Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2010-2011-2012-2013
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Corporations and Financial Sector
Legislation Amendment Bill 2013
No. , 2013
(Treasury)
A Bill for an Act to amend the law relating to
corporations and the financial sector, and for other
purposes
i Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 2
Schedule 1--Amendments
3
Part 1--Payment systems and netting
3
Payment Systems and Netting Act 1998
3
Part 2--Review of licences
6
Corporations Act 2001
6
Part 3--International business regulators
8
Australian Securities and Investments Commission Act 2001
8
Mutual Assistance in Business Regulation Act 1992
9
Part 4--Reporting on ASIC's information gathering powers
11
Australian Securities and Investments Commission Act 2001
11
Part 5--Disclosure of information by the Reserve Bank
12
Reserve Bank Act 1959
12
Part 6--Consequential amendments relating to derivative trade
repositories
14
Carbon Credits (Carbon Farming Initiative) Act 2011
14
Clean Energy Regulator Act 2011
14
Corporations Act 2001
15
Part 7--Other amendments
16
Corporations Act 2001
16
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 1
A Bill for an Act to amend the law relating to
1
corporations and the financial sector, and for other
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Corporations and Financial Sector
6
Legislation Amendment Act 2013.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2 Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
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
The 28th day after this Act receives the
Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Payment systems and netting Part 1
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 3
Schedule 1
--
Amendments
1
Part 1
--
Payment systems and netting
2
Payment Systems and Netting Act 1998
3
1 After paragraph 16(1)(c)
4
Insert:
5
(ca) any security given, in accordance with the contract, in respect
6
of obligations of a party to the contract may be enforced in
7
accordance with the contract;
8
(cb) rights and obligations of a party to the contract may be
9
transferred in accordance with the contract;
10
(cc) without limiting paragraph (cb):
11
(i) property (including property over which security has
12
been given) of a party to the contract may be transferred
13
or otherwise dealt with in accordance with the contract;
14
and
15
(ii) property (including property over which security has
16
been given) of another person on whose behalf a party
17
to the contract is acting may, with that other person's
18
prior written consent, be transferred or otherwise dealt
19
with in accordance with the contract;
20
2 Paragraph 16(1)(d)
21
Omit "paragraph (c) applies", substitute "paragraphs (c), (ca), (cb) and
22
(cc) apply".
23
3 After subparagraph 16(1)(d)(i)
24
Insert:
25
(ia) any disposal of rights or property that may be
26
transferred in accordance with the contract; or
27
4 Subparagraphs 16(1)(d)(ii) and (iii)
28
After "those rights", insert "or that property".
29
5 After paragraph 16(2)(f)
30
Insert:
31
Schedule 1 Amendments
Part 1 Payment systems and netting
4 Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
(fa) any security given by the party, in accordance with the
1
contract, in respect of obligations of a party to the contract
2
may be enforced in accordance with the contract;
3
(fb) rights and obligations of the party may be transferred in
4
accordance with the contract;
5
(fc) without limiting paragraph (fb):
6
(i) property (including property over which security has
7
been given) of the party may be transferred or otherwise
8
dealt with in accordance with the contract; and
9
(ii) property (including property over which security has
10
been given) of another person on whose behalf the party
11
is acting may, with that other person's prior written
12
consent, be transferred or otherwise dealt with in
13
accordance with the contract;
14
6 At the end of paragraph 16(2)(g) (before the note)
15
Add:
16
; (iv) the enforcement of a security in accordance with the
17
contract;
18
(v) a transfer of, or dealing with, rights, obligations or
19
property in accordance with the contract.
20
7 At the end of section 16 (after the note)
21
Add:
22
(4) A reference in this section to things done, or that may be done, in
23
accordance with a contract is taken to include things done, or that
24
may be done, in accordance with any security given in accordance
25
with the contract.
26
8 Application of amendments
27
(1)
In this item:
28
start time means the commencement of this Part.
29
(2)
The amendments made by this Part apply in relation to market netting
30
contracts entered into after the start time, or that are in existence
31
immediately before the start time.
32
(3)
The amendments made by this Part do not apply in relation to an
33
external administration that commenced before the start time.
34
Amendments Schedule 1
Payment systems and netting Part 1
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 5
(4)
The amendments made by this Part apply in relation to the enforcement
1
of a security after the start time, even if the security was given before
2
the start time.
3
(5)
The amendments made by this Part apply in relation to a transfer of, or
4
dealing with, rights, obligations or property after the start time, even if
5
those rights, obligations or property arose or were acquired before the
6
start time.
7
(6)
The amendments made by items 2, 3 and 4 do not apply to disposals of
8
rights or property, or the creation or operation of encumbrances or
9
interests, before the start time.
10
(7)
This item has effect subject to item 9.
11
9 Amended provisions do not have effect to extent they
12
result in an acquisition of property
13
(1)
In this item:
14
acquisition of property has the same meaning as in paragraph 51(xxxi)
15
of the Constitution.
16
just terms has the same meaning as in paragraph 51(xxxi) of the
17
Constitution.
18
(2)
This item applies if, because of an amendment made by this Part, the
19
operation of a provision of the Payment Systems and Netting Act 1998
20
would (but for this item) result in an acquisition of property otherwise
21
than on just terms.
22
(3)
That provision of the Payment Systems and Netting Act 1998 does not
23
apply to the extent that its operation would otherwise so result in that
24
acquisition of property.
25
Schedule 1 Amendments
Part 2 Review of licences
6 Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
Part 2
--
Review of licences
1
Corporations Act 2001
2
10 Section 794C (heading)
3
Repeal the heading, substitute:
4
794C ASIC assessment of licensee's compliance
5
11 Subsection 794C(2)
6
Repeal the subsection, substitute:
7
(2) If the market licensee is prescribed by the regulations for the
8
purpose of this subsection, ASIC must, in respect of the obligation
9
in paragraph 792A(c), do such an assessment at least once a year.
10
12 Section 823C (heading)
11
Repeal the heading, substitute:
12
823C ASIC assessment of licensee's compliance
13
13 Subsection 823C(2)
14
Repeal the subsection, substitute:
15
(2) If the CS facility licensee is prescribed by the regulations for the
16
purpose of this subsection, ASIC must, in respect of the obligation
17
in paragraph 821A(c), do such an assessment at least once a year.
18
14 Section 823CA (heading)
19
Repeal the heading, substitute:
20
823CA Reserve Bank assessment of licensee's compliance
21
15 Subsection 823CA(1)
22
Repeal the subsection, substitute:
23
(1) The Reserve Bank of Australia (the Reserve Bank) may do an
24
assessment of how well a CS facility licensee is complying with its
25
obligation under paragraph 821A(aa). In doing the assessment, the
26
Amendments Schedule 1
Review of licences Part 2
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 7
Reserve Bank may take account of any information and reports that
1
it thinks appropriate, including information and reports from an
2
overseas regulatory authority.
3
(1A) If the CS facility licensee is prescribed by the regulations for the
4
purpose of this subsection, the Reserve Bank must do such an
5
assessment at least once a year.
6
Schedule 1 Amendments
Part 3 International business regulators
8 Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
Part 3
--
International business regulators
1
Australian Securities and Investments Commission Act 2001
2
16 Subsection 5(1)
3
Insert:
4
foreign business law means:
5
(a) a law of a foreign country that regulates, or relates to the
6
regulation of, business or persons engaged in business; or
7
(b) a law, or rules or regulations (however described), that an
8
international business regulator administers or enforces.
9
17 Subsection 5(1)
10
Insert:
11
international business regulator means a body that satisfies the
12
following conditions:
13
(a) the body has functions relating to the regulation, in 2 or more
14
countries, of business, or persons engaged in business;
15
(b) those functions are conferred on the body by:
16
(i) a law or laws in force in those countries; or
17
(ii) a treaty, or other international agreement, to which those
18
countries are parties; or
19
(iii) without limiting subparagraphs (i) and (ii)--a
20
parliament or other body established by or under a
21
treaty, or other international agreement, to which those
22
countries are parties.
23
18 After paragraph 127(4)(ca)
24
Insert:
25
(cb) will enable or assist an international business regulator to
26
perform its functions or exercise its powers; or
27
19 Subsection 127(4)
28
Omit "the agency, government, foreign body or disciplinary body",
29
substitute "the agency, government, officer or body".
30
Amendments Schedule 1
International business regulators Part 3
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 9
20 Subparagraphs 127(4B)(a)(ia) and (4FA)(b)(iii)
1
Omit "the business law of a foreign country", substitute "a foreign
2
business law".
3
21 Subparagraph 243(a)(ii)
4
Repeal the subparagraph, substitute:
5
(ii) the operation of the corporations legislation (other than
6
the excluded provisions); or
7
(iii) the operation of any other law of the Commonwealth, or
8
any law of a State or Territory, that appears to the
9
Parliamentary Committee to affect significantly the
10
operation of the corporations legislation (other than the
11
excluded provisions); or
12
(iv) the operation of any foreign business law, or of any
13
other law of a foreign country, that appears to the
14
Parliamentary Committee to affect significantly the
15
operation of the corporations legislation (other than the
16
excluded provisions); and
17
Mutual Assistance in Business Regulation Act 1992
18
22 Subsection 3(1) (definition of foreign business law)
19
Repeal the definition, substitute:
20
foreign business law means:
21
(a) a business law of a foreign country; or
22
(b) a law, or rules or regulations (however described), that an
23
international business regulator administers or enforces.
24
23 Subsection 3(1) (at the end of the definition of foreign
25
regulator)
26
Add:
27
; or (d) an international business regulator.
28
24 Subsection 3(1)
29
Insert:
30
international business regulator means a body that satisfies the
31
following conditions:
32
Schedule 1 Amendments
Part 3 International business regulators
10 Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
(a) the body has functions relating to the regulation, in 2 or more
1
countries, of business, or persons engaged in business;
2
(b) those functions are conferred on the body by:
3
(i) a law or laws in force in those countries; or
4
(ii) a treaty, or other international agreement, to which those
5
countries are parties; or
6
(iii) without limiting subparagraphs (i) and (ii)--a
7
parliament or other body established by or under a
8
treaty, or other international agreement, to which those
9
countries are parties.
10
Amendments Schedule 1
Reporting on ASIC's information gathering powers Part 4
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 11
Part 4
--Reporting on ASIC's
information gathering
1
powers
2
Australian Securities and Investments Commission Act 2001
3
25 At the end of subsection 136(2)
4
Add:
5
; (k) information required to be included in the report by
6
regulations under subsection (2A).
7
26 After subsection 136(2)
8
Insert:
9
(2A) The regulations may require a report under subsection (1) to
10
include prescribed information relating to the exercise, by ASIC,
11
members of ASIC, or staff members, of prescribed information
12
gathering powers. For this purpose, information gathering powers
13
includes (but is not limited to) powers to require:
14
(a) the provision of information (however described, including
15
by answering questions or giving evidence); or
16
(b) the production of documents; or
17
(c) the provision of assistance.
18
Note:
The information gathering powers that are prescribed may be powers
19
conferred by this Act, or by other laws.
20
Schedule 1 Amendments
Part 5 Disclosure of information by the Reserve Bank
12 Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
Part 5
--
Disclosure of information by the Reserve
1
Bank
2
Reserve Bank Act 1959
3
27 Subsection 79A(1) (paragraph (e) of the definition of
4
officer)
5
After "employment" (wherever occurring), insert "or engagement".
6
28 At the end of paragraph 79A(4)(b)
7
Add "or".
8
29 After paragraph 79A(4)(b)
9
Insert:
10
(c) any other person or body (including a foreign person or
11
body) prescribed by the regulations;
12
30 Subsection 79A(4)
13
Omit all the words from and including "if the person" to and including
14
"its powers", substitute "if the first person is satisfied that disclosure of
15
the information, or the production of the document, will assist that
16
agency or bank, or that other person or body, to perform its functions or
17
exercise its powers".
18
31 After subsection 79A(4)
19
Insert:
20
(5) Subsection (2) does not prohibit a person from disclosing protected
21
information or producing a protected document to a person or body
22
(including a foreign person or body) if the disclosure or production
23
to that person or body is approved in writing by the Governor.
24
(5A) An approval under subsection (5) is not a legislative instrument.
25
(5B) The Governor may, in writing, delegate to the Deputy Governor, or
26
an Assistant Governor of the Reserve Bank, the power to give
27
approvals under subsection (5).
28
Amendments Schedule 1
Disclosure of information by the Reserve Bank Part 5
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 13
32 After subsection 79A(7)
1
Insert:
2
(7A) If a person discloses information or produces a document under
3
this section to another person, the first person may, by notice in
4
writing given to the other person at the time of the disclosure or
5
production, impose conditions to be complied with in relation to
6
the information disclosed or the document produced.
7
(7B) A notice under subsection (7A) is not a legislative instrument.
8
(7C) A person commits an offence if the person fails to comply with a
9
condition imposed under subsection (7A).
10
Penalty: Imprisonment for 2 years.
11
Schedule 1 Amendments
Part 6 Consequential amendments relating to derivative trade repositories
14 Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
Part 6
--
Consequential amendments relating to
1
derivative trade repositories
2
Carbon Credits (Carbon Farming Initiative) Act 2011
3
33 Subparagraph 277(1)(a)(ii)
4
After "Australian CS facility licence", insert "or an Australian
5
derivative trade repository licence, or that operates a prescribed
6
derivative trade repository".
7
34 After paragraph 277(9)(a)
8
Insert:
9
(aa) Australian derivative trade repository licence;
10
35 At the end of subsection 277(9)
11
Add:
12
; (e) prescribed derivative trade repository.
13
Clean Energy Regulator Act 2011
14
36 Subparagraph 50(1)(a)(ii)
15
After "Australian CS facility licence", insert "or an Australian
16
derivative trade repository licence, or that operates a prescribed
17
derivative trade repository".
18
37 After paragraph 50(8)(a)
19
Insert:
20
(aa) Australian derivative trade repository licence;
21
38 At the end of subsection 50(8)
22
Add:
23
; (e) prescribed derivative trade repository.
24
Amendments Schedule 1
Consequential amendments relating to derivative trade repositories Part 6
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 15
Corporations Act 2001
1
39 Section 9
2
Insert:
3
prescribed derivative trade repository, when used in a provision
4
outside Chapter 7, has the same meaning as it has in Chapter 7.
5
Schedule 1 Amendments
Part 7 Other amendments
16 Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
Part 7
--
Other amendments
1
Corporations Act 2001
2
40 Section 1317DA
3
Repeal the section, substitute:
4
1317DA Definitions
5
In this Act:
6
corporation/scheme civil penalty provision means a provision
7
specified in column 1 of any of the following items of the table in
8
subsection 1317E(1):
9
(a) items 1 to 13;
10
(b) item 46.
11
financial services civil penalty provision means a provision
12
specified in column 1 of any of the following items of the table in
13
subsection 1317E(1):
14
(a) item 14;
15
(b) items 23 to 45.
16
41 Subsection 1317E(1)
17
Repeal the subsection, substitute:
18
(1) If a Court is satisfied that a person has contravened a civil penalty
19
provision, it must make a declaration of contravention. The
20
provisions specified in column 1 of the following table are civil
21
penalty provisions.
22
23
Civil penalty provisions
Item
Column 1
provisions that are civil penalty
provisions
Column 2
brief description of what the
provisions are about
1
subsections 180(1), 181(1) and
(2), 182(1) and (2) and 183(1) and
(2)
officers' duties
2
subsections 188(1) and (2)
responsibilities of secretaries etc. for
Amendments Schedule 1
Other amendments Part 7
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 17
Civil penalty provisions
Item
Column 1
provisions that are civil penalty
provisions
Column 2
brief description of what the
provisions are about
corporate contraventions
3
subsection 209(2)
related parties rules
4
subsections 254L(2), 256D(3),
259F(2) and 260D(2)
share capital transactions
5
subsection 344(1)
requirements for financial reports
6
subsection 588G(2)
insolvent trading
7
subsection 601FC(5)
duties of responsible entity
8
subsection 601FD(3)
duties of officers of responsible entity
9
subsection 601FE(3)
duties of employees of responsible
entity
10
subsection 601FG(2)
acquisition of interest in scheme by
responsible entity
11
subsection 601JD(3)
duties of members
12
subsection 601UAA(2)
duties of officers of licensed trustee
company
13
subsection 601UAB(2)
duties of employees of licensed trustee
company
14
subsections 674(2), 674(2A),
675(2) and 675(2A)
continuous disclosure
15
subsection 798H(1)
complying with market integrity rules
16
section 901E
complying with derivative transaction
rules
17
section 903D
complying with derivative trade
repository rules
18
subsections 961K(1) and (2)
financial services licensee responsible
for breach of certain best interests
duties
19
section 961L
financial services licensee to ensure
compliance with certain best interests
duties
20
subsection 961Q(1)
authorised representative responsible
for breach of certain best interests
duties
21
section 962P
charging ongoing fee after termination
Schedule 1 Amendments
Part 7 Other amendments
18 Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013
Civil penalty provisions
Item
Column 1
provisions that are civil penalty
provisions
Column 2
brief description of what the
provisions are about
of ongoing fee arrangement
22
subsection 962S(1)
fee recipient must give fee disclosure
statement
23
subsections 963E(1) and (2)
financial services licensee responsible
for breach of ban on conflicted
remuneration
24
section 963F
financial services licensee must ensure
representatives do not accept conflicted
remuneration
25
subsection 963G(1)
authorised representative must not
accept conflicted remuneration
26
section 963J
employer must not pay employees
conflicted remuneration
27
section 963K
financial product issuer or seller must
not give conflicted remuneration to
financial services licensee or
representative
28
subsection 964A(1)
platform operator must not accept
volume-based shelf-space fees
29
subsections 964D(1) and (2)
financial services licensee responsible
for breach of asset-based fees on
borrowed amounts
30
subsection 964E(1)
authorised representative must not
charge asset-based fees on borrowed
amounts
31
section 965
anti-avoidance of Part 7.7A provisions
32
subsection 985E(1)
issuing or increasing limit of margin
lending facility without having made
assessment etc.
33
subsection 985H(1)
failure to assess a margin lending
facility as unsuitable
34
subsection 985J(1)
failure to give assessment to retail
client if requested before issue of
facility or increase in limit
35
subsection 985J(2)
failure to give assessment to retail
Amendments Schedule 1
Other amendments Part 7
Corporations and Financial Sector Legislation Amendment Bill 2013 No. , 2013 19
Civil penalty provisions
Item
Column 1
provisions that are civil penalty
provisions
Column 2
brief description of what the
provisions are about
client if requested after issue of facility
or increase in limit
36
subsection 985J(4)
demanding payment to give assessment
to retail client
37
subsection 985K(1)
issuing or increasing limit of margin
lending facility if unsuitable
38
section 985L
making issue of margin lending facility
conditional on retail client agreeing to
receive communications through agent
39
subsection 985M(1)
failure to notify of margin call where
there is no agent
40
subsection 985M(2)
failure to notify of margin call where
there is an agent
41
section 1041A
market manipulation
42
subsection 1041B(1)
false trading and market rigging--
creating a false or misleading
appearance of active trading etc.
43
subsection 1041C(1)
false trading and market rigging--
artificially maintaining etc. market
price
44
section 1041D
dissemination of information about
illegal transactions
45
subsections 1043A(1) and (2)
insider trading
46
subclause 29(6) of Schedule 4
disclosure for proposed
demutualisation
Note 1:
Once a declaration has been made ASIC can then seek a pecuniary
1
penalty order (section 1317G) or (in the case of a corporation/scheme
2
civil penalty provision) a disqualification order (section 206C).
3
Note 2:
The descriptions of matters in column 2 are indicative only.
4
[Index] [Search] [Download] [Related Items] [Help]