CORPORATIONS AMENDMENT (NO. 1) BILL 2010

i Corporations Amendment (No. 1) Bill 2010 No. , 2010

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Amendments

Australian Securities and Investments Commission Act 2001

Corporations Act 2001

Telecommunications (Interception and Access) Act 1979

Corporations Amendment (No. 1) Bill 2010 No. , 2010 1

A Bill for an Act to amend the law relating to

corporations, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Corporations

Amendment (No. 1) Act 2010.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Corporations Amendment (No. 1) Bill 2010 No. , 2010

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments Schedule 1

Corporations Amendment (No. 1) Bill 2010 No. , 2010 3

Schedule 1--Amendments

Australian Securities and Investments Commission Act 2001

1 Subsection 35(1)

Repeal the subsection, substitute:

(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 whose production could be

required under this Division, he or she may:

(a) lay before a magistrate an information on oath or affirmation

setting out those grounds; and

(b) apply for the issue of a warrant to search the premises for

those books.

Note:

The heading to section 35 is altered by omitting "not produced".

2 Subsection 36(1)

Repeal the subsection, substitute:

(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 whose production could be required

under this Division.

3 After section 36

Insert:

36A Execution of warrant

(1) Before any person enters premises under a search warrant issued

under section 36, a member of the Australian Federal Police must:

(a) announce that the member is authorised to enter the premises;

and

(b) give any person at the premises an opportunity to allow entry

to the premises.

(2) However, the member of the Australian Federal Police is not

required to comply with subsection (1) if he or she believes on

Schedule 1 Amendments

4 Corporations Amendment (No. 1) Bill 2010 No. , 2010

reasonable grounds that immediate entry to the premises is

required to ensure that the effective execution of the warrant is not

frustrated.

(3) If the occupier of the premises is present at the premises:

(a) the member of the Australian Federal Police must make

available to the occupier a copy of the warrant; and

(b) the occupier is entitled to observe the search being

conducted.

(4) The occupier's right to observe the search being conducted ends if

the occupier impedes the search.

(5) This section does not prevent 2 or more areas of the premises being

searched at the same time.

(6) If books are seized under the warrant, the member of the Australian

Federal Police or a person assisting the member must provide a

receipt for the books.

(7) If 2 or more books are seized, they may be covered in the one

receipt.

Corporations Act 2001

4 Subsection 173(1)

Omit "a hard copy of the information on the register", substitute "the

5 Subsection 173(1A)

Repeal the subsection.

6 Paragraph 173(3)(a)

Repeal the paragraph, substitute:

(a) makes an application to the company or registered scheme in

accordance with subsection (3A); and

7 Subsection 173(3)

Amendments Schedule 1

Corporations Amendment (No. 1) Bill 2010 No. , 2010 5

Omit "and the person asks for the data on floppy disk, the company or

scheme must give the data to the person on floppy disk. The data must

be readable but the floppy disk need not be formatted for the person's

preferred operating system", substitute ", the company or registered

scheme must give the copy to the person in the prescribed form".

8 After subsection 173(3)

Insert:

(3A) An application is in accordance with this subsection if:

(a) the application states each purpose for which the person is

accessing the copy; and

(b) none of those purposes is a prescribed purpose; and

Note:

Sections 137.1 and 137.2 of the Criminal Code create offences for

providing false or misleading information or documents.

9 After subsection 177(1)

Insert:

(1AA) A person must not:

(a) use information obtained from a copy of a register kept under

this Chapter for any purpose prescribed by regulations made

for the purposes of paragraph 173(3A)(b); or

(b) disclose information of that kind knowing that the

information is likely to be used for any such purpose.

10 Subsections 177(1B), (2) and (3)

After "subsection (1)", insert "or (1AA)".

11 Section 761A

Insert:

annual turnover, of a body corporate during a 12-month period,

means the sum of the values of all the supplies that the body

corporate, and any body corporate related to the body corporate,

have made, or are likely to make, during the 12-month period,

other than:

(a) supplies made from any of those bodies corporate to any

other of those bodies corporate; or

Schedule 1 Amendments

6 Corporations Amendment (No. 1) Bill 2010 No. , 2010

(b) supplies that are input taxed; or

supplies under section 72-5 of the A New Tax System (Goods

and Services Tax) Act 1999); or

(d) supplies that are not made in connection with an enterprise

that the body corporate carries on; or

(e) supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New

Tax System (Goods and Services Tax) Act 1999 have the same

meaning as in that Act.

12 Subsection 1019G(1)

Repeal the subsection, substitute:

(1) An offer to which this Division applies:

(a) must remain open for at least 1 month after the date of offer;

and

(b) cannot remain open for more than 12 months after the date of

offer.

13 Paragraph 1019K(1)(b)

Omit "subsection 1019G(1)", substitute "paragraph 1019G(1)(b)".

14 Paragraph 1021P(3)(c)

Repeal the paragraph, substitute:

(i) the offer does not remain open for the period required in

paragraph 1019G(1)(a);

(ii) the offer remains open for longer than is permitted by

paragraph 1019G(1)(b);

(iii) in purporting to withdraw the offer, the person fails to

comply with a requirement of subsection 1019G(2) or

(3).

15 After subsection 1041B(1)

Insert:

(1A) For the purposes of the application of the Criminal Code in relation

to an offence based on subsection (1):

Amendments Schedule 1

Corporations Amendment (No. 1) Bill 2010 No. , 2010 7

(a) intention is the fault element for the physical element

consisting of doing or omitting to do an act as mentioned in

that subsection; and

(b) recklessness is the fault element for the physical element

consisting of having, or being likely to have, the effect of

creating, or causing the creation of, a false or misleading

appearance as mentioned in that subsection.

Note 1:

For intention, see section 5.2 of the Criminal Code.

Note 2:

For recklessness, see section 5.4 of the Criminal Code.

16 Section 1312

Before "Where", insert "(1)".

17 At the end of Section 1312

Add:

(2) Subsection (1) does not apply in relation to the following

provisions of this Act:

(a)

section

1041A;

(b)

subsection

1041B(1);

(c)

subsection

1041C(1);

(d)

section

1041D;

(e)

subsection

1041E(1);

(f)

subsection

1041F(1);

(g)

subsection

1041G(1);

(h)

subsection

1043A(1);

(i)

subsection

1043A(2).

Note:

The penalties applicable to these provisions in relation to bodies

corporate are set out in the relevant item of the table in Schedule 3.

18 At the end of Chapter 10

Add:

Schedule 1 Amendments

8 Corporations Amendment (No. 1) Bill 2010 No. , 2010

Part 10.16--Transitional provisions relating to the

Corporations Amendment (No. 1) Act 2010

1516 Application of amendments

(1) The amendments made by items 4 to 10 and item 19 of Schedule 1

to the Corporations Amendment (No. 1) Act 2010 apply in relation

to requests made after the commencement of that Schedule to

inspect, or receive a copy of, a register.

(2) The amendments made by items 12 to 14 of that Schedule apply in

relation to offers made after the commencement of that Schedule.

19 Schedule 3 (table item 29)

Repeal the item, substitute:

Subsection 177(1)

50 penalty units.

29AA

Subsection 177(1AA)

50 penalty units.

20 Schedule 3 (table items 309B to 312A)

Repeal the items, substitute:

310 Section

1041A,

subsections 1041B(1),

and 1041C(1),

section 1041D and

subsections 1041E(1),

1041F(1), 1041G(1),

1043A(1) and

1043A(2)

In the case of an individual, imprisonment for

10 years or a fine the greater of the following:

(a) 4,500 penalty units;

(b) if the court can determine the total value of

the benefits that have been obtained by one

or more persons and are reasonably

attributable to the commission of the

offence--3 times that total value;

or both.

In the case of a body corporate, a fine the

greatest of the following:

(a) 45,000 penalty units;

(b) if the court can determine the total value of

the benefits that have been obtained by one

or more persons and are reasonably

attributable to the commission of the

offence--3 times that total value;

of those benefits--10% of the body

corporate's annual turnover during the

Amendments Schedule 1

Corporations Amendment (No. 1) Bill 2010 No. , 2010 9

12-month period ending at the end of the

month in which the body corporate

committed, or began committing, the

offence.

Telecommunications (Interception and Access) Act 1979

21 After subsection 5D(5B)

Insert:

Market misconduct

(5C) An offence is also a serious offence if it is an offence against any

of the following provisions of the Corporations Act 2001:

(a)

section

1041A;

(b)

subsection

1041B(1);

(c)

subsection

1041C(1);

(d)

section

1041D;

(e)

subsection

1041E(1);

(f)

subsection

1041F(1);

(g)

subsection

1041G(1);

(h)

subsection

1043A(1);

(i)

subsection

1043A(2).

22 Application of amendments

The amendments made by item 3 of this Schedule apply in relation to

warrants issued after the commencement of this Schedule.

Commonwealth of Australia Bills

CORPORATIONS AMENDMENT (NO. 1) BILL 2010