy in the office of Chairperson, whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chairperson is
absent from office.
(1) The Minister may:
(a) appoint a person selected by him or her from the panel referred to in
paragraph 203(1)(b) to be the deputy of the member referred to in that
paragraph; and
(b) appoint a person selected by him or her from the panel referred to in
paragraph 203(1)(c) to be the deputy of the member referred to in that
paragraph.
(2) A deputy of a member is entitled to attend meetings of the
Disciplinary Board at which the member is not present and, while so attending,
is taken to be a member of the Disciplinary Board.
(1) The Chairperson must convene such meetings of the Disciplinary Board
as he or she considers necessary for the performance of its functions.
(2) The Chairperson must preside at all meetings of the Disciplinary
Board.
(3) At a meeting of the Disciplinary Board, the Chairperson and one member
constitute a quorum.
(4) A question arising at a meeting of the Disciplinary Board must be
determined by a majority of votes of the persons present and voting.
(5) At a meeting, the Chairperson has a deliberative vote and, in the
event of an equality of votes, also has a casting vote.
(6) Subject to this section, the procedures for convening meetings of the
Disciplinary Board and for the conduct of business by the Disciplinary Board
must be as the Disciplinary Board determines.
(1) For the purposes of this section, member includes a
deputy of a member.
(2) A member who has a direct or indirect pecuniary interest in a matter
being considered or about to be considered by the Disciplinary Board must, as
soon as possible after the relevant facts have come to his or her knowledge,
disclose the nature of his or her interest at a meeting of the Disciplinary
Board.
(3) A disclosure under subsection (2) must be recorded in the minutes
of the meeting of the Disciplinary Board and the member must not, unless the
Minister or the Disciplinary Board otherwise determines:
(a) be present during any deliberation of the Disciplinary Board with
respect to that matter; or
(b) take part in any decision of the Disciplinary Board with respect to
that matter.
(4) For the purpose of the making of a determination by the Disciplinary
Board under subsection (3) in relation to a member who has made a
disclosure under subsection (2), a member who has a direct or indirect
pecuniary interest in the matter to which the disclosure relates must
not:
(a) be present during any deliberation of the Disciplinary Board for the
purpose of making the determination; or
(b) take part in the making by the Disciplinary Board of the
determination.
(1) In this section:
member includes a deputy of a member.
(2) A member must be paid such remuneration as is determined by the
Remuneration Tribunal but, if no determination of that remuneration by the
Tribunal is in operation, a member must be paid such remuneration as the
Minister determines in writing.
(3) A member must be paid such allowances as the Minister determines in
writing.
(4) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) The Disciplinary Board must take all reasonable measures to protect
from unauthorised use or disclosure information given to it in confidence in or
in connection with the performance of its functions or the exercise of its
powers under the corporations legislation (other than the excluded
provisions).
(2) For the purposes of subsection (1), the disclosure of
information:
(a) as required or permitted by a law of the Commonwealth or a prescribed
law of a State or Territory; or
(b) in order to enable or assist an authority or person in:
(i) a State or Territory; or
(ii) a country outside Australia and the external Territories;
to perform or exercise a function or power that corresponds, or is
analogous, to any of the Disciplinary Board’s, or ASIC’s functions
and powers;
is taken to be authorised disclosure of the information.
(1) The Disciplinary Board must, as soon as practicable after
30 June, and in any event before 31 October, in each year:
(a) prepare a report describing the operations of the Disciplinary Board
during the year that ended on 30 June in that year; and
(b) give to the Minister a copy of the report.
(2) Where a copy of a report is given to the Minister under
subsection (1), he or she must cause a copy of the report to be laid before
each House of the Parliament within 15 sitting days of that House after he or
she receives the first-mentioned copy.
In this Division:
hearing means a hearing held by the Disciplinary Board under
this Division.
(1) The Disciplinary Board may, at a meeting of the Disciplinary Board,
hold a hearing for the purpose of the performance of its functions, or the
exercise of its powers.
(2) Subject to subsection (3), hearings must take place in
private.
(3) If a person (other than ASIC) who is entitled to be given an
opportunity to appear at a hearing requests that the hearing take place in
public, the hearing must, subject to any directions of the Disciplinary Board
under subsection (5), take place in public.
(4) The Disciplinary Board may give directions as to the persons who may
be present at a hearing that is to take place in private.
(5) Where, at a hearing that is taking place in public at the request of a
person, the Disciplinary Board is satisfied that it is desirable to do so by
reason of the confidential nature of any evidence or matter or in order to
protect the interests of any other person, the Disciplinary Board may:
(a) direct that a part of the hearing take place in private and give
directions as to the persons who may be present; or
(b) give directions preventing or restricting the publication of evidence
given before the Disciplinary Board or of matters contained in documents lodged
with or produced to the Disciplinary Board.
(6) Nothing in a direction given by the Disciplinary Board under
subsection (4) or paragraph (5)(a) prevents the presence at a hearing
of:
(a) a person representing ASIC pursuant to subsection 218(3); or
(b) a person who is entitled to be given an opportunity to appear at the
hearing; or
(c) a person representing, pursuant to subsection 218(3), a person
referred to in paragraph (b); or
(d) a person representing, pursuant to subsection 218(3), a person who, by
reason of a direction given by the Disciplinary Board under subsection (4),
or paragraph (5)(a), of this section is entitled to be present at the
hearing.
(7) Where the Disciplinary Board directs that a hearing or part of a
hearing take place in private, a person (other than the Chairperson, a member,
or a member of the staff of the Disciplinary Board approved by the Disciplinary
Board) must not be present at the hearing unless he or she is entitled to be
present by virtue of the direction or by virtue of
subsection (6).
Penalty: 10 penalty units or imprisonment for 3 months.
(8) Where the Disciplinary Board is required to give a person an
opportunity to appear at a hearing, the Disciplinary Board must appoint a day,
time and place for the hearing and cause notice in writing of the day, time and
place to be given to the person.
(9) A person who is entitled to be given an opportunity to appear at a
hearing and who does not wish to appear at the hearing may, before the day of
the hearing, lodge with the Disciplinary Board in writing any submissions that
he, she or it wishes the Disciplinary Board to take into account in relation to
the matter.
(10) The Disciplinary Board must take into account a submission made to or
lodged with, or evidence adduced before, the Disciplinary Board when making any
decision on the matter to which the submission or evidence relates.
(1) The Chairperson or a member may summon a person to appear at a hearing
to give evidence and to produce such documents (if any) as are referred to in
the summons, being documents relating to the matters that are the subject of the
hearing.
(2) The Disciplinary Board may, at a hearing, take evidence on oath or
affirmation and for that purpose the Chairperson may:
(a) require a person appearing at the hearing to give evidence to either
take an oath or make an affirmation; and
(b) administer an oath or affirmation to a person so appearing at the
hearing.
(3) The oath or affirmation to be taken or made by a person for the
purposes of subsection (2) is an oath or affirmation that the evidence he
or she will give will be true.
(1) At a hearing:
(a) the proceedings must be conducted with as little formality and
technicality, and with as much expedition, as the requirements of the
corporations legislation (other than the excluded provisions) and a proper
consideration of the matters before the Disciplinary Board permit; and
(b) the Disciplinary Board is not bound by the rules of evidence;
and
(c) the Disciplinary Board may, on such conditions as it thinks fit,
permit a person to intervene in the proceedings.
(2) The Disciplinary Board must observe the rules of natural justice at
and in connection with a hearing.
(3) At a hearing:
(a) ASIC may be represented by:
(i) a staff member, or a member or acting member, of ASIC; or
(ii) a person authorised by ASIC for the purpose; and
(b) a natural person may appear in person or may be represented by an
employee of the person approved by the Disciplinary Board; and
(c) a body corporate (other than ASIC) may be represented by an employee,
or by a director or other officer, of the body corporate approved by the
Disciplinary Board; and
(d) an unincorporated association of persons or a member of an
unincorporated association of persons may be represented by a member or officer
of the association approved by the Disciplinary Board; and
(e) any person may be represented by a barrister or solicitor of the
Supreme Court of a State or Territory or of the High Court.
(4) A person who attends at a hearing pursuant to a summons issued under
subsection 217(1) is entitled to be paid:
(a) in a case where the summons was issued at another person’s
request—by that other person; or
(b) in any other case—by the Disciplinary Board;
such allowances and expenses as are provided for by the
regulations.
(5) The Disciplinary Board may permit a person appearing as a witness at a
hearing to give evidence by tendering, and, if the Disciplinary Board thinks
fit, verifying by oath, a written statement.
(1) A person served, as prescribed, with a summons to appear as a witness
at a hearing must not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from
further attendance, by the Chairperson.
(2) A person appearing as a witness at a hearing must not, without
reasonable excuse:
(a) when required pursuant to subsection 217(2) to either take an oath or
make an affirmation—refuse or fail to comply with the requirement;
or
(b) refuse or fail to answer a question that he or she is required to
answer by the Chairperson; or
(c) refuse or fail to produce a document that he or she was required to
produce by a summons under subsection 217(1) served on him or her as
prescribed.
(3) A person must not, at a hearing, give evidence that is false or
misleading.
(4) A person must not contravene subsection (1), (2) or
(3).
Penalty: 10 penalty units or imprisonment for 3 months.
(5) A person who contravenes subsection (3) is not guilty of an
offence against subsection (4) if it is proved that he or she, when giving
the evidence, believed on reasonable grounds that it was true and not
misleading.
(6) Where the Disciplinary Board is satisfied that:
(a) a person served, as prescribed, with a summons to appear as a witness
at a hearing has, without reasonable excuse, failed to attend as required by
paragraph (1)(a) or (b); or
(b) a person appearing as a witness at a hearing has, without reasonable
excuse:
(i) when required pursuant to subsection 217(2) either to take an oath or
make an affirmation; or
(ii) when required by the Chairperson to answer a question; or
(iii) when required to produce a document by a summons under subsection
217(1) served on him or her as prescribed;
refused or failed to comply with the requirement;
the Chairperson may, by instrument in writing, certify the failure to
attend or the refusal or failure to comply with the requirement, as the case may
be, to the Court.
(7) Where a certificate is given under subsection (6), the Court may
inquire into the case and, if it is satisfied that the person to whom the
certificate relates has, without reasonable excuse, failed to attend or refused
or failed to comply with a requirement as mentioned in the
certificate:
(a) may order the person to attend or to comply with the requirement at a
hearing to be held at a time and place specified in the order; or
(b) may punish the person in the same manner as if he or she had been
guilty of contempt of the Court and, if it thinks fit, also make an order under
paragraph (a).
(1) A person must not:
(a) obstruct or hinder the Disciplinary Board or a member in the
performance or exercise of any of the Disciplinary Board’s functions and
powers; or
(b) disrupt a hearing.
Penalty: 10 penalty units or imprisonment for 3 months.
(2) A person must not, without reasonable excuse, contravene a direction
given under paragraph 216(5)(b).
Penalty: 10 penalty units or imprisonment for 3 months.
(3) An offence constituted by a contravention of subsection (1) or
(2) is punishable on summary conviction.
(1) The Chairperson or a member has, in the performance of his or her
functions or the exercise of his or her powers as the Chairperson or a member in
relation to a hearing, the same protection and immunity as a Justice of the High
Court.
(2) A barrister, solicitor or other person appearing on behalf of a person
at a hearing has the same protection and immunity as a barrister has in
appearing for a party in proceedings in the High Court.
(3) Subject to this Act, a person summoned to attend or appearing as a
witness at a hearing has the same protection as a witness in proceedings in the
High Court.
A hearing is, for the purposes of Part III of the Crimes Act
1914, taken to be a judicial proceeding.
(1) Where:
(a) the Disciplinary Board holds a hearing in relation to a person in
accordance with subsection 1294(1) of the Corporations Act; and
(b) the Disciplinary Board cancels or suspends the registration of the
person as an auditor, as a liquidator or as a liquidator of a specified body
corporate, or deals with the person:
(i) by admonishing or reprimanding the person; or
(ii) by requiring the person to give an undertaking to engage in, or to
refrain from engaging in, specified conduct;
the Disciplinary Board may require the person to pay an amount specified by
the Disciplinary Board, being all or part of:
(c) the costs of and incidental to the hearing; or
(d) the costs of ASIC in relation to the hearing; or
(e) the costs mentioned in paragraph (c) and the costs mentioned in
paragraph (d).
(2) Where:
(a) the Disciplinary Board holds a hearing in relation to a person in
accordance with subsection 1294(1) of the Corporations Act; and
(b) the Disciplinary Board refuses to make an order cancelling or
suspending the registration of the person as an auditor, as a liquidator or as a
liquidator of a specified body corporate, as the case requires, and does not
deal with the person in any of the ways mentioned in
subparagraphs (1)(b)(i) and (ii);
the Disciplinary Board may require ASIC to pay an amount specified by the
Disciplinary Board, being all or part of:
(c) the costs of and incidental to the hearing; or
(d) the costs of the person in relation to the hearing; or
(e) the costs mentioned in paragraph (c) and the costs mentioned in
paragraph (d).
(3) Where:
(a) under subsection (1), the Disciplinary Board requires a person to
pay all or part of the costs of and incidental to a hearing held by the
Disciplinary Board in relation to the person (whether or not the Disciplinary
Board also requires the person to pay all or part of ASIC’s costs in
relation to the hearing); or
(b) under subsection (2), the Disciplinary Board requires ASIC to pay
all or part of the costs of and incidental to a hearing held by the Disciplinary
Board in relation to a person (whether or not the Disciplinary Board also
requires ASIC to pay all or part of the costs of the person in relation to the
hearing);
the amount of the costs of and incidental to the hearing so required to be
paid by the first-mentioned person or by ASIC, as the case may be, may be
recovered in a court of competent jurisdiction as a debt due to the
Commonwealth.
(4) Where, under subsection (1), the Disciplinary Board requires a
person to pay all or part of ASIC’s costs in relation to a hearing held by
the Disciplinary Board in relation to the person (whether or not the
Disciplinary Board also requires the person to pay all or part of the costs of
and incidental to the hearing), the amount of ASIC’s costs so required to
be paid by the person may be recovered in a court of competent jurisdiction as a
debt due to the Commonwealth.
(5) Where, under subsection (2), the Disciplinary Board requires ASIC
to pay all or part of the costs of a person in relation to a hearing held by the
Disciplinary Board in relation to the person (whether or not the Disciplinary
Board also requires ASIC to pay all or part of the costs of and incidental to
the hearing), the amount of the costs of the person so required to be paid by
ASIC may be recovered in a court of competent jurisdiction as a debt due to the
person.
The main objects of this Part are:
(a) to facilitate the development of accounting standards that require the
provision of financial information that:
(i) allows users to make and evaluate decisions about allocating scarce
resources; and
(ii) assists directors to discharge their obligations in relation to
financial reporting; and
(iii) is relevant to assessing performance, financial position, financing
and investment; and
(iv) is relevant and reliable; and
(v) facilitates comparability; and
(vi) is readily understandable; and
(b) to facilitate the Australian economy by:
(i) reducing the cost of capital; and
(ii) enabling Australian entities to compete effectively overseas;
and
(iii) having accounting standards that are clearly stated and easy to
understand; and
(c) to maintain investor confidence in the Australian economy (including
its capital markets).
Functions
(2) The FRC functions are:
(a) to provide broad oversight of the process for setting accounting
standards in Australia and to give the Minister reports and advice on that
process; and
(b) to appoint the members of the AASB (other than the Chair);
and
(c) to approve and monitor the AASB’s:
(i) priorities; and
(ii) business plan; and
(iii) budget; and
(iv) staffing arrangements (including level, structure and composition of
staffing); and
(d) to determine the AASB’s broad strategic direction; and
(e) to give the AASB directions, advice or feedback on matters of general
policy and the AASB’s procedures; and
(f) to monitor the development of international accounting standards and
the accounting standards that apply in major international financial centres,
and:
(i) to further the development of a single set of accounting standards for
world-wide use with appropriate regard to international developments;
and
(ii) to promote the adoption of international best practice accounting
standards in the Australian accounting standard setting process if doing so
would be in the best interests of both the private and public sectors in the
Australian economy; and
(g) to monitor:
(i) the operation of accounting standards to assess their continued
relevance and their effectiveness in achieving their objectives in respect of
both the private and public sectors of the Australian economy; and
(ii) the effectiveness of the AASB’s consultative arrangements;
and
(h) to seek contributions towards the costs of the Australian accounting
standard setting process; and
(i) to monitor and periodically review the level of funding, and the
funding arrangements, for the AASB; and
(j) to establish appropriate consultative mechanisms; and
(k) to advance and promote the main objects of this Part; and
(l) any other functions that the Minister confers on the FRC by written
notice to the FRC Chair.
Note: The FRC was established by subsection 225(1) of the
Australian Securities and Investments Commission Act 1989 and is
continued in existence by section 261 of this Act.
Powers
(3) As well as any other powers conferred by this Act, the FRC has power
to do all things necessary or convenient to be done for or in connection with
the performance of its functions.
(4) Without limiting subsection (3), the FRC may establish committees
and advisory groups.
Restriction on powers
(5) The FRC does not have power to direct the AASB in relation to the
development, or making, of a particular standard.
(6) The FRC does not have power to veto a standard formulated and
recommended by the AASB.
(2) The AASB:
(a) is a body corporate with perpetual succession; and
(b) must have a common seal; and
(c) may acquire, hold and dispose of real and personal property;
and
(d) may sue and be sued in its corporate name.
Note 1: The AASB was established by subsection 226(1) of the
Australian Securities and Investments Commission Act 1989 and is
continued in existence by section 261 of this Act.
Note 2: The Commonwealth Authorities and Companies Act
1997 applies to the AASB. This Act makes provision for reporting obligations
(annual report, interim reports and estimates), accounting records, audit,
banking, investment of funds and duties of officers.
(3) All courts, judges and persons acting judicially must:
(a) take judicial notice of the imprint of the common seal of the AASB
appearing on a document; and
(b) presume that the document was duly sealed.
Functions
(1) The functions of the AASB are:
(a) to develop a conceptual framework, not having the force of an
accounting standard, for the purpose of evaluating proposed accounting standards
and international standards; and
(b) to make accounting standards under section 334 of the
Corporations Act for the purposes of the corporations legislation (other than
the excluded provisions); and
(c) to formulate accounting standards for other purposes; and
(d) to participate in and contribute to the development of a single set of
accounting standards for world-wide use; and
(e) to advance and promote the main objects of this Part.
Note 1: The standards made under paragraph (b) are
given legal effect by the Corporations Act. The standards formulated under
paragraph (c) do not have legal effect under the Corporations Act itself
but may be applied or adopted by some other authority.
Note 2: See section 224 and sections 228 to 233
for the framework within which the AASB is to formulate and make accounting
standards.
(2) In carrying out its functions under paragraphs (1)(a) and (d),
the AASB must have regard to the interests of Australian corporations which
raise or propose to raise capital in major international financial
centres.
Powers
(3) The AASB has power to:
(a) engage staff and consultants; and
(b) establish committees, advisory panels and consultative groups;
and
(c) receive money contributed towards its operating costs; and
(d) do anything else that is necessary for, or reasonably incidental to,
the performance of its functions.
Manner of making and formulating standards
(4) Without limiting paragraph (1)(b) or (c), the AASB may make or
formulate an accounting standard by issuing the text of an international
accounting standard. The text of the international accounting standard may be
modified to the extent necessary to take account of the Australian legal or
institutional environment and, in particular, to ensure that any disclosure and
transparency provisions in the standard are appropriate to the Australian legal
or institutional environment.
Manner of participating in the development of international
standards
(5) Without limiting paragraph (1)(d), the AASB may distribute the
text of a draft international accounting standard (whether or not modified to
take account of the Australian legal or institutional environment) for the
purposes of consultation.
(7) This Part confers functions and powers to the extent to which doing so
promotes, encourages and facilitates the integration and efficiency of, and
investment in, Australia’s national economy.
Objects of this Part
(1) In interpreting an accounting standard made or formulated by the AASB,
a construction that would promote the objects of this Part is to be preferred to
a construction that would not promote those objects.
Note: Section 224 states the main objects of this
Part.
Purposes or objects of particular standard
(2) In interpreting an accounting standard made or formulated by the AASB,
a construction that would promote a purpose or object of the standard (to the
extent to which it is not inconsistent with the objects of this Part) is to be
preferred to a construction that would not promote that purpose or object. This
is so even if the purpose or object is not expressly stated in the
standard.
(1) Accounting standards made or formulated by the AASB may:
(a) be of general or limited application (including a limitation to
specified bodies or undertakings); and
(b) differ according to differences in time, place or
circumstance.
(2) In making and formulating accounting standards, the AASB:
(a) must have regard to the suitability of a proposed standard for
different types of entities; and
(b) may apply different accounting requirements to different types of
entities; and
(c) must ensure that there are appropriate accounting standards for each
type of entity that must comply with accounting standards.
The accounting standards for the preparation of financial reports for a
period may require the inclusion in those reports of comparative amounts for
earlier periods.
(1) The AASB must carry out a cost/benefit analysis of the impact of a
proposed accounting standard before making or formulating the standard. This
does not apply where the standard is being made or formulated by issuing the
text of an international standard (whether or not modified to take account of
the Australian legal or institutional environment).
Note: Subsection 227(3) allows the AASB to make or formulate
a standard by issuing the text of an international standard. Under
subsection (2) of this section, the AASB will have done a cost/benefit
analysis of the international standard used in that way.
(2) The AASB must carry out a cost/benefit analysis of the impact of a
proposed international accounting standard before:
(a) providing comments on a draft of the standard; or
(b) proposing the standard for adoption as an international
standard.
(3) The AASB has to comply with subsections (1) and (2) only to the
extent to which it is reasonably practicable to do so in the
circumstances.
(4) The Minister may direct the AASB to give the Minister details of a
cost/benefit analysis carried out under this section. The AASB must comply with
the direction.
In performing its functions, the AASB must:
(a) follow the broad strategic direction determined by the FRC under
paragraph 225(2)(d); and
(b) follow the general policy directions given by the FRC under paragraph
225(2)(e); and
(c) take into account the advice and feedback on matters of general policy
given by the FRC under paragraph 225(2)(e).
The Minister may give the AASB a direction about the role of
international accounting standards in the Australian accounting standard setting
system. Before giving a direction under this section, the Minister must receive
and consider a report from the FRC about the desirability of giving the
direction. The AASB must comply with the direction.
A failure to comply with this Division in relation to the making of an
accounting standard does not affect the validity of the standard.
(1) The members of the FRC are appointed by the Minister in writing. The
Minister may appoint a person by specifying an organisation or body that is to
choose the person who is appointed.
(2) The members hold office on the terms and conditions that are
determined by the Minister.
(3) The Minister must appoint one of the members to be Chair of the FRC.
The appointment must be in writing. The FRC may appoint one of its members to be
Deputy Chair of the FRC.
(1) As soon as practicable after 30 June in each year, and in any
event before 31 October, the FRC must give the Minister a report
on:
(a) the operations of:
(i) the FRC and its committees and advisory groups; and
(ii) the AASB and its committees, advisory panels and consultative groups;
and
(b) the achievement of the objects set out in section 224;
during the year that ended on 30 June in that year.
(2) The report must include details of any change to the AASB’s
priorities or business plan that was made as a result of action taken by the
FRC.
(3) The Minister may grant an extension of time in special
circumstances.
(4) The Minister must table the report in each House of the Parliament as
soon as practicable.
(5) If the FRC is established during the last 3 months of a year ending on
30 June:
(a) the FRC is not required to prepare an annual report for that year;
and
(b) the period from the time of establishment to the end of that year must
be dealt with in the next annual report.
(6) If the FRC is established during the first 9 months of a year ending
on 30 June, the annual report for that year must cover the period from the
time of establishment to the end of that year.
The FRC may determine its own procedural rules (including rules as to
notice of meetings, quorum and voting).
(1) Meetings of the AASB are to be chaired by:
(a) the Chair; or
(b) the Deputy Chair if the Chair is absent; or
(c) a member chosen by the members present if both the Chair and the
Deputy Chair are absent.
(2) If a meeting of the AASB, or a part of one of its meetings, concerns
the contents of accounting standards or international accounting standards, the
meeting or that part of it must be held in public.
(3) The AASB must:
(a) comply with any directions about its procedure that the FRC gives
under paragraph 225(2)(e); and
(b) take into account the advice and feedback about its procedure that the
FRC gives under paragraph 225(2)(e).
(4) Otherwise, the AASB may determine its own procedural rules (including
rules as to notice of meetings, quorum and voting).
Appointment of Chair
(1) The Minister appoints the Chair of the AASB.
Appointment of other members
(2) The FRC appoints the other members of the AASB. The AASB may appoint
one of its members to be Deputy Chair of the AASB.
Qualification for appointment
(3) A person must not be appointed as a member of the AASB unless their
knowledge of, or experience in, business, accounting, law or government
qualifies them for the appointment.
Appointment document
(4) An appointment under subsection (1) or (2) is to be made in
writing.
Period of appointment
(5) The appointment document must specify the period of the appointment
(not exceeding 5 years). A member holds office for the period specified in the
appointment document and is eligible for re-appointment.
Terms and conditions of appointment
(6) The Chair holds office on the terms and conditions that are determined
by the Minister. The other members hold office on the terms and conditions
determined by the FRC.
Resignation
(1) A member of the AASB may resign their appointment by giving a written
resignation to:
(a) if the member is the Chair of the AASB—the Minister;
or
(b) in any other case—the Chair of the FRC.
Termination of Chair’s appointment
(2) The Chair is not to be removed from office except as provided by
subsection (3) or (4).
(3) The Minister may terminate the appointment of the Chair of the AASB
for:
(a) misbehaviour or physical or mental incapacity; or
(b) breach of the terms and conditions of their appointment.
(4) The Minister must terminate the appointment of the Chair of the AASB
if the Chair:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(c) compounds with their creditors; or
(d) makes an assignment of their remuneration or property for the benefit
of their creditors; or
(e) contravenes section 237.
Termination of ordinary member’s appointment
(5) A member of the AASB (other than the Chair) is not to be removed from
office except as provided by subsection (6) or (7).
(6) The FRC may terminate the appointment of a member of the AASB (other
than the Chair) for:
(a) misbehaviour or physical or mental incapacity; or
(b) breach of the terms and conditions of the member’s
appointment.
(7) The FRC must terminate the appointment of a member of the AASB (other
than the Chair) if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(c) compounds with their creditors; or
(d) makes an assignment of their remuneration or property for the benefit
of their creditors; or
(e) contravenes section 237.
(1) The Minister may appoint a person to act as Chair of the
AASB:
(a) during a vacancy in the office of Chair (whether or not an appointment
has previously been made to the office); or
(b) during any period, or during all periods, when the Chair is absent
from duty or from Australia, or is for any reason unable to perform the duties
of the office.
(2) The AASB may appoint one of its members to act as Deputy Chair of the
AASB:
(a) during a vacancy in the office of Deputy Chair (whether or not an
appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Deputy Chair is
absent from duty or from Australia, or is for any reason unable to perform the
duties of the office.
(3) The FRC may appoint a person to act as a member of the AASB (other
than the Chair):
(a) during a vacancy in the office of member (whether or not an
appointment has previously been made to the office); or
(b) during any period, or during all periods, when the member is absent
from duty or from Australia, or is for any reason unable to perform the duties
of the office.
(4) Anything done by or in relation to a person purporting to act under an
appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect in connection with the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) The FRC and the AASB must take all reasonable measures to protect from
unauthorised use or disclosure information given to it in confidence.
(2) For the purposes of subsection (1), the disclosure of information
is taken to be authorised if the disclosure:
(a) is required or permitted by a law of the Commonwealth or a prescribed
law of a State or Territory; or
(b) is made in order to enable an authority or person in a country outside
Australia and the external Territories to perform or exercise a function or
power that corresponds, or is analogous, to any of the FRC’s or the
AASB’s functions or powers; or
(c) is made to a body that sets international accounting standards;
or
(d) is made to ASIC for the purposes of its performance of its functions
under the corporations legislation (other than the excluded
provisions).
The money of the AASB must be applied only:
(a) in payment or discharge of the costs, expenses and other obligations
incurred by the AASB in the performance of its functions or the exercise of its
powers under this Act; and
(b) in meeting the administrative expenses of the FRC and the committees
and advisory groups it establishes; and
(c) in payment of any remuneration and allowances payable to any person
appointed under this Part.
(2) The Parliamentary Committee consists of 10 members, of whom:
(a) 5 are to be senators appointed by the Senate; and
(b) 5 are to be members of the House of Representatives appointed by that
House.
Note: The Parliamentary Committee was established by
subsection 241(1) of the Australian Securities and Investments Commission Act
1989 and is continued in existence by section 261 of this
Act.
(3) The appointment of members by a House must be in accordance with that
House’s practice relating to the appointment of members of that House to
serve on joint select committees of both Houses.
(4) A person is not eligible for appointment as a member if he or she
is:
(a) a Minister; or
(b) the President of the Senate; or
(c) the Speaker of the House of Representatives; or
(d) the Deputy-President and Chairman of Committees of the Senate;
or
(e) the Chairman of Committees of the House of Representatives.
(5) A member ceases to hold office:
(a) when the House of Representatives expires or is dissolved;
or
(b) if he or she becomes the holder of an office referred to in a
paragraph of subsection (4); or
(c) if he or she ceases to be a member of the House by which he or she was
appointed; or
(d) if he or she resigns his or her office as provided by
subsection (6) or (7), as the case requires.
(6) A member appointed by the Senate may resign his or her office by
writing signed and delivered to the President of the Senate.
(7) A member appointed by the House of Representatives may resign his or
her office by writing signed and delivered to the Speaker of that
House.
(8) A House may appoint one of its members to fill a vacancy among the
members of the Parliamentary Committee appointed by that House.
Subject to this Act, all matters relating to the Parliamentary
Committee’s powers and proceedings must be determined by resolution of
both Houses.
The Parliamentary Committee’s duties are:
(a) to inquire into, and report to both Houses on:
(i) activities of ASIC or the Panel, or matters connected with such
activities, to which, in the Parliamentary Committee’s opinion, the
Parliament’s attention should be directed; or
(ii) the operation of the corporations legislation (other than the
excluded provisions), or of any other law of the Commonwealth, of a State or
Territory or of a foreign country that appears to the Parliamentary Committee to
affect significantly the operation of the corporations legislation (other than
the excluded provisions); and
(b) to examine each annual report that is prepared by a body established
by this Act and of which a copy has been laid before a House, and to report to
both Houses on matters that appear in, or arise out of, that annual report and
to which, in the Parliamentary Committee’s opinion, the Parliament’s
attention should be directed; and
(c) to inquire into any question in connection with its duties that is
referred to it by a House, and to report to that House on that
question.
Where:
(a) a person does or omits to do an act outside Australia; and
(b) if that person had done or omitted to do that act in Australia, the
person would, by reason of also having done or omitted to do an act in
Australia, have been guilty of an offence against this Act;
the person is guilty of that offence.
Neither subsection 16(5A) nor (5AA) of the Financial Transactions
Reports Act 1988 prohibits a cash dealer from communicating or disclosing a
fact or information referred to in either of those subsections:
(a) to the Australian Stock Exchange Limited; or
(b) to ASIC; or
(c) to a body corporate approved under section 769 of the
Corporations Act as a stock exchange; or
(d) to a body corporate approved under section 770 of the
Corporations Act as an approved securities organisation; or
(e) 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
(f) 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
(g) to a body corporate approved under section 779B of the
Corporations Act as a securities clearing house; or
(h) to a body corporate approved under section 1126 of the
Corporations Act as a futures exchange; or
(i) 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; or
(j) to a body corporate approved under section 1131 of the
Corporations Act as a clearing house for a futures exchange; or
(k) to a body corporate approved under section 1132 of the
Corporations Act as a futures association.
(1) In this section:
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
(2) Applications may be made to the Administrative Appeals Tribunal for
review of a decision by ASIC:
(a) to make an order under section 72, 73 or 74; or
(b) to make an order under subsection 75(1) varying an order in force
under Division 8 of Part 3; or
(c) to refuse to vary or revoke an order in force under Division 8 of
Part 3.
(1) This section applies if ASIC makes a decision to which subsection
244(2) applies.
(2) Subject to subsection (3), ASIC must take such steps as are
reasonable in the circumstances to give to each person whose interests are
affected by the decision notice, in writing or otherwise:
(a) of the making of the decision; and
(b) of the person’s right to have the decision reviewed by the
Administrative Appeals Tribunal.
(3) Subsection (2) does not require ASIC to give notice to a person
affected by the decision, or to the persons in a class of persons affected by
the decision, if ASIC determines that giving notice to the person or persons is
not warranted, having regard to:
(a) the cost of giving notice to the person or persons; and
(b) the way in which the interests of the person or persons are affected
by the decision.
(4) A failure to comply with this section does not affect the validity of
the decision.
(5) The fact that a person has not been given notice of the decision
because of a determination under subsection (3) constitutes special
circumstances for the purposes of subsection 29(6) of the Administrative
Appeals Tribunal Act 1975.
Nothing done by or in relation to a person who has been appointed to, or
appointed to act in, an office under this Act is invalid on the ground
that:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had
ceased.
None of the following:
(aa) the Minister;
(a) ASIC;
(b) CASAC;
(c) a member of ASIC;
(d) a member of CASAC;
(e) a member of the Panel;
(f) a person appointed for the purposes of this Act or a prescribed law of
the Commonwealth, a State or a Territory;
(g) a staff member or a person who is, or is a member of, an ASIC delegate
or is authorised to perform or exercise a function or power of, or on behalf of,
ASIC;
(h) a member of the staff referred to in subsection 156(1), a person
employed under subsection 156(3), a person engaged under subsection 157(1) or
any of the officers, employees and persons who under section 158 are to
assist CASAC;
is liable to an action or other proceeding for damages for or in relation
to an act done or omitted in good faith in performance or purported performance
of any function, or in exercise or purported exercise of any power, conferred or
expressed to be conferred by or under the corporations legislation, or a
prescribed law of the Commonwealth, a State or a Territory.
(1) As well as ASIC’s common seal, there are to be such duplicates
of that seal as ASIC directs.
(2) A document to which a duplicate seal of ASIC is affixed is taken to
have ASIC’s common seal affixed to it.
(1) A court must take judicial notice of ASIC’s common seal affixed
to a document and, unless the contrary is established, must presume that it was
duly affixed.
(2) A court must take judicial notice of:
(a) the official signature of a person who holds or has held, or is acting
or has acted in, the office of member, Chairperson or Deputy Chairperson;
and
(b) the fact that the person holds or has held, or is acting or has acted
in, that office;
if a signature purporting to be the person’s signature appears on an
official document.
(3) In this section:
(a) court includes a tribunal; and
(b) a reference, in relation to a tribunal, to taking judicial notice is a
reference to taking the same notice as would be taken by a court.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) Regulations providing for allowances and expenses for the purposes of
section 89 or subsection 192(6) or 218(4) may provide for those allowances
and expenses by reference to a scale of expenses for witnesses who attend before
a court specified in the regulations, being a federal court, or the Supreme
Court of a State or Territory.
(1) The object of this Part is to provide for a smooth transition from the
regime provided for in the old ASIC legislation of the States in this
jurisdiction and the Northern Territory to the regime provided for in the new
ASIC legislation, so that individuals, bodies corporate and other bodies are, to
the greatest extent possible, put in the same position immediately after the
commencement as they would have been if:
(a) that old ASIC legislation had, from time to time when it was in force,
been valid Commonwealth legislation applying throughout the States in this
jurisdiction and the Northern Territory; and
(b) the new ASIC legislation (to the extent it contains provisions that
correspond to provisions of the old ASIC legislation as in force immediately
before the commencement) were a continuation of that old ASIC legislation as so
applying.
Note: The new ASIC legislation contains provisions that
correspond to most of the provisions of the old ASIC legislation. Generally, the
only exceptions to this are provisions of the old ASIC legislation that related
to the fact that the ASIC Law operated separately in each of the States and
Territories (rather than as a single national law).
(2) The object of this Part is also to provide for a smooth transition
from the regime provided for in the old ASIC legislation of the Commonwealth to
the regime provided for in the new ASIC legislation as if the new ASIC
legislation (to the extent it contains provisions that correspond to provisions
of the old ASIC legislation as in force immediately before the commencement)
were a continuation of that old ASIC legislation as so applying.
(3) In resolving any ambiguity as to the meaning of any of the other
provisions of this Part, an interpretation that is consistent with the object of
this Part is to be preferred to an interpretation that is not consistent with
that object.
(1) In this Part:
carried over provision of the old ASIC legislation of the
Commonwealth, a State in this jurisdiction or the Northern Territory means a
provision of that legislation that:
(a) was in force immediately before the commencement; and
(b) corresponds to a provision of the new ASIC legislation.
commencement means the commencement of this Act.
corresponds has a meaning affected by subsections (2),
(3) and (4).
instrument means:
(a) any instrument of a legislative character (including an Act or
regulations) or of an administrative character; or
(b) any other document.
liability includes a duty or obligation.
made includes issued, given or published.
new ASIC legislation means:
(a) this Act; and
(b) the new ASIC Regulations (as amended and in force from time to time)
and any other regulations made under this Act; and
(c) the laws of the Commonwealth referred to in subparagraphs (a)(ii)
and (b)(iii) of the definition of old ASIC legislation, being
those laws as they apply after the commencement; and
(d) the preserved instruments.
new ASIC Regulations means the regulations that, because of
section 264, have effect as if they were made under section 251 of
this Act.
old application Act for a State or the Northern Territory
means:
(a) in the case of New South Wales—the Corporations (New South
Wales) Act 1990 of New South Wales as in force from time to time before the
commencement; or
(b) in the case of Victoria—the Corporations (Victoria) Act
1990 of Victoria as in force from time to time before the commencement;
or
(c) in the case of Queensland—the Corporations (Queensland) Act
1990 of Queensland as in force from time to time before the commencement;
or
(d) in the case of Western Australia—the Corporations (Western
Australia) Act 1990 of Western Australia as in force from time to time
before the commencement; or
(e) in the case of South Australia—the Corporations (South
Australia) Act 1990 of South Australia as in force from time to time before
the commencement; or
(f) in the case of Tasmania—the Corporations (Tasmania) Act
1990 of Tasmania as in force from time to time before the commencement;
or
(g) in the case of the Northern Territory—the Corporations
(Northern Territory) Act 1990 of the Northern Territory as in force from
time to time before the commencement.
old ASIC Act means the Australian Securities and
Investments Commission Act 1989 as in force from time to time before the
commencement.
old ASIC Law of a State in this jurisdiction or the Northern
Territory means the ASIC Law or ASC Law of the State or Territory (within the
meaning of the application Act of the State or Territory as in force from time
to time before the commencement).
old ASIC legislation means:
(a) when used in relation to the Commonwealth—the
following:
(i) the old ASIC Act and old ASIC Regulations, and any instruments made
under that Act or those Regulations (including provisions as they had effect as
the ASIC Law or ASIC Regulations of the Australian Capital Territory);
(ii) the laws of the Commonwealth as applying of their own force in
relation to the old ASIC Act and old ASIC Regulations of the Commonwealth from
time to time before the commencement, and any instruments made under those laws
as so applying; and
(b) when used in relation to a State in this jurisdiction or the Northern
Territory—the following:
(i) the old ASIC Law and old ASIC Regulations of the State or Territory,
and any instruments made under that Law or those Regulations; and
(ii) the old application Act for the State or Territory, and any
instruments made under that Act; and
(iii) the laws of the Commonwealth as they applied in relation to the old
ASIC Law and the old ASIC Regulations of the State or Territory from time to
time before the commencement as laws of, or for the government of, that State or
Territory because of Part 8 of the old Application Act for that State or
Territory, and any instruments made under those laws as so applying.
old ASIC Regulations means:
(a) when used in relation to the Commonwealth—the regulations made
under section 251 or 252 of the old ASIC Act as in force from time to time
before the commencement (including regulations as they had effect as the ASIC
Regulations of the Australian Capital Territory); and
(b) when used in relation to a State in this jurisdiction or the Northern
Territory—the ASIC Regulations or ASC Regulations of that State or
Territory (within the meaning of the old application Act for the State or
Territory) as in force from time to time before the commencement.
order, in relation to a court, includes any judgment,
conviction or sentence of the court.
pre-commencement right or liability has the meaning given by
subsection 276(1) or 277(1).
preserved instrument means an instrument that, because of
section 275, has effect after the commencement as if it were made under a
provision of the new ASIC legislation.
right includes an interest or status.
substituted right or liability has the meaning given by
subsection 276(2) or 277(3).
this Part includes regulations made for the purposes of any
of the provisions of this Part.
(2) Subject to subsection (4), for the purposes of this Part, a
provision or part (the old provision or part) of the old ASIC
legislation of the Commonwealth, a State or the Northern Territory
corresponds to a provision or part (the new provision or
part) of the new ASIC legislation (and vice versa) if:
(a) the old provision or part and the new provision or part are
substantially the same, unless the regulations specify that the 2 provisions or
parts do not correspond; or
(b) the regulations specify that the 2 provisions or parts
correspond.
Note: The range of provisions of the new ASIC legislation
that may be corresponding provisions for the purposes of this Part is affected
by sections 277 and 284, which take certain provisions of the old ASIC
legislation to be included in the new ASIC legislation.
(3) For the purposes of paragraph (2)(a), differences of all or any
of the following kinds are not sufficient to mean that 2 provisions or parts are
not substantially the same:
(a) differences in the numbering of the provisions or parts;
(b) differences of a minor technical nature (for example, differences in
punctuation, or differences that are attributable to the correction of incorrect
cross references);
(c) the fact that one of the provisions refers to a corresponding previous
law, or a relevant previous law, and the other does not;
(d) other differences that are attributable to the fact that the new ASIC
legislation applies as a Commonwealth law throughout Australia;
(e) other differences of a kind prescribed by the regulations for the
purposes of this paragraph.
This subsection is not intended to otherwise limit the circumstances in
which 2 provisions or parts are, for the purposes of paragraph (2)(a),
substantially the same.
(4) The regulations may provide that a specified provision of the old ASIC
legislation of the Commonwealth, a State or the Northern Territory does, or does
not, correspond to a specified provision of the new ASIC legislation.
(1) This Part applies to an invalid administrative action of a
Commonwealth authority or an officer of the Commonwealth (within the meaning of
a State validation Act) as if the circumstances that made the authority’s
or officer’s action an invalid administrative action had not made the
action invalid.
Note: For the status and effect of invalid administrative
actions in relation to times before the commencement, see the State validation
Acts.
(2) However, if there are other circumstances that affect or may affect
the validity of the action, neither this section, nor anything else in this
Part, is taken to negate the effect of those other circumstances.
(3) If:
(a) a person would have had a right or liability under a provision (the
old provision) of the old ASIC legislation of a State if the
circumstances that made the authority’s or officer’s action an
invalid administrative action (within the meaning of the State validation Act)
of that State had not made the action invalid; and
(b) the effect of that State validation Act in relation to that action is
to declare that the person has, and is taken always to have had, the same
rights and liabilities as they would have had under the old provision if the
invalid administrative action had been taken, or purportedly taken, at the
relevant time by a duly authorised State authority or officer of the State
(within the meaning of that Act);
this Part applies as if:
(c) a reference to a right or liability arising under the old ASIC
legislation included a reference to the right or liability that the person is
declared to have by the State validation Act; and
(d) that right or liability arose under the old provision.
(4) In this section:
State validation Act means an Act of a State in this
jurisdiction under which certain administrative actions (within the meaning of
that Act) taken, or purportedly taken, before the commencement by Commonwealth
authorities and officers of the Commonwealth (within the meaning of that Act)
pursuant to functions or powers conferred, or purportedly conferred, by or under
laws that include the old application Act for that State have, and are
deemed always to have had, the same force and effect as they would have had if
they had been taken, or purportedly taken, at the relevant time, by a duly
authorised State authority or officer of the State (within the meaning of that
Act).
If:
(a) a law of a State or Territory in this jurisdiction had effect before
the commencement:
(i) to take or deem something to have happened or to be the case, or to
have a particular effect, under or for the purposes of the old ASIC legislation
(or a provision of that legislation) of the Commonwealth, a State in this
jurisdiction or the Northern Territory; or
(ii) to give something an effect for the purposes of the old ASIC
legislation (or a provision of that legislation) that it would not otherwise
have had; and
(b) that effect was continuing immediately before the
commencement;
this Part applies as if that thing had actually happened or were actually
the case, or as if that thing actually had that other effect.
If, apart from this section, a provision of this Part (the
transitional provision) would, because the Commonwealth, each
State in this jurisdiction and the Northern Territory had its own old ASIC
legislation (containing parallel provisions) before the commencement, operate so
that:
(a) a particular thing done before the commencement would be taken to be
done, or have effect, 2 or more times by, under, or for the purposes of, a
provision of the new ASIC legislation; or
(b) a right or liability would be created 2 or more times in respect of a
particular event, circumstance or thing that happened before the commencement;
or
(c) a particular result or effect would be produced 2 or more times for
the purposes of the new ASIC legislation in relation to the same
matter;
the transitional provision is taken to operate so that:
(d) if paragraph (a) applies—the thing is taken to be done or
have effect only once by, under, or for the purposes of the provision of, the
new ASIC legislation; or
(e) if paragraph (b) applies—the right or liability is created
only once in respect of the event, circumstance or thing; or
(f) if paragraph (c) applies—the result or effect is produced
only once in relation to the matter.
(1) If, because of this Part, an offence can be prosecuted after the
commencement in respect of conduct that occurred before the commencement, the
amount of a penalty unit in respect of that offence is $100.
(2) This section has effect despite section 4AA of the Crimes Act
1914.
If, after the commencement, a State ceases to be a referring State, that
does not undo or affect:
(a) the effects that this Part has already had in relation to matters
connected with that State; or
(b) the ongoing effect of this Act as it operates because of the effects
referred to in paragraph (a).
This Division has effect subject to regulations made for the purposes of
Division 7.
A body that was established under the old ASIC Act continues in existence
as if it had been established under this Act.
(1) A member of the FRC who was Chairman of the FRC immediately before the
commencement continues as if he or she had been appointed as Chair of the FRC
under this Act.
(2) A member of the FRC who was Deputy Chairman of the FRC immediately
before the commencement continues as if he or she had been appointed as Deputy
Chair of the FRC under this Act.
This Division has effect subject to regulations made for the purposes of
Division 7.
The old ASIC Regulations that were made for the purposes of provisions of
the old ASIC Act that correspond to provisions of this Act and that were in
force immediately before the commencement continue to have effect (and may be
dealt with) after the commencement as if:
(a) they were regulations in force under section 251 of this Act;
and
(b) they were made for the purposes of the corresponding provisions of
this Act.
This Division has effect subject to regulations made for the purposes of
Division 7.
(1) In this Division:
appeal or review proceeding, in relation to an order of a
court, means a proceeding by way of appeal, or otherwise seeking review, of the
order.
enforcement proceeding, in relation to an order made by a
court, means:
(a) a proceeding to enforce the order; or
(b) any other proceeding in respect of a breach of the order.
federal ASIC proceeding means a proceeding of any of the
following kinds that, immediately before the commencement, was before a
court:
(a) a proceeding in respect of a matter arising under the
Administrative Decisions (Judicial Review) Act 1977 involving or related
to a decision made under a provision of the old ASIC legislation of the
Commonwealth, a State in this jurisdiction or the Northern Territory;
(b) a proceeding in respect of a matter arising under Division 2 of
Part 2 of the old ASIC Act;
(c) a proceeding for a writ of mandamus or prohibition, or an injunction,
against an officer or officers of the Commonwealth (within the meaning of
section 75 of the Constitution) in relation to a matter to which a
provision of the old ASIC legislation of the Commonwealth, a State in this
jurisdiction or the Northern Territory applied;
(d) a proceeding in the court’s accrued federal jurisdiction in
relation to a matter to which a provision of the old ASIC legislation of the
Commonwealth, a State in this jurisdiction or the Northern Territory
applied.
interlocutory application means an application
that:
(a) is made during the course of a proceeding; and
(b) is for an order that is incidental to the principal object of that
proceeding, including, for example:
(i) an order about the conduct of that proceeding; or
(ii) an order assisting a party to that proceeding to present their case
in that proceeding; or
(iii) an order protecting or otherwise dealing with property that is the
subject matter of that proceeding;
but not including an order making a final determination of existing
rights or liabilities.
interlocutory order means:
(a) an order made in relation to an interlocutory application;
or
(b) an order or direction about the conduct of a proceeding.
interlocutory proceeding means a proceeding:
(a) dealing only with; or
(b) to the extent it deals with;
an interlocutory application.
primary proceeding means a proceeding other than an
interlocutory proceeding.
proceeding means a proceeding, whether criminal or civil,
before a court.
(2) For the purposes of this Part, if an interlocutory proceeding relates
to a proceeding that is itself an interlocutory proceeding, the first-mentioned
proceeding is taken to relate also to the primary proceeding to which the
second-mentioned proceeding relates.
(1) This section applies to a proceeding, other than a federal ASIC
proceeding, in relation to which the following paragraphs are
satisfied:
(a) the proceeding was started in a court before the commencement;
and
(b) the proceeding was:
(i) under a provision of the old ASIC legislation of the Commonwealth, a
State in this jurisdiction or the Northern Territory; or
(ii) brought as, or connected with, a prosecution for an offence against a
provision of the old ASIC legislation of the Commonwealth, a State in this
jurisdiction or the Northern Territory; and
(c) the proceeding was not an enforcement proceeding, or an appeal or
review proceeding, in relation to an order of a court; and
(d) the proceeding had not been concluded or terminated before the
commencement; and
(e) either:
(i) if the proceeding is a primary proceeding—no final determination
of any of the existing rights or liabilities at issue in the proceeding had been
made before the commencement; or
(ii) if the proceeding is an interlocutory proceeding—this section
applies to the primary proceeding to which the interlocutory proceeding
relates.
(2) In this section:
(a) the proceeding to which this section applies is called the old
proceeding; and
(b) the provision of the old ASIC legislation referred to in whichever of
subparagraphs (1)(b)(i) and (ii) applies is called the relevant old
provision.
(3) A proceeding (the new proceeding) equivalent to the old
proceeding is, on the commencement, taken to have been brought in the same
court, exercising federal jurisdiction:
(a) if subparagraph (1)(b)(i) applies—under the provision of
the new ASIC legislation that corresponds to the relevant old provision;
or
(b) if subparagraph (1)(b)(ii) applies—as, or connected with, a
prosecution for an offence against the provision of the new ASIC legislation
that corresponds to the relevant old provision.
To the extent that the old proceeding, before the commencement, related to
pre-commencement rights or liabilities, the new proceeding relates to the
substituted rights and liabilities in relation to those pre-commencement rights
and liabilities.
Note 1: See sections 276 and 277 for the creation of
the substituted rights and liabilities.
Note 2: In all cases, there will be a provision of the new
ASIC legislation that corresponds to the relevant old provision, either
because:
(a) the new ASIC legislation actually contains a provision
that corresponds to the relevant old provision; or
(b) the new ASIC legislation, because of section 277 or
284, is taken to include the relevant old provision (whether with or without
modifications), in which case the provision so taken to be included will be the
corresponding provision.
(4) The following provisions apply in relation to the new
proceeding:
(a) the parties to the new proceeding are the same as the parties to the
old proceeding;
(b) subject to subsections (5) and (6), and to any order to the
contrary made by the court, the court must deal with the continued proceeding as
if the steps that had been taken for the purposes of the old proceeding before
the commencement had been taken for the purposes of the new
proceeding.
(5) If:
(a) an interlocutory order was made before the commencement for the
purpose of, or in relation to, the old proceeding; and
(b) that interlocutory order was in force immediately before the
commencement;
the rights and liabilities of all persons (including rights and liabilities
arising wholly or partly because of conduct occurring before the commencement)
are declared to be, for all purposes, the same as if the interlocutory order had
instead been made by the same court, in the exercise of federal jurisdiction,
for the purpose of, or in relation to, the new proceeding.
(6) The court may make orders doing all or any of the following:
(a) cancelling or varying rights or liabilities that a person has because
of subsection (5);
(b) substituting other rights or liabilities for rights or liabilities a
person has because of subsection (5);
(c) adding rights or liabilities to the rights or liabilities a person has
because of subsection (5);
(d) enforcing, or otherwise dealing with conduct contrary to, a right or
liability a person has because of subsection (5) in the same way as it
could enforce, or deal with, the right, liability or conduct if the right or
liability had arisen under or because of an order made by the court in the
exercise of federal jurisdiction under the new ASIC legislation.
(1) This section applies to a proceeding in relation to which the
following paragraphs are satisfied:
(a) the proceeding was started in a court before the commencement;
and
(b) the proceeding was a federal ASIC proceeding that related to a matter
to which a provision of the old ASIC legislation of the Commonwealth, a State in
this jurisdiction or the Northern Territory applied; and
(c) the proceeding had not been concluded or terminated before the
commencement.
(2) In this section:
(a) the proceeding to which this section applies is called the
continued proceeding; and
(b) the provision of the old ASIC legislation referred to in
paragraph (1)(b) is called the relevant old
provision.
(3) Subject to subsection (4):
(a) the continued proceeding continues after the commencement in the same
court as if it were, and always had been, a proceeding in relation to a matter
to which the provision of the new ASIC legislation that corresponds to the
relevant old provision applies; and
(b) to the extent that the proceeding, before the commencement, related to
pre-commencement rights or liabilities, the proceeding, as continued, relates,
and is taken always to have related, to the substituted rights and liabilities
in relation to those pre-commencement rights and liabilities.
Note 1: See sections 276 and 277 for the creation of
substituted rights and liabilities.
Note 2: In all cases, there will be a provision of the new
ASIC legislation that corresponds to the relevant old provision, either
because:
(a) the new ASIC legislation actually contains a provision
that corresponds to the relevant old provision; or
(b) the new ASIC legislation, because of section 277 or
284, is taken to include the relevant old provision (whether with or without
modifications), in which case the provision so taken to be included will be the
corresponding provision.
(4) Subject to any order to the contrary made by the court, the court must
deal with the continued proceeding as if:
(a) the steps that had been taken for the purposes of the proceeding
before the commencement had been taken for the purpose of the proceeding as
continued by this section; and
(b) any orders made in relation to the proceeding before the commencement
had been made in relation to the proceeding as continued by this
section.
(1) Subject to subsection (5), a reference in the new ASIC
legislation to the taking of a proceeding, or a step in a proceeding, in a
court under or in relation to a part or provision of the new ASIC
legislation includes a reference to the taking of a proceeding, or the
equivalent step in a proceeding:
(a) before the commencement under or in relation to the corresponding part
or provision of the old ASIC legislation of the Commonwealth, a State or the
Northern Territory; or
(b) after the commencement under or in relation to the corresponding part
or provision of the old ASIC legislation of the Commonwealth, a State in this
jurisdiction or the Northern Territory, as that legislation continues to have
effect after the commencement.
(2) Subject to subsections (3), (4) and (5), a reference in the new
ASIC legislation to an order made by a court under or in relation to a
part or provision of the new ASIC legislation includes a reference to an order
made:
(a) before the commencement under or in relation to the corresponding part
or provision of the old ASIC legislation of the Commonwealth, a State or the
Northern Territory; or
(b) after the commencement under or in relation to the corresponding part
or provision of the old ASIC legislation of the Commonwealth, a State in this
jurisdiction or the Northern Territory, as that legislation continues to have
effect after the commencement.
(3) Nothing in subsection (2) is taken to produce a result that
would:
(a) make a person liable, under the new ASIC legislation, to any penalty
(whether civil or criminal) provided for in an order referred to in
paragraph (2)(a) or (b); or
(b) enable an enforcement proceeding, or an appeal or review proceeding,
in relation to such an order to be taken in a court under the new ASIC
legislation; or
(c) enable proceedings by way of appeal, or other review, of such an order
to be taken in a court under the new ASIC legislation.
(4) If, after the commencement, an order referred to in
paragraph (2)(a) or (b) is varied or set aside on appeal or review,
subsection (2) applies, or is taken to have applied, from the time from
which the variation or setting aside takes or took effect, as if:
(a) if the order is varied—the order had been made as so varied;
or
(b) if the order is set aside—the order had not been made.
(5) The regulations may provide that subsection (1) or (2) does not
apply in relation to a particular reference or class of references in the new
ASIC legislation.
This Division has effect subject to regulations made for the purposes of
Division 7.
(1) ASIC has the functions and powers in relation to a non-federal
proceeding that are expressed to be conferred on it by or under a law of the
Commonwealth or the Northern Territory.
(2) ASIC also has the functions and powers in relation to a non-federal
proceeding that are expressed to be conferred on it by or under a law of a State
in this jurisdiction. However, ASIC:
(a) is not subject to any directions in the performance of such functions
or the exercise of such powers; and
(b) is not under a duty to perform such functions or exercise such
powers.
(3) If a Minister of a State or Territory appoints a person to bring or
continue a non-federal proceeding in the State or Territory, ASIC may give the
person any information and documents that ASIC has in relation to the
proceeding.
(4) In this section:
appeal or review proceeding has the same meaning as in
section 266.
enforcement proceeding has the same meaning as in
section 266.
non-federal proceeding means:
(a) a proceeding in relation to which paragraphs 267(1)(a), (b) and (d)
are satisfied but paragraph 267(1)(e) is not satisfied; or
(b) an enforcement proceeding, or an appeal or review proceeding, in
relation to an order of a court made before the commencement in relation to a
proceeding that was:
(i) under a provision of the old ASIC legislation of the Commonwealth, a
State in this jurisdiction or the Northern Territory; or
(ii) brought as, or connected with, a prosecution for an offence against a
provision of the old ASIC legislation of the Commonwealth, a State in this
jurisdiction or the Northern Territory; or
(c) an enforcement proceeding, or an appeal or review proceeding, in
relation to an order of a court made after the commencement in relation to a
proceeding referred to in paragraph (a).
(1) ASIC has the functions and powers expressed to be conferred on the
NCSC by or under any Act, as in force immediately before the commencement, that
is a relevant Act for the purposes of the Companies and Securities
(Interpretation and Miscellaneous Provisions) Act 1980.
(2) ASIC also has the functions and powers expressed to be conferred on
the NCSC by or under any law, as in force immediately before the commencement,
of a State or the Northern Territory that corresponds to an Act that is a
relevant Act for the purposes of the Companies and Securities (Interpretation
and Miscellaneous Provisions) Act 1980. However, ASIC:
(a) is not subject to any directions in the performance of such functions
or the exercise of such powers; and
(b) is not under a duty to perform such functions or exercise such
powers.
(1) This Division has effect subject to:
(a) the provisions of Divisions 2, 3, 4 and 5 (which deal with
matters in more specific terms); and
(b) regulations made for the purposes of Division 7.
(2) Nothing in this Division applies to:
(a) an order made by a court before the commencement; or
(b) a right or liability under an order made by a court before the
commencement; or
(c) a right to:
(i) appeal to a court against an order made by a court before the
commencement; or
(ii) apply to a court for review of such an order; or
(iii) bring an appeal or review proceeding, or an enforcement proceeding,
within the meaning of section 266, in respect of such an order;
or
(d) a proceeding taken (including an appeal, review or enforcement
proceeding) in a court before the commencement, or a step in such a
proceeding.
Note: Division 4 deals with court orders and
proceedings made or begun before the commencement, and with related
matters.
(3) Except as mentioned in subsections (1) and (2), nothing in
Division 2, 3, 4 or 5, or in regulations made for the purposes of
Division 7, is intended to limit the generality of the provisions in
this Division.
The provisions of this Division deal at a broad level with concepts and
matters in a way that is intended to achieve the object of this Part as set out
in section 253. Some of the provisions of this Division will (depending on
the situation) have an effect that overlaps or interacts to some extent with the
effect of other provisions of this Division. This is intended, and the
provisions of this Division should be not be regarded as dealing with mutually
exclusive situations.
(1) Subject to this section, a thing that:
(a) was done before the commencement by, under, or for the purposes of, a
carried over provision of the old ASIC legislation of the Commonwealth, a State
in this jurisdiction or the Northern Territory; and
(b) had an ongoing significance (see subsections (4) and (5))
immediately before the commencement for the purposes of that
legislation;
has effect (and may be dealt with) after the commencement, for the purposes
of the new ASIC legislation, as if it were done by, under, or for the purposes
of, the corresponding provision of the new ASIC legislation.
Note: This section covers all kinds of things done,
including things of a coercive nature or done for coercive
purposes.
(2) Examples of things done include:
(a) the making of an instrument or order (but not including the making of
an order by a court); and
(b) the making of an application or claim (but not including the making of
an application or claim to a court); and
(c) the granting of an application or claim (but not including the
granting of an application or claim by a court); and
(d) the making of an appointment or delegation; and
(e) the commencement of a procedure or the taking of a step in a procedure
(including an investigation, but not including the commencement of a proceeding
in a court); and
(f) the making of an agreement; and
(g) requiring a person to do, or not to do, something (but not including a
requirement contained in an order made by a court); and
(h) the giving of a notice or document.
(3) The examples in subsection (2) are not intended to limit the
generality of the language of subsection (1).
(4) Subject to subsection (5), for the purposes of this section, a
thing done by, under, or for the purposes of, a carried over provision of the
old ASIC legislation of the Commonwealth, a State or the Northern Territory had
an ongoing significance immediately before the commencement
for the purposes of that legislation if:
(a) if the thing done was the making of an instrument or order—the
instrument or order was still in force immediately before the commencement;
or
(b) if the thing done was the making of an application or claim—the
application or claim had not been decided, and had not otherwise ceased to have
effect, before the commencement; or
(c) if the thing done was the granting of an application or
claim—the thing granted had not been revoked, and had not otherwise ceased
to have effect, before the commencement; or
(d) if the thing done was the making of an appointment or
delegation—the appointment or delegation had not been revoked, and had not
otherwise ceased to have effect, before the commencement; or
(e) if the thing done was the commencement of a procedure or the taking of
a step in a procedure—the procedure was still in progress immediately
before the commencement or was otherwise still having an effect; or
(f) if the thing done was the making of an agreement—the agreement
was still in force immediately before the commencement; or
(g) if the thing done was requiring a person to do, or not to do
something—the requirement was still in force immediately before the
commencement; or
(h) if the thing done was the giving of a notice or document, or the doing
of some other thing—the notice or document (or the giving of the notice or
document), or the thing (or the doing of the thing), had an ongoing effect or
significance immediately before the commencement for the purposes of the old
ASIC legislation of the Commonwealth, the State or the Northern
Territory.
(5) The regulations may provide that a specified thing done by, under, or
for the purposes of, a carried over provision of the old ASIC legislation of the
Commonwealth, a State in this jurisdiction or the Northern Territory did, or did
not, have an ongoing significance immediately before the commencement for the
purposes of that legislation.
(1) This section applies in relation to a right or liability (the
pre-commencement right or liability), whether civil or criminal,
that:
(a) was acquired, accrued or incurred under a carried over provision of
the old ASIC legislation of the Commonwealth, a State in this jurisdiction or
the Northern Territory; and
(b) was in existence immediately before the commencement.
However, this section does not apply to a right or liability under an order
made by a court before the commencement.
(2) On the commencement, the person acquires, accrues or incurs a right or
liability (the substituted right or liability), equivalent to the
pre-commencement liability, under the corresponding provision of the new ASIC
legislation (as if that provision applied to the conduct or circumstances that
gave rise to the pre-commencement right or liability.
Note: If a time limit applied in relation to the
pre-commencement right or liability under the old ASIC legislation, that same
time limit (calculated from the same starting point) will apply under the new
ASIC legislation to the substituted right or liability—see subsection
278(3).
(3) A procedure, proceeding or remedy in respect of the right or liability
may be instituted after the commencement under the new ASIC legislation (as if
that provision applied to the conduct or circumstances that gave rise to the
pre-commencement right or liability).
Note: For pre-commencement proceedings in respect of
substituted rights and liabilities, see sections 267 and
268.
(1) This section applies to a right or liability (the
pre-commencement right or liability), whether civil or criminal,
that:
(a) was acquired, accrued or incurred under a provision of the old ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern
Territory that was no longer in force immediately before the commencement;
and
(b) was in existence immediately before the commencement.
However, this section does not apply to a right or liability under an order
made by a court before the commencement.
(2) For the purposes of subsections (3) and (4), the new ASIC
legislation is taken to include:
(a) the provision of the old ASIC legislation (with such modifications (if
any) as are necessary) under which the right or liability was acquired, accrued
or incurred; and
(b) the other provisions of the old ASIC legislation (with such
modifications (if any) as are necessary) that applied in relation to the right
or liability.
(3) On the commencement, the person acquires, accrues or incurs a right or
liability (the substituted right or liability), equivalent to the
pre-commencement right or liability, under the provision taken to be
included in the new ASIC legislation by paragraph (2)(a) (as if that
provision applied to the conduct or circumstances that gave rise to the
pre-commencement right or liability).
Note: If a time limit applied in relation to the
pre-commencement right or liability under the old ASIC legislation, that same
time limit (calculated from the same starting point) will apply under the new
ASIC legislation to the substituted right or liability—see subsection
278(3).
(4) A procedure, proceeding or remedy in respect of the right or liability
may be instituted after the commencement under the provisions taken to be
included in the new ASIC legislation by subsection (2) (as if those
provisions applied to the conduct or circumstances that gave rise to the
pre-commencement right or liability).
Note: For pre-commencement proceedings in respect of
substituted rights and liabilities, see sections 267 and
268.
(1) An old ASIC legislation time limit (see
subsection (4)):
(a) the starting point of which:
(i) was known or had been determined before the commencement (whether that
starting point occurred or would occur before, on or after the commencement);
or
(ii) would have become known, or have been determined, after the
commencement if the old ASIC legislation had continued to apply (whether that
starting point would have occurred before, on or after the commencement);
and
(b) that had not ended at or before the commencement;
continues to run, or starts or started to run, as if that same time limit
(starting from the same starting point) were applicable under the new ASIC
legislation.
(2) If:
(a) under the old ASIC legislation, a process, a status of a person or
body, or an instrument, commenced from a particular time before the
commencement; and
(b) that process, status or instrument is continued after the commencement
for the purposes of the new ASIC legislation by a provision of this
Part;
that process, status or instrument as so continued is still taken to have
commenced from the time referred to in paragraph (a).
(3) If an old ASIC legislation time limit related to a pre-commencement
right or liability, the same time limit applies in relation to the substituted
right or liability.
(4) In this section:
old ASIC legislation time limit includes:
(a) a period for the doing of a thing specified or determined under a
provision of the old ASIC legislation of the Commonwealth, a State in this
jurisdiction or the Northern Territory; or
(b) a period specified or determined under a provision of the old ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern
Territory as the duration of a particular instrument or status.
(1) An event, circumstance or other thing:
(a) that occurred or arose before the commencement under or as mentioned
in a provision of the old ASIC legislation of the Commonwealth, a State in this
jurisdiction or the Northern Territory; and
(b) that had a particular significance, status or effect for the purposes
of a carried over provision of that legislation (including because of an
interpretative provision);
has that same significance after the commencement for the purposes of the
provision of the new ASIC legislation that corresponds to that carried over
provision.
(2) Without limiting subsection (1), an event, circumstance or other
thing has a particular significance for the purposes of a carried over provision
of the old ASIC legislation of the Commonwealth, a State in this jurisdiction or
the Northern Territory if:
(a) the carried over provision creates an obligation in respect of the
event, circumstance or thing (whenever it arose); or
(b) the carried over provision provides for the event, circumstance or
thing to be dealt with in a particular way; or
(c) the carried over provision states that the event, circumstance or
thing (whenever it arose) is to be disregarded for the purposes of that
provision or not covered by that provision.
(1) Subject to this section, a reference in the new ASIC legislation to an
event, circumstance or thing of a particular kind that happens or arises, or
that has happened or arisen, is taken to include a reference to an event,
circumstance or thing of that kind that happened or arose at a time before the
commencement, unless the contrary intention appears. The fact that the provision
uses only the present tense in referring to an event, circumstance or thing is
not, of itself, to be regarded as an expression of a contrary
intention.
(2) Nothing in subsection (1) is taken to produce a result that a
right or liability exists under a provision of the new ASIC legislation that
relates solely to events, circumstances or things that occurred before the
commencement.
Note: Instead, an equivalent right or liability will be
created by section 276 or 277.
(3) The regulations may provide that subsection (1) does not apply in
relation to a particular reference or class of references in the new ASIC
legislation.
(1) Subject to subsection (4), a reference in the new ASIC
legislation to:
(a) an Act, or to regulations or another instrument that is part of the
new ASIC legislation; or
(b) a provision or group of provisions of such an Act, regulations or
other instrument;
is taken, in relation to events, circumstances or things that happened or
arose at a time before the commencement when the old ASIC legislation was in
force, to include (in the absence of an express provision to the contrary) a
reference to the corresponding part, provision or provisions of the old ASIC
legislation of the Commonwealth, a State in this jurisdiction or the Northern
Territory.
(2) Subject to subsection (4), a reference in the new ASIC
legislation to:
(a) an Act, or to regulations or some other instrument that is part of the
new corporations legislation; or
(b) a provision or group of provisions of such an Act, regulations or
other instrument;
is taken, in relation to events, circumstances or things that happened or
arose at a time before the commencement when the old corporations legislation
was in force, to include (in the absence of an express provision to the
contrary) a reference to the corresponding part, provision or provisions of the
old corporations legislation of the States and Territories in this
jurisdiction.
(3) In subsection (2):
(a) new corporations legislation and old corporations
legislation have the same meanings as they have in Part 10.1
of the Corporations Act; and
(b) the question whether a provision or part of the old corporations
legislation corresponds to a provision of part of the new corporations
legislation is to be determined in the same way as it is determined for the
purposes of Part 10.1 of the Corporations Act.
(4) The regulations may provide that subsection (1) or (2) does not
apply in relation to a particular reference or class of references in the new
ASIC legislation.
(1) If a carried over provision of the old ASIC legislation of the
Commonwealth, a State in this jurisdiction or the Northern Territory contained a
reference (whether in its own terms or by operation of another provision)
to:
(a) a corresponding previous law (as defined for the purposes of that
provision or provisions including that provision), or a thing done by, under, or
for the purposes of, such a law; or
(b) a relevant previous law (as defined for the purposes of that provision
or provisions including that provision), or a thing done by, under, or for the
purposes of, such a law;
the corresponding provision of the new ASIC legislation is taken to contain
an equivalent reference to that previous law, or to such a thing done by, under,
or for the purposes of, that previous law.
(2) The following references in the old ASIC legislation of the
Commonwealth, a State in this jurisdiction or the Northern Territory are covered
by subsection (1) in the same way as they would be if they used the
“corresponding previous law” form of words:
(a) the reference in section 15 to a “previous law
corresponding to”;
(b) any other references prescribed by the regulations for the purposes of
this subsection.
(1) Subject to subsection (2), a reference in, or taken immediately
before the commencement to be in, an instrument, other than:
(a) an Act of a State, the Australian Capital Territory, the Northern
Territory or Norfolk Island; or
(b) an instrument made under such an Act;
to:
(c) an Act, or to regulations or some other instrument, that is part of
the old ASIC legislation (whether the reference is in general terms or in
relation to the Commonwealth, or a particular State or Territory in this
jurisdiction); or
(d) to a provision or group of provisions of such an Act, regulations or
other instrument;
is taken, after the commencement, to include a reference to the
corresponding part, provision or provisions of the new ASIC legislation (unless
there is no such corresponding part, provision or provisions).
Note: In this Part, instrument means an
instrument of a legislative or administrative character (see the definition in
section 254), or any other document.
(2) The regulations may do either or both of the following:
(a) provide that subsection (1) does not apply in relation to
prescribed references in prescribed instruments;
(b) provide that subsection (1) has effect in relation to prescribed
references in prescribed instruments as if, in that subsection, the words
“to be” were substituted for the words “to
include”.
(1) Subject to subsection (3), this Act has the same effect, after
the commencement, as it would have if:
(a) the transitional provisions (see subsections (6) and (7)) of the
old ASIC Act, the old ASIC Law of the States in this jurisdiction and the old
ASIC Law of the Northern Territory (as in force from time to time before the
commencement) had been part of this Act; and
(b) those transitional provisions produced the same results or effects
(to the greatest extent possible) for the purposes of this Act as they
produced for the purposes of that Act and those Laws.
(2) Without limiting subsection (1) (but subject to
subsection (3)), if a transitional provision of the old ASIC Act, the old
ASIC Law of the States in this jurisdiction or the old ASIC Law of the Northern
Territory could, if it had continued in force after the commencement, have
operated to give rise to rights and liabilities (including civil or criminal
liabilities) in relation to acts or omissions occurring after the commencement,
this Act is taken to include that transitional provision (with such
modifications (if any) as are necessary).
Note: In relation to acts or omissions that occurred before
the commencement, equivalent rights or liabilities are created by
sections 276 and 277.
(3) The regulations may determine how a matter dealt with in a
transitional provision of the old ASIC Act, the old ASIC Law of the States in
this jurisdiction or the old ASIC Law of the Northern Territory is to be dealt
with under or in relation to the new ASIC legislation (including by creating
offences). The regulations have effect despite subsections (1) and (2), but
subject to subsection (5).
Note: In creating offences, the regulations are subject to
the limitation imposed by section 258.
(4) For the purpose of determining whether the new ASIC legislation
includes a provision that corresponds to a provision of the old ASIC legislation
of the Commonwealth, a State in this jurisdiction or the Northern Territory, and
for the purpose of any reference in this Part to a corresponding provision of
the new ASIC legislation, this Act is taken to include the transitional
provisions of the old ASIC legislation of the Commonwealth, a State in this
jurisdiction or the Northern Territory, as they have effect because of
subsections (1) and (2).
(5) Nothing in subsection (1) or (2), or in regulations made for the
purposes of subsection (3), is taken to produce a result that a right or
liability exists under a transitional provision as it has effect because of
subsection (1) or (2), or exists under regulations made for the purposes of
subsection (3), that relates solely to events, circumstances or things that
occurred before the commencement.
Note: Instead, an equivalent right or liability will be
created by section 276 or 277.
(6) Subject to subsection (7), for the purposes of this section, a
transitional provision is any of the following provisions of the
old ASIC Act, the old ASIC Law of the States in this jurisdiction and the old
ASIC Law of the Northern Territory:
(a) section 12AB;
(b) subsection 12GL(2);
(c) section 12IA;
(d) subsection 13(3);
(e) subsection 13(5);
(f) section 14A;
(g) subsection 51(2);
(h) subsection 68(4);
(i) subsection 68(5);
(j) section 122A;
(k) section 127A;
(l) subsection 246(2);
(m) Part 16;
(n) Part 17;
(o) Part 18.
(7) The regulations may provide that certain provisions are to be taken to
be included in, or omitted from, the list in subsection (6). The list then
has effect as if the provisions were so included in it or omitted from
it.
(1) The regulations may deal with matters of a transitional nature
relating to the transition from the application of provisions of the old ASIC
legislation of the Commonwealth, a State in this jurisdiction and the Northern
Territory to the application of provisions of the new ASIC legislation. The
regulations have effect despite anything else in this Part, other than
section 258.
(2) Without limiting subsection (1), the regulations may provide for
a matter to be dealt with, wholly or partly, in any of the following
ways:
(a) by applying (with or without modifications) to the matter:
(i) provisions of the old ASIC legislation, as in force immediately before
the commencement or at some earlier time; or
(ii) provisions of the new ASIC legislation; or
(iii) a combination of provisions referred to in subparagraphs (i)
and (ii);
(b) by otherwise specifying rules for dealing with the matter;
(c) by specifying a particular consequence of the matter, or of an outcome
of the matter, for the purposes of the new ASIC legislation.
(3) The regulations may provide that certain provisions of this Part are
taken to be modified as set out in the regulations. The provisions then have
effect as if they were so modified.
(4) Despite subsection 48(2) of the Acts Interpretation Act 1901,
regulations for the purposes of this section may be expressed to take effect
from a date before the regulations are notified in the Gazette.
(5) In this section:
matters of a transitional nature also includes matters of an
application or saving nature.