CORPORATE COLLECTIVE INVESTMENT VEHICLE FRAMEWORK AND OTHER MEASURES BILL 2021

2019-2020-2021

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Corporate Collective Investment Vehicle

Framework and Other Measures Bill

2021

No. , 2021

(Treasury)

A Bill for an Act to provide for corporate collective

investment vehicles, to amend the law relating to

taxation and superannuation and to make

miscellaneous and technical amendments of the law

in the Treasury portfolio, and for related purposes

No. , 2021

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

Contents

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

Commencement ................................................................................. 2

Schedules ........................................................................................... 4

Schedule 1--Corporate collective investment vehicles: main

amendments

Corporations Act 2001

Schedule 2--Corporate collective investment vehicles: other

amendments of the Corporations Act 2001

198

Corporations Act 2001

198

Schedule 3--Corporate collective investment vehicles:

amendments of other Acts

229

Australian Securities and Investments Commission Act 2001

229

Personal Property Securities Act 2009

233

Schedule 4--Corporate collective investment vehicles:

contingent amendments

235

Corporations Act 2001

235

Schedule 5--Corporate collective investment vehicles: tax

framework

237

Part 1--Main amendments

237

Income Tax Assessment Act 1997

237

International Tax Agreements Act 1953

246

Part 2--Consequential amendments

247

A New Tax System (Australian Business Number) Act 1999

247

Income Tax Assessment Act 1997

247

Part 3--Amendments consequential on enactment of the

Commonwealth Registers Act 2020

250

Income Tax Assessment Act 1997

250

Schedule 6--Extension of temporary loss carry back

252

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

No. , 2021

Part 1--Main amendments

252

Income Tax Assessment Act 1997

252

Taxation Administration Act 1953

256

Part 2--Contingent amendments

257

Income Tax Assessment Act 1997

257

Schedule 7--Deductible gift recipients

258

Income Tax Assessment Act 1997

258

Schedule 8--Minor and technical amendments Spring 2021

260

Part 1--Amendments commencing day after Royal Assent

260

Australian Prudential Regulation Authority Supervisory Levies

Determination 2021

260

Corporations Act 2001

260

Foreign Acquisitions and Takeovers Act 1975

264

Income Tax Rates Act 1986

264

National Consumer Credit Protection Act 2009

265

National Consumer Credit Protection (Transitional and

Consequential Provisions) Act 2009

265

Payment Times Reporting Act 2020

267

Taxation Administration Act 1953

269

Part 2--Amendments commencing first day of next quarter

270

Income Tax Assessment Act 1997

270

Taxation Administration Act 1953

270

Taxation Administration (Remedial Power - Seasonal Labour

Mobility Program) Determination 2020

271

Part 3--Amendments commencing on 1 July 2022

272

National Consumer Credit Protection (Transitional and

Consequential Provisions) Act 2009

272

Part 4--Amendments with contingent commencement

273

Income Tax Assessment Act 1936

273

Taxation Administration Act 1953

273

No. , 2021

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

A Bill for an Act to provide for corporate collective

investment vehicles, to amend the law relating to

taxation and superannuation and to make

miscellaneous and technical amendments of the law

in the Treasury portfolio, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Corporate Collective Investment Vehicle

Framework and Other Measures Act 2021

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

No. , 2021

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.

Commencement information

Column 1

Column 2

Column 3

Provisions

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. Schedules 1, 2

and 3

1 July 2022.

1 July 2022

3. Schedule 4

Immediately after the commencement of the

provisions covered by table item 2.

However, Schedule 4 does not commence at

all if Schedule 2 to the

Corporations

Amendment (Meetings and Documents) Act

2021

does not commence before 1 July

2022.

4. Schedule 5,

Parts 1 and 2

1 July 2022.

1 July 2022

5. Schedule 5,

Part 3

A single day to be fixed by Proclamation.

However, if the provisions do not commence

before 1 January 2025, they commence on

that day.

6. Schedule 6,

Part 1

The first 1 January, 1 April, 1 July or

1 October to occur after the day this Act

receives the Royal Assent.

7. Schedule 6,

Part 2

The later of:

(a) immediately after the commencement of

the provisions covered by table item 6;

and

(b) immediately after the commencement of

No. , 2021

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

Division 6 of Part 1 of Schedule 3 to the

Treasury Laws Amendment (2021

Measures No. 5) Act 2021

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

8. Schedule 7

The first 1 January, 1 April, 1 July or

1 October to occur after the day this Act

receives the Royal Assent.

9. Schedule 8,

Part 1

The day after this Act receives the Royal

Assent.

10. Schedule 8,

Part 2

The first 1 January, 1 April, 1 July or

1 October to occur after the day this Act

receives the Royal Assent.

11. Schedule 8,

Part 3

Immediately after the commencement of

Part 2 of Schedule 2 to the

National

Consumer Credit Protection Amendment

(Mandatory Credit Reporting and Other

Measures) Act 2021

1 July 2022

12. Schedule 8,

Part 4

Immediately after the commencement of

item 143 of Schedule 4 to the

Treasury Laws

Amendment (2020 Measures No. 6) Act

2020

13. Schedule 9

The day after this Act receives the Royal

Assent.

14. Schedule 10

The first 1 January, 1 April, 1 July or

1 October to occur after the day this Act

receives the Royal Assent.

Note:

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

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

Corporate Collective Investment Vehicle Framework and Other

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No. , 2021

3 Schedules

Legislation 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.

Note:

The provisions of a legislative instrument (the

principal instrument

)

amended or inserted by this Act, and any other provisions of the

principal instrument, may be amended or repealed by a legislative

instrument made under the enabling provision for the principal

instrument (see subsection 13(5) of the

Legislation Act 2003

Corporate collective investment vehicles: main amendments

Schedule 1

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Corporate Collective Investment Vehicle Framework and Other

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Schedule 1--Corporate collective investment

vehicles: main amendments

Corporations Act 2001

1 Subsection 112(1) (at the end of the table)

Add:

Corporate collective

investment vehicles

Limited by shares

2 Subsection 112(1) (note)

Omit "Note", substitute "Note 1".

3 At the end of subsection 112(1)

Add:

Note 2:

For corporate collective investment vehicles, see Chapter 8B.

4 Before Chapter 9

Insert:

Chapter 8B--Corporate collective investment

vehicles

Part 8B.1--Preliminary

1221 Objects of this Chapter

The objects of this Chapter are:

(a) to provide a regulatory framework for corporate collective

investment vehicles that is fair, efficient and competitive; and

(b) together with Chapter 7, to promote confident and informed

decision making by consumers of financial products and

services related to shares in corporate collective investment

vehicles.

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Part 8B.2--Registration of CCIVs

Division 1--Registering a CCIV

Subdivision A--Requirements for registration as a CCIV

1222 Requirements for registration as a CCIV

The requirements for registration of a company as a CCIV are as

follows:

(a) the company is a company limited by shares;

(b) the company has a constitution;

company that holds an Australian financial services licence

authorising it to operate the business and conduct the affairs

of a CCIV;

(d) the company will, upon registration, have at least one

sub-fund;

(e) each sub-fund of the company will, upon registration, have at

least one member;

(f) a notice under subsection 1222A(4) (about whether a CCIV

is to be a retail CCIV or a wholesale CCIV) has been lodged

with the application;

(g) if the company will, on registration, be a retail CCIV--the

company has a compliance plan.

Note:

CCIV is short for corporate collective investment vehicle, which is a

type of company that can be registered under this Act: see section 112.

Subdivision B--How a CCIV is registered

1222A Applying for registration

(1) This section applies in relation to an application for registration

made under subsection 117(1) if the type of company that is

proposed to be registered under this Act is a CCIV.

(2) The application is not required to state the information mentioned

in paragraphs 117(2)(d), (e), (f), (ma) and (mb).

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(3) In addition to the information required by subsection 117(2) as

modified by subsection (2) of this section, the application must

also state:

(a) the name, and the address of the registered office, of the

public company that consents in writing to become the

director of the CCIV; and

(b) the proposed name of each sub-fund the CCIV is to have

when it is registered; and

(i) which of the members identified under

paragraph 117(2)(c) are to be members of the sub-fund;

and

(ii) which of the shares identified under

paragraph 117(2)(k) are to be referable to the sub-fund.

Note:

For paragraph (b), see section 1222V.

(4) A notice stating whether the CCIV is to be a retail CCIV or a

wholesale CCIV must be lodged with the application.

(5) A copy of the CCIV's constitution must be lodged with the

application.

Note:

The requirement for a CCIV to have a constitution is set out in section

1223B.

(6) If the CCIV is to be a retail CCIV, a copy of the compliance plan

signed by all the directors of the proposed corporate director of the

CCIV must be lodged with the application.

Note:

The requirement for a retail CCIV to have a compliance plan is set out

in section 1226.

(7) Subsection 117(5) applies as if the consents referred to in

subsection (3) of this section were referred to in subsection 117(2).

1222B No other way to register a CCIV

A body may not be taken under section 5H to be registered under

this Act as a CCIV.

1222C Registration of a CCIV

If:

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(a) an application to register a company as a CCIV is lodged

under section 117; and

(b) the company meets the requirements for registration as a

CCIV set out in section 1222;

ASIC may take the steps set out in paragraphs 118(1)(a), (b) and

Note 1:

The CCIV comes into existence on registration: see section 119.

Note 2:

ASIC must also register at least one sub-fund of the CCIV: see

paragraph 1222(d) and section 1222R.

1222D Corporate director and members of a CCIV

(1) A public company becomes the director of a CCIV on registration

if the public company is specified in the application with its

consent as the proposed corporate director of the CCIV.

(2) A person becomes a member of a CCIV on registration if the

person is specified in the application with their consent as a

proposed member of the CCIV.

Note:

The shares taken to be issued to the member are those specified in the

application: see subsection 120(2).

(3) Subsection 120(1) does not apply in relation to a CCIV.

Subdivision C--Names of CCIVs

1222E Special requirements for naming of CCIVs

(1) Subsection 148(1) applies to a CCIV as if the reference to

subsections (2) and (3) of section 148 were instead a reference to

subsection (2) of this section.

(2) A CCIV must have the expression "Corporate Collective

Investment Vehicle" at the end of its name.

1222F Special requirements for acceptable abbreviations of CCIV

names

Section 149 has effect as if the following item were added to the

table in subsection (1) of that section:

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Schedule 1

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Measures Bill 2021

10 Corporate Collective

Investment Vehicle

CCIV

1222G Carrying on business using "CCIV" in name

Section 156 has effect as if paragraph 156(1)(a) included a

reference to the words "Corporate Collective Investment Vehicle"

(or an abbreviation of those words).

1222H Change of name not allowed while sub-fund in liquidation

No application may be lodged with ASIC under section 157A in

relation to a CCIV.

Subdivision D--Retail CCIVs and wholesale CCIVs

1222J Meaning of retail CCIV and wholesale CCIV

(1) A CCIV is a

retail CCIV

if:

(a) the CCIV satisfies the retail CCIV test in section 1222K; or

(b) the CCIV is notified as a retail CCIV (see section 1222L).

(2) A CCIV that is not a retail CCIV is a

wholesale CCIV

1222K Retail CCIV test

(1) A CCIV satisfies the retail CCIV test in this section if any of the

following apply:

(a) at least one member of the CCIV is covered by subsection (2)

(about protected retail clients);

(b) at least one member of the CCIV is covered by subsection (3)

(about protected clients under custodial arrangements);

(about protected members of passport funds).

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When a person is a protected retail client of a CCIV

(2) For the purposes of paragraph (1)(a), a person is covered by this

subsection in relation to a CCIV if all of the following apply:

(a) the person acquires a security (within the meaning of

Chapter 7) issued by the CCIV, by way of:

(i) an issue of the security to the person (rather than a

transfer of the security to the person); or

(ii) a transfer of the security to the person in circumstances

described in subsection 1012C(5), (6) or (8) (secondary

sales that require a Product Disclosure Statement);

(b) the person acquired the security as a retail client for the

purposes of Chapter 7;

subsection 1241S(3)) with the CCIV;

(d) if the person acquired the security by way of an issue--the

issue was not made in a situation, or pursuant to an offer

made in a situation, to which section 1012E (about small

scale offerings) applies.

Note:

Section 1012E applies to financial products that are securities in a

CCIV: see subsection 1241S(6).

When a person is a protected client under a custodial arrangement

(3) For the purposes of paragraph (1)(b), a person is covered by this

subsection in relation to a CCIV if all of the following apply:

(a) an acquisition of a security (within the meaning of Chapter 7)

in the CCIV occurs pursuant to an instruction given by the

person under a custodial arrangement (within the meaning of

section 1012IA);

(b) if there were an equivalent direct acquisition (within the

meaning of subsection 1012IA(2)) by the person, the person

would acquire the security as a retail client for the purposes

of Chapter 7;

subsection 1241S(3)) with the CCIV.

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When a person is a protected passport fund member

(4) For the purposes of paragraph (1)(c), a person is covered by this

subsection in relation to a CCIV if:

(a) a sub-fund of the CCIV is an Australian passport fund; and

(b) the person became a member of the sub-fund (whether in this

jurisdiction or any host economy for the fund):

(i) on the expectation that the sub-fund would become an

Australian passport fund; or

(ii) after the sub-fund became an Australian passport fund;

and

(i) is not, and has not at any time been, the corporate

director of the CCIV; and

(ii) is not a related party of an entity that is, or has at any

time been, the corporate director of the CCIV.

Note:

See section 1216B for the circumstances in which a person becomes a

member of a fund on the expectation that it would become an

Australian passport fund.

Regulations

(5) The regulations may do either or both of the following:

(a) prescribe additional circumstances in which a person is

covered by subsection (2), (3) or (4) in relation to a CCIV;

(b) provide that a particular class of person is not covered by

subsection (2), (3) or (4) in relation to a CCIV.

1222L Notifying ASIC of status as a retail CCIV or wholesale CCIV

(1) For the purposes of paragraph 1222J(1)(b), a CCIV is notified as a

retail CCIV if:

(a) the most recent notice lodged with ASIC under this section is

a notice that the CCIV is, or wishes to be, a retail CCIV; or

(b) both:

(i) the notice required by subsection 1222A(4) to be lodged

with the application to register the CCIV stated that the

CCIV was to be a retail CCIV; and

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(ii) the CCIV has not lodged a notice with ASIC under this

section stating that the CCIV is eligible to be, and

wishes to be, a wholesale CCIV.

(2) Subject to this section, a CCIV may at any time:

(a) lodge with ASIC a notice in the prescribed form stating that

the CCIV is, or wishes to be, a retail CCIV; or

(b) lodge with ASIC a notice in the prescribed form stating that

the CCIV is eligible to be, and wishes to be, a wholesale

CCIV.

Note:

A CCIV that lodges a notice under paragraph (2)(b) will be a retail

CCIV despite the notice if it is not eligible to be a wholesale CCIV

because it passes the retail CCIV test: see section 1222J. Lodging a

notice under paragraph (2)(b) in this situation is an offence: see

subsection (7).

When a retail CCIV notice must be lodged

(3) A CCIV must lodge a notice under paragraph (2)(a) if, because of

the operation of paragraph 1222J(1)(a) (about the retail CCIV test),

the CCIV becomes a retail CCIV.

(4) A notice required by subsection (3) must be lodged within 2

business days of the CCIV becoming a retail CCIV.

(5) An offence based on subsection (3) is an offence of strict liability.

(6) In any proceedings against a person for an offence based on

subsection (3), it is a defence if at the relevant time the person did

not know, and could not reasonably be expected to have known,

that the CCIV satisfied the retail CCIV test.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection: see subsection 13.3(3) of the

Criminal Code

When a wholesale CCIV notice must not be lodged

(7) A CCIV commits an offence if:

(a) the CCIV lodges a notice under paragraph (2)(b); and

(b) the CCIV satisfies the retail CCIV test.

(8) An offence based on subsection (7) is an offence of strict liability.

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1222M Table of provisions that apply only to retail CCIVs

The following table sets out the main provisions of this Act that

apply only in relation to retail CCIVs. If a provision is not set out

in this table, disregard that fact in deciding whether or not the

provision applies only to retail CCIVs.

Provisions that apply only to retail CCIVs

Item

Topic

Provision(s)

A sub-fund of a retail CCIV may be registered as

an Australian passport fund

Part 8A.3

ASIC may direct a retail CCIV to modify its

constitution

section 1223C

Content requirements for the constitution of a

retail CCIV

sections 1223G and

1223H

Duties owed by a director of a retail CCIV

subsection 1224D(2)

The corporate director of a retail CCIV must have

external directors

section 1224G

Extended responsibility of corporate director of a

retail CCIV for certain acts of agents

section 1224M

Limitation on right of the corporate director of a

retail CCIV to fees and indemnities

section 1224N

Limitation on right of the corporate director of a

retail CCIV to acquire shares in the CCIV

section 1224P

Duties owed by the officers of the corporate

director of a retail CCIV

section 1225

Duties owed by the employees of the corporate

director of a retail CCIV

section 1225F

Requirement for a retail CCIV to have a

compliance plan

Division 4 of Part 8B.3

Requirement for member approval for certain

related party transactions relating to retail CCIVs

(application of Chapter 2E)

Subdivision A of

Division 5 of Part 8B.3

Further requirements for redemptions of shares by

a retail CCIV

sections 1230G to

1230K

Requirements for self-acquisition by retail CCIV

subsection 1231J(2)

Part 2M.3 (financial reporting)

section 1232

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Subdivision E--Listing not permitted for certain CCIVs and

sub-funds

1222N Certain CCIVs and sub-funds must not be listed

The following must not be included in the official list of a

prescribed financial market operated in this jurisdiction:

(a) a wholesale CCIV;

(b) a retail CCIV that has more than one sub-fund;

(d) a sub-fund of a retail CCIV that has more than one sub-fund.

Note 1:

This section does not prohibit either or both of the following from

being included in the official list of a prescribed financial market

operated in this jurisdiction:

(a) a sub-fund of a retail CCIV that has only one sub-fund;

(b) that retail CCIV.

Note 2:

A retail CCIV will be a listed company if its single sub-fund is

included in such an official list even if the retail CCIV is not so

included (see the definition of

listed

in section 9).

Subdivision F--Changing company type not permitted

1222P Part 2B.7 does not apply to a CCIV

Part 2B.7 (about changing company type) does not apply to a

CCIV.

Division 2--Registering a sub-fund of a CCIV

Subdivision A--What is a sub-fund of a CCIV

1222Q What is a sub-fund of a CCIV

(1) A

sub-fund

of a CCIV is all or part of the business of the CCIV

that is registered as a sub-fund under section 1222S.

Note:

A sub-fund of a CCIV may be registered as a passport fund: see

Part 8A.3.

(2) A sub-fund does not have legal personality.

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(3) A person is a

member

of a sub-fund of a CCIV if the person:

(a) is a member of the CCIV; and

(b) holds one or more shares that are referable to the sub-fund.

Note:

For when a share is referable to a sub-fund, see section 1230.

Subdivision B--How a sub-fund of a CCIV is registered

1222R Initial sub-funds to be registered when the CCIV is registered

If ASIC registers a CCIV, ASIC must also register one or more

sub-funds of the CCIV.

Note:

If ASIC deregisters a sub-fund, and as a result the CCIV has no

sub-funds, ASIC must deregister the CCIV: see section 1239K.

1222S Registration of a sub-fund

Registration of initial sub-funds

(1) ASIC may register a sub-fund of a CCIV if:

(a) ASIC registers the CCIV; and

(b) the proposed name of the sub-fund is specified in the

application to register the CCIV.

Registration of further sub-funds

(2) ASIC may also register a sub-fund of a CCIV if an application to

ASIC to give sub-fund an ARFN

(3) If ASIC registers a sub-fund, ASIC must give the sub-fund an

ARFN.

ASIC must keep record of registration

(4) ASIC must keep a record of the registration. Subsections 1274(2)

and (5) apply to the record as if it were a document lodged with

ASIC.

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1222T Sub-fund is established on registration

(1) A sub-fund of a CCIV is established at the beginning of the day on

which the sub-fund is registered.

(2) The sub-fund's name is the name specified in ASIC's record of the

registration.

1222U Application to register further sub-funds

(1) To register a sub-fund of a CCIV, a person may lodge an

application with ASIC.

Note:

A CCIV must have at least one sub-fund when it is first registered: see

section 1222R.

(2) The application must state:

(a) the name and ACN of the CCIV; and

(b) the proposed name of the sub-fund; and

a member of the sub-fund; and

(d) the following:

(i) the number and class of shares each member agrees in

writing to take up;

(ii) the amount (if any) each member agrees in writing to

pay for each share;

(iii) whether the shares each member agrees in writing to

take up will be fully paid on registration;

(iv) if that amount is not to be paid in full on registration--

the amount (if any) each member agrees in writing to be

unpaid on each share;

(v) whether or not the shares each member agrees in writing

to take up will be beneficially owned by the member on

registration.

(3) The application must be in the prescribed form.

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Subdivision C--Names of sub-funds

1222V A sub-fund's name

CCIV using ACN

(1) If a CCIV has as its name the expression "Australian Company

Number" followed by the CCIV's ACN, a sub-fund of the CCIV

may have as its name the expression "Australian Registered Fund

Number" followed by the sub-fund's ARFN.

CCIV using available name

(2) If a CCIV has as its name an available name, a sub-fund of the

CCIV may have as its name an expression comprising the

following 3 elements, in the following order:

(a) first element--the CCIV's name (without the words

"Corporate Collective Investment Vehicle" at the end of the

name);

(b) second element--a name that meets the requirements in

subsection (3);

(3) A name meets the requirements in this subsection unless the name

is:

(a) identical to a name that is used as the second element of the

name of another sub-fund of the same CCIV; or

(b) identical to a name that is reserved by ASIC in respect of

another person who is not the person applying to have the

name; or

1222W Using sub-fund name and ARFN on documents

(1) A CCIV must set out a sub-fund's name and ARFN on all its

public documents and negotiable instruments that relate to the

sub-fund.

(2) An offence based on subsection (1) is an offence of strict liability.

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1222X Acceptable abbreviations of sub-fund names

(1) The abbreviations set out in the following table may be used:

(a) instead of words that this Act requires to be part of a

sub-fund's name or to be included in a document or

negotiable instrument; and

(b) instead of words that are part of a sub-fund's name; and

Acceptable abbreviations

Item

Word

Abbreviation

Sub-fund

Australian Registered Fund Number

ARFN

Australian

Aust

Number

and

(2) If a sub-fund's name includes any of these abbreviations, the word

or words corresponding to the abbreviation may be used instead.

1222Y Sub-fund changing its name

(1) To change the name of a sub-fund of a CCIV, the CCIV may lodge

an application to ASIC in the prescribed form stating the proposed

name of the sub-fund.

(2) However, no application may be lodged with ASIC under

subsection (1) while the sub-fund is in liquidation.

(3) If the proposed name meets the requirements of section 1222V,

ASIC must change the sub-fund's name by altering ASIC's record

of the sub-fund's registration to reflect the change. The change of

name takes effect when ASIC alters ASIC's record of the

sub-fund's registration.

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1222Z ASIC's power to direct CCIV to change a sub-fund's name

(1) ASIC may direct a CCIV in writing to change the name of a

sub-fund of the CCIV within 2 months if:

(a) the name should not have been registered; or

(b) ASIC has directed the CCIV to change its name under

section 158.

(2) The CCIV must comply with the direction within 2 months after

being given it.

(3) An offence based on subsection (2) is an offence of strict liability.

(4) If the CCIV does not comply with subsection (2), ASIC may

change the sub-fund's name to the expression "Australian

Registered Fund Number" followed by the sub-fund's ARFN.

ASIC does this by altering ASIC's record of the sub-fund's

registration to reflect the change.

Note:

For ASIC's record of the registration of a sub-fund, see subsection

1222S(4).

(5) A change of name under subsection (4) takes effect when ASIC

alters ASIC's record of the sub-fund's registration.

1222ZA Effect of name change

A change of the name of a sub-fund of a CCIV does not:

(a) create a legal entity; or

(b) affect the sub-fund's existing property, rights or obligations;

CCIV and relating to the sub-fund.

Division 3--Registers

1222ZB Registers relating to CCIVs

(1) The register of members kept by a CCIV in accordance with

section 169 must, in addition to the information mentioned in

subsection 169(3), also show the following:

(a) the sub-fund of the CCIV to which each share is referable;

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(b) if the CCIV holds a share in the CCIV:

(i) the sub-fund of the CCIV to which the share is

referable; and

(ii) the other sub-fund of the CCIV for which the share has

been acquired;

(i) the sub-fund of the CCIV to which the share is

referable; and

(ii) the sub-fund of the other CCIV for which the share has

been acquired.

(2) The register of option holders kept by a CCIV in accordance with

section 170 must, as part of the description of an unissued share

mentioned in paragraph 170(1)(d), also show the following:

(a) the sub-fund of the CCIV to which the share is referable;

(b) if the CCIV holds an option over the share:

(i) the sub-fund of the CCIV to which the share is

referable; and

(ii) the other sub-fund of the CCIV for which the option

over the share has been acquired;

(i) the sub-fund of the CCIV to which the share is

referable; and

(ii) the sub-fund of the other CCIV for which the option

over the share has been acquired.

(3) The register of debenture holders kept by a CCIV in accordance

with section 171 must also contain information about the

following:

(a) the sub-fund of the CCIV to which each debenture is

referable;

(b) if the CCIV holds a debenture issued by the CCIV:

(i) the sub-fund of the CCIV to which the debenture is

referable; and

(ii) the other sub-fund of the CCIV for which the debenture

has been acquired;

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(i) the sub-fund of the CCIV to which the debenture is

referable; and

(ii) the sub-fund of the other CCIV for which the debenture

has been acquired.

Part 8B.3--Corporate governance of CCIVs

Division 1--Governance rules

Subdivision A--How a CCIV exercises company powers

1223 Execution of documents (including deeds) by the CCIV itself

(1) A document is taken to have been signed in accordance with

subsection 127(1) if the document is signed by:

(a) 2 directors of the corporate director of the CCIV; or

(b) a director and a company secretary of the corporate director

of the CCIV.

Note:

If a document is signed in this way, a person will be able to rely on the

assumptions in subsection 129(5) for dealings in relation to the CCIV.

(2) A CCIV's common seal (if any) is taken to have been fixed to a

document in accordance with subsection 127(2) if:

(a) the CCIV's common seal is fixed to the document; and

(b) the fixing of the seal is witnessed by:

(i) 2 directors of the corporate director of the CCIV; or

(ii) a director and a company secretary of the corporate

director of the CCIV.

Note:

If a CCIV executes a document in this way, a person will be able to

rely on the assumptions in subsection 129(6) for dealings in relation to

the CCIV.

(3) A CCIV may execute a document as a deed if the document is

expressed to be executed as a deed and is executed in accordance

with subsection 127(1) or (2), as affected by this section.

(4) This section does not limit the ways in which a CCIV may execute

a document (including a deed).

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(5) This section does not limit Part 2B.1, as it applies to a CCIV

subject to the modifications set out in this Chapter.

Note 1:

A CCIV may appoint an agent: see section 126.

Note 2:

Some provisions of this Chapter modify section 124, for example

sections 1230 and 1231N.

Subdivision B--Constitution

1223A Replaceable rules do not apply to a CCIV

(1) A section or subsection whose heading contains the words

replaceable rule

does not apply as a replaceable rule to a CCIV.

(2) Subsection (1) applies despite paragraph 135(1)(a).

1223B Requirement for a CCIV to have a constitution

(1) A CCIV must have a constitution. A CCIV may not repeal its

constitution unless it replaces the constitution with a new

constitution.

Minimum content requirements for the constitution

(2) The constitution of a CCIV must comply with the requirements

applicable to the CCIV under Subdivision C.

Strict liability offence

(3) A CCIV commits an offence of strict liability if it fails to ensure it

has a constitution that complies with the requirements applicable to

the CCIV under Subdivision C.

1223C Retail CCIV--ASIC may direct CCIV to modify its

constitution

(1) ASIC may direct a retail CCIV to modify its constitution, as set out

in the direction, to ensure that the CCIV's constitution complies

with the content requirements applicable to the CCIV under

Subdivision C. The direction is to be given by notice in writing to

the CCIV.

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(2) ASIC may also direct a retail CCIV to modify its constitution, as

set out in the direction, to ensure that the CCIV's constitution deals

in adequate detail with:

(a) the matters required to be included in the constitution under

Subdivision C; and

(b) the specification (if any) of any rights of the corporate

director to be paid fees out of assets of a sub-fund of the

CCIV, as mentioned in section 1224N.

(3) Despite section 1223D, the corporate director may modify the

constitution to comply with the direction.

(4) The CCIV must comply with the direction within 14 days after

being given it.

(5) The CCIV must lodge with ASIC a copy of the modified

constitution within 14 days after the modification.

(6) An offence based on subsection (4) or (5) is an offence of strict

liability.

1223D Adoption, modification and repeal of constitution

(1) A CCIV adopts on registration the constitution lodged with the

application to register the CCIV.

(2) The constitution of a CCIV may be modified, or repealed and

replaced with a new constitution:

(a) if the CCIV is a retail CCIV:

(i) by special resolution of the members of the CCIV; or

(ii) by the corporate director, if the corporate director

reasonably considers the change will not adversely

affect members' rights; or

(iii) by special resolution of the members of a sub-fund of

the CCIV, if the corporate director reasonably considers

the change will not adversely affect the rights of any

member of any other sub-fund of the CCIV; or

(b) if the CCIV is a wholesale CCIV--by complying with the

requirements set out in the constitution for the modification

or repeal.

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(3) If the constitution of a CCIV is modified, or repealed and replaced

with a new constitution, the CCIV must lodge with ASIC:

(a) a copy of the modification, or the new constitution; and

(b) if the corporate director of the CCIV determines a later date

mentioned in paragraph (5)(b) or (c) for the modification or

replacement to take effect--notice of the later date;

within 14 days after the modification or replacement.

Note:

The constitution may be modified or repealed by Court order: see

section 233.

(4) An offence based on subsection (3) is an offence of strict liability.

(5) If section 137 does not set the date on which the modification or

repeal and replacement of a CCIV's constitution takes effect, it

takes effect on the latest of the following:

(a) the date on which the modification or the new constitution is

lodged with ASIC;

(b) if the CCIV is a retail CCIV, and the corporate director

determines a later date for the modification or replacement to

take effect--that later date;

determined in accordance with any requirements in the

constitution of the CCIV--that later date.

(6) Section 136 does not apply to a CCIV.

1223E Effect of constitution

In addition to the effect mentioned in subsection 140(1), a CCIV's

constitution also has effect as a contract between the corporate

director and each member of the CCIV.

Subdivision C--Minimum content requirements for the

constitution of a CCIV

1223F Wholesale CCIV--Basic content requirement

A wholesale CCIV's constitution must specify the requirements

that must be complied with for the CCIV to modify its constitution,

or repeal its constitution and replace it with a new one.

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1223G Retail CCIV--Basic content requirements

A retail CCIV's constitution must do the following:

(a) make provision for the establishment of sub-funds, and

classes of shares referable to sub-funds;

(b) make provision for the method by which complaints made by

members in relation to the CCIV are to be dealt with;

(d) if there are to be any limits on the CCIV's exercise of the

power to borrow or raise money--sets out those limits;

(e) if the CCIV is to acquire in respect of any of its sub-funds,

one or more shares that are referable to another of its

sub-funds--make provision for such acquisitions.

1223H Retail CCIV--Additional content requirement for

redemption of shares

(1) This section applies if all or some of the shares in a retail CCIV are

redeemable shares or redeemable preference shares.

(2) The CCIV's constitution must make provision for the shares to be

redeemed. The provision must:

(a) specify a period within which a redemption must ordinarily

be satisfied while section 1230H (about when a sub-fund is

liquid) applies to the sub-fund to which the share is referable;

and

(b) be fair and reasonable to the members of the sub-fund to

which the share is referable; and

shares in the CCIV are to be redeemed if, at the time of the

redemption, section 1230H (about when a sub-fund is liquid)

applies to the sub-fund to which the shares are referable.

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Division 2--Officers and employees of the CCIV

Subdivision A--Officers and employees generally

1224 A CCIV has a single corporate director

A CCIV may only have one director

(1) A CCIV must not appoint more than one director.

Note:

For who can be the director of a CCIV, see sections 1224F and

1224G.

Position of director is the position of corporate director

(2) The position of director of a CCIV is the position of corporate

director.

(3)

Corporate director

of a CCIV means the company named in

ASIC's record of the CCIV's registration as the corporate director

or temporary corporate director of the CCIV.

Note:

The corporate director is first appointed through the registration

process for the CCIV: see sections 1222A and 1222D.

No alternate directors

(4) There is no position of alternate director of a CCIV.

(5) The corporate director of a CCIV commits an offence if the

corporate director appoints an alternate director.

Note:

For the corporate director's power to appoint an agent, see section

1224L.

Definition of director not limited

(6) This section does not limit the operation of paragraph (b) of the

definition of

director

in section 9 in relation to a CCIV.

1224A A CCIV has no secretary and no employees

(1) A CCIV must not appoint a secretary.

Note:

The secretary of the corporate director is responsible for certain

corporate contraventions by the CCIV: see Division 3 of this Part.

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(2) A CCIV must not have any employees.

Note:

However, a CCIV may appoint an agent: see section 126.

1224B Meaning of officer of a CCIV

In this Act:

officer

of a corporation that is a CCIV means:

(a) a director of the CCIV; or

(b) a receiver, or receiver and manager, of the property of a

sub-fund of the CCIV; or

(d) a trustee or other person administering a compromise or

arrangement made between the CCIV and someone else.

Note:

Part 8B.6 is about external administration of sub-funds.

1224C General duties owed by officers

(1) Division 1 of Part 2D.1 (about general duties) applies to a CCIV

with the modifications set out in this section.

(2) In applying Division 1 of Part 2D.1 (about general duties) in

relation to an officer (other than a director) of a CCIV:

(a) treat references to the best interests of the corporation as

instead being references to the best interests of the sub-fund

referred to in subsection (3); and

(b) treat references to causing detriment to the corporation as

instead being references to causing detriment to the sub-fund

referred to in subsection (3); and

as instead being references to the business operations of the

sub-fund referred to in subsection (3).

(3) The sub-fund is:

(a) for a receiver, or receiver and manager, of the property of a

sub-fund of the CCIV--the sub-fund; or

(b) for a liquidator of a sub-fund of the CCIV--the sub-fund; or

arrangement made between the CCIV and someone else--the

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sub-fund on whose members or creditors the compromise or

arrangement is binding.

1224D Duties owed by director

Duties owed by a director of any CCIV

(1) A director of a CCIV must, in exercising its powers and carrying

out its duties:

(a) act honestly; and

(b) act in the best interests of the members of the CCIV and, if

there is a conflict between the interests of those members and

its own interests, give priority to the members' interests; and

sub-fund of the CCIV and:

(i) if there is a conflict between the interests of the

members, as a whole, of a sub-fund and its own

interests, give priority to the members' interests; and

(ii) if there is a conflict between the interests of the

members, as a whole, of a sub-fund and the best

interests of the members of the CCIV, give priority to

the interests of the members of the CCIV; and

(d) have in place adequate arrangements for the management of

conflicts of interest that may arise wholly, or partially, in

relation to activities undertaken by the director in exercising

those powers and carrying out those duties; and

(e) not make use of information acquired through being a

director of the CCIV in order to:

(i) gain an improper advantage for the director or another

person; or

(ii) cause detriment to the members of the CCIV.

Note:

This subsection is a civil penalty provision (see section 1317E).

Additional duties owed by a director of a retail CCIV

(2) A director of a retail CCIV must, in exercising its powers and

carrying out its duties:

(a) exercise the degree of care and diligence that a reasonable

person would exercise in the director's position; and

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(b) treat members of the CCIV who hold shares of the same class

equally; and

classes fairly; and

(d) treat members of different sub-funds of the CCIV fairly; and

(e) ensure that the CCIV's constitution meets the requirements

of this Act; and

(f) ensure that the CCIV's compliance plan meets the

requirements of section 1226A; and

(g) comply with the CCIV's compliance plan; and

(h) ensure that:

(i) assets and liabilities of the sub-funds of the CCIV are

clearly identified; and

(ii) any property of the CCIV to which section 1233K

(about property that has to be converted) applies is

clearly identified; and

(iii) any liabilities of the CCIV to which section 1233M

(about liabilities allocated to 2 or more sub-funds)

applies is clearly identified; and

(i) ensure that assets of a sub-fund of the CCIV are held in the

manner required by section 1234J; and

(j) ensure that the assets of a sub-fund of the CCIV are valued at

regular intervals appropriate to the nature of the assets; and

(k) ensure that all payments out of the assets of the CCIV are

made in accordance with the CCIV's constitution and this

Act; and

(l) carry out or comply with any other duty, not inconsistent

with this Act, that is conferred on the director by the CCIV's

constitution.

Note:

This subsection is a civil penalty provision (see section 1317E).

Additional duties owed by a director of a wholesale CCIV

(3) A director of a wholesale CCIV must, in exercising its powers and

carrying out its duties:

(a) exercise the degree of care and diligence that a reasonable

person would exercise in the director's position; and

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(b) treat members of the CCIV who hold shares of the same class

equally; and

classes fairly; and

(d) treat members of different sub-funds of the CCIV fairly.

(4) A director of a wholesale CCIV contravenes this subsection if:

(a) the director contravenes paragraph (3)(a), (b), (c) or (d); and

(b) either:

(i) the constitution of the CCIV does not exempt the

director from liability for the contravention; or

(ii) the contravention was dishonest or involved a lack of

good faith.

Note:

This subsection is a civil penalty provision (see section 1317E).

Duties under this section prevail in case of conflict

(5) If there is a conflict between a duty owed by a director of a CCIV

under this section and a duty owed by the director under Part 2D.1,

the duty owed under this section prevails.

Interaction with other laws etc.

(6) Subsection (1) or (2):

(a) has effect in addition to, and not in derogation of, any rule of

law relating to the duty or liability of a person because of

their office or employment in relation to a corporation; and

(b) does not prevent the commencement of civil proceedings for

a breach of a duty or in respect of a liability referred to in

paragraph (a).

Interaction with section 199A

(7) Section 199A does not prevent a wholesale CCIV from exempting

or indemnifying a director of the CCIV from a liability incurred in

relation to a contravention of subsection (3) if the contravention:

(a) is not dishonest; and

(b) does not involve a lack of good faith.

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To avoid doubt, this subsection does not affect the operation of

section 199A in relation to a contravention of a duty owed under

Part 2D.1.

Interaction with section 199B

(8) Section 199B applies to a CCIV as if paragraph 199B(1)(b)

included a reference to this section.

Note:

There are additional modifications of section 199B, relevant to

officers and auditors of the corporate director, in section 1225E.

1224E Certain provisions in Chapter 2D do not apply to CCIVs

The following do not apply to a CCIV:

(a) Part 2D.3 (about appointment, remuneration and cessation of

appointment of directors);

(b) Part 2D.4 (about appointment of secretaries);

secretaries);

(d) Part 2D.6 (about disqualification from managing

corporations);

(e) Part 2D.7 (about ban on hedging remuneration of key

management personnel);

(f) Part 2D.8 (about remuneration recommendations in relation

to key management personnel for disclosing entities).

Subdivision B--The corporate director of a CCIV

1224F Who can be the director of a CCIV

The only kind of person who may be appointed as the director of a

CCIV is a public company that:

(a) holds an Australian financial services licence authorising it to

operate the business and conduct the affairs of the CCIV; and

(b) is not a Chapter 5 body corporate.

1224G Retail CCIV--additional rules about who can be the director

(1) At least half of the directors of the corporate director of a retail

CCIV must be external directors.

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(2) A director of the corporate director is an external director if the

director:

(a) is not, and has not been in the previous 2 years, an employee

of the corporate director or a related body corporate; and

(b) is not, and has not been in the previous 2 years, a senior

manager of the corporate director or a related body corporate;

and

involved in business dealings, or in a professional capacity,

with the corporate director or a related body corporate; and

(d) is not a member of a partnership that is, or has been in the

previous 2 years, substantially involved in business dealings,

or in a professional capacity, with the corporate director or a

related body corporate; and

(e) does not have a material interest in the corporate director or a

related body corporate; and

(f) is not a relative of a person who has a material interest in the

corporate director or a related body corporate.

(3) The corporate director of a retail CCIV must not fail to comply

with subsection (1) for a period exceeding 14 days (or a longer

period allowed in writing by ASIC).

Fault-based offence

(4) A person commits an offence if the person intentionally or

recklessly fails to comply with subsection (3).

Strict liability offence

(5) A person commits an offence of strict liability if the person fails to

comply with subsection (3).

(6) In agreeing to a longer period under subsection (3), ASIC may

impose conditions to be complied with and the corporate director

must comply with them.

(7) An offence based on subsection (6) is an offence of strict liability.

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1224H Effectiveness of acts by corporate director

(1) An act done by the company named in ASIC's record of a CCIV's

registration as the corporate director or temporary corporate

director of the CCIV is effective even if:

(a) the company's appointment as corporate director or

temporary corporate director did not comply with the CCIV's

constitution or any provision of this Act; or

(b) the continuance of the company's appointment as corporate

director or temporary corporate director does not comply

with the CCIV's constitution or any provision of this Act.

(2) Subsection (1) does not deal with the question whether an effective

act by a corporate director:

(a) binds the CCIV in its dealings with other people; or

(b) makes the CCIV liable to another person.

Note:

The kinds of acts that this section validates are those that are only

legally effective if the person doing them is a director (for example,

calling a meeting of the company's members). Sections 128 to 130

contain rules about the assumptions people are entitled to make when

dealing with a company and its officers.

1224J Corporate director must operate the CCIV

(1) The corporate director of a CCIV is to:

(a) operate the business and conduct the affairs of the CCIV; and

(b) perform the functions conferred on the corporate director by

the CCIV's constitution and this Act.

Note 1:

If a CCIV commits an offence or contravenes a civil penalty

provision, the corporate director is generally responsible: see

Division 7 of this Part.

Note 2:

Section 1224Q is about the exercise of powers by the corporate

director while a sub-fund is in liquidation.

(2) The corporate director of a CCIV may exercise all the powers of

the CCIV except any powers that this Act or the CCIV's

constitution requires:

(a) the CCIV to exercise in general meeting; or

(b) the members of a sub-fund of the CCIV to exercise in a

meeting of members of the sub-fund.

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1224K Corporate director not required to disclose material personal

interest

Subject to section 1225C (about the directors of the corporate

director), section 191 does not require a director of a CCIV to give

notice of an interest.

Note:

Section 1225C is about the obligations of the directors of the

corporate director to disclose material personal interests relating to the

affairs of the CCIV.

1224L Corporate director may appoint an agent or engage a person

Agents appointed by corporate director

(1) The corporate director has power to appoint an agent, or otherwise

engage a person, to do anything that the corporate director is

authorised to do in connection with the CCIV.

Note:

A CCIV may also have an agent: see section 126.

Agents appointed by CCIV and sub-agents

(2) An agent appointed, or a person otherwise engaged, by:

(a) an agent or person referred to in subsection (1); or

(b) the CCIV; or

the corporate director;

to do anything that the corporate director is authorised to do in

connection with the CCIV is taken to be an agent appointed by the

corporate director to do that thing for the purposes of this section.

Delegation

(3) Section 198D does not apply to a CCIV.

1224M Retail CCIV--responsibility of corporate director for

certain acts of agents

(1) Subsection (2) applies in relation to a retail CCIV for the purpose

of determining whether:

(a) there is a liability to the CCIV or the CCIV's members; or

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(b) the corporate director has properly performed its duties for

the purposes of section 1224N.

Note:

A CCIV's constitution may provide for the corporate director to be

indemnified for liabilities--see section 1224N.

Extended liability for acts of agents

(2) If:

(a) the corporate director appoints an agent, or otherwise

engages a person, under section 1224L; or

(b) an agent or person is taken under subsection 1224L(2) (about

sub-agents) to be an agent of the corporate director;

the corporate director is taken to have done (or failed to do)

anything that the agent or person has done (or failed to do) because

of the appointment or engagement, even if the person or agent was

acting fraudulently or outside the scope of the authority or

engagement.

Note:

This subsection does not apply to receivers: see section 1236F.

1224N Retail CCIV--limitation on right of corporate director to

fees and indemnities

If the corporate director of a retail CCIV is to have any rights to be

paid fees out of assets of a sub-fund of the CCIV, or to be

indemnified out of assets of a sub-fund of the CCIV for liabilities

or expenses incurred in relation to the performance of its duties,

those rights:

(a) must be specified in the CCIV's constitution; and

(b) must be available only in relation to the proper performance

of those duties;

and any other agreement or arrangement has no effect to the extent

that it purports to confer such a right.

Note 1:

ASIC may direct the CCIV to modify its constitution to ensure such

rights are dealt with in adequate detail: see subsection 1223C(2).

Note 2:

Sections 199A to 199C may prohibit giving an indemnity for the

corporate director of a CCIV. Those sections have extended operation

in relation to a CCIV: see section 1225E.

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1224P Retail CCIV--limitation on right of corporate director to

acquire shares in CCIV

(1) The corporate director of a retail CCIV may acquire and hold a

share in the CCIV, but the corporate director must only do so:

(a) for not less than the consideration that would be payable if

the share were acquired by another person; and

(b) subject to terms and conditions that would not disadvantage

other members.

Note:

If the corporate director holds a share in the CCIV, the corporate

director does so subject to section 253E, as affected by section 1228G

(certain members cannot vote or be counted).

(2) A corporate director who contravenes subsection (1), and any

person who is involved in a corporate director's contravention of

that subsection, contravenes this subsection.

Note 1:

Section 79 defines involved.

Note 2:

This subsection is a civil penalty provision (see section 1317E).

(3) A person must not intentionally be involved in a corporate

director's contravention of subsection (1).

1224Q Exercise of powers while sub-fund is in liquidation

Powers of corporate director while sub-fund in liquidation

(1) The corporate director of a CCIV contravenes this subsection if:

(a) a sub-fund of the CCIV is being wound up, or a provisional

liquidator of a sub-fund of the CCIV is acting; and

(b) the corporate director purports to do any of the following:

(i) carry on the business of the sub-fund;

(ii) enter into a transaction or dealing on behalf of the CCIV

affecting the property of the sub-fund.

(2) However, subsection (1) does not apply to the extent that the

corporate director is acting:

(a) with the written approval of the liquidator of the sub-fund or

the Court; or

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(b) in circumstances in which, despite the fact that the sub-fund

is being wound up, the corporate director is permitted by this

Act to act.

(3) Despite subsection 13.3(3) of the

Criminal Code

, in a prosecution

for an offence based on subsection (1) of this section, a defendant

does not bear an evidential burden in relation to the matter in

paragraph (2)(b).

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1).

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (1).

Functions and powers of liquidator prevail in case of conflict

(6) If subsection (2) applies and there is a conflict between a function

or power of the liquidator of the sub-fund and a function or power

of the corporate director in relation to the CCIV, the liquidator's

function or power prevails.

Effect of section

(7) This section does not remove the corporate director of a CCIV

from office.

(8) Nothing in this section affects a secured creditor's right to realise

or otherwise deal with the security interest.

(9) Section 198G does not apply to a CCIV.

(10) A provision of this Act that applies despite section 198G also

applies despite this section.

Definitions

(11) In this section:

liquidator

includes a provisional liquidator.

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Subdivision C--Replacing the corporate director

1224R Changes only take effect when ASIC alters record of

registration

Despite anything in this Subdivision, the company named in

ASIC's record of registration as the corporate director or

temporary corporate director of a CCIV remains the CCIV's

corporate director until the record is altered to name another

company as the CCIV's corporate director or temporary corporate

director.

1224S CCIV does not have an eligible corporate director

If a CCIV does not have a corporate director that meets the

requirements of section 1224F, an application to the Court for the

appointment of a temporary corporate director of the CCIV under

section 1224V may be made by any of the following:

(a) ASIC;

(b) a member, or group of members, of the CCIV.

1224T Retirement of corporate director

(1) If the corporate director of a CCIV wants to retire as corporate

director, it must call a members' meeting to explain its reason for

wanting to retire and to enable the members to vote on a resolution

to choose a company to be the new corporate director. The

resolution must be a special resolution.

(2) The notice of meeting of the CCIV's members must:

(a) set out the corporate director's reason for wanting to retire;

and

(b) nominate as the new corporate director a company (the

nominated company

) that:

(i) meets the requirements of section 1224F; and

(ii) has consented in writing to being chosen as the new

corporate director of the CCIV.

(3) If the members choose the nominated company to be the new

corporate director, as soon as practicable and in any event within 2

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business days after the day of the meeting, the current corporate

director must lodge a notice with ASIC asking it to alter the record

of the CCIV's registration to name the nominated company as the

corporate director of the CCIV.

(4) If:

(a) the members choose the nominated company to be the new

corporate director; and

(b) the current corporate director does not lodge the notice

required by subsection (3);

the nominated company may lodge that notice.

(5) An offence based on subsection (3) is an offence of strict liability.

(6) If the members do not choose the nominated company to be the

new corporate director, an application to the Court for appointment

of a temporary corporate director under section 1224V may be

made by the current corporate director of the CCIV.

1224U Replacement of corporate director by members

(1) If members of a CCIV want to replace the corporate director, the

members may take action under Part 2G.4 (as that Part applies to

the CCIV under section 1228A) for the calling of a meeting of the

CCIV's members to consider and vote on:

(a) a special resolution that the current corporate director should

be removed; and

(b) a special resolution choosing a company to be the new

corporate director.

(2) The notice of meeting of the CCIV's members must:

(a) set out the intention to remove the current corporate director;

and

(b) nominate, as the new corporate director of the CCIV, a

company that:

(i) meets the requirements of section 1224F; and

(ii) has consented in writing to being appointed as the new

corporate director of the CCIV.

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(3) If both resolutions are passed, the CCIV is taken, on the day of the

meeting, to have appointed the company nominated in the notice as

the new corporate director of the CCIV.

Note:

See also section 1224R (when changes take effect).

(4) The current corporate director must, as soon as practicable and in

any event within 2 business days after the appointment, lodge a

notice with ASIC asking it to alter the record of the CCIV's

registration to name the company as the corporate director of the

CCIV.

(5) If the current corporate director does not lodge the notice required

by subsection (4), the company chosen by the members to be the

new corporate director may lodge that notice.

(6) An offence based on subsection (4) is an offence of strict liability.

1224V Appointment of temporary corporate director by Court

(1) On application under section 1224S or subsection 1224T(6) or

1224X(2), the Court may:

(a) if the CCIV has a current corporate director--order the

removal of the current corporate director; and

(b) order the appointment of a company as the temporary

corporate director of the CCIV; and

Note:

See also section 1224R (when changes take effect).

(2) The Court must not make an order under paragraph (1)(a) or (b)

unless:

(a) the Court is satisfied that:

(i) the appointment is in the interests of the members of the

CCIV; and

(ii) the company meets the requirements of section 1224F;

and

(b) the company consents in writing to becoming the CCIV's

temporary corporate director.

(3) The person who made the application for the order must, as soon as

practicable and in any event within 2 days after the Court's order

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appointing the temporary corporate director, lodge a notice with

ASIC informing ASIC of the appointment made by the Court.

(4) If the person referred to in subsection (3) does not lodge the notice

required by that subsection, the company appointed by the Court as

the temporary corporate director may lodge that notice.

(5) An offence based on subsection (3) is an offence of strict liability.

1224W Temporary corporate director to initiate appointment of

permanent corporate director

(1) This section applies if the Court appoints a temporary corporate

director of a CCIV under section 1224V.

(2) The temporary corporate director must, within the period

applicable under subsection (3), call a members' meeting for the

purpose of the members, by special resolution, choosing a

company to be the new permanent corporate director.

(3) The temporary corporate director must call the meeting within:

(a) unless paragraph (b) applies--3 months of the appointment;

(b) if the Court has extended the period under subsection (4)--

the extended period.

(4) The Court may, on application by the temporary corporate director,

grant an extension of the period referred to in paragraph (3)(a).

(5) The temporary corporate director may, within the period applicable

under subsection (3), call further meetings of the CCIV's members

to consider and vote on a special resolution choosing a company to

be the permanent corporate director.

(6) For the purposes of subsections (2) and (5), the written notice of

the meeting must nominate as the permanent corporate director a

company (which may be the temporary corporate director) that:

(a) meets the requirements of section 1224F; and

(b) has consented in writing to being appointed as the permanent

corporate director of the CCIV.

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(7) If the resolution is passed, the CCIV is taken, on the day of the

meeting, to have appointed the company nominated in the notice as

the permanent corporate director of the CCIV.

Note:

See also section 1224R (when changes take effect).

(8) The current corporate director must, as soon as practicable and in

any event within 2 business days after the appointment, lodge a

notice with ASIC asking it to alter the record of the CCIV's

registration to name the company as the corporate director of the

CCIV.

(9) If the current corporate director does not lodge the notice required

by subsection (8), the company chosen by the members to be the

new corporate director may lodge that notice.

(10) An offence based on subsection (2) or (8) is an offence of strict

liability.

1224X Temporary corporate director fails to initiate appointment of

permanent corporate director

(1) This section applies if:

(a) a temporary corporate director is appointed by the Court

under section 1224V; and

(b) the temporary corporate director fails to call a members'

meeting to consider and vote on a special resolution choosing

a company to be the permanent corporate director within the

period applicable under subsection 1224W(3).

(2) An application to the Court for the appointment of a temporary

corporate director of the CCIV under section 1224V may be made

by any of the following:

(a) ASIC;

(b) a member, or group of members, of the CCIV.

1224Y Members fail to appoint permanent corporate director

(1) This section applies if:

(a) a temporary corporate director is appointed by the Court

under section 1224V; and

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(b) within the period applicable under subsection 1224W(3), the

temporary corporate director calls one or more members'

meetings to consider and vote on a special resolution

choosing a company to be the permanent corporate director;

and

choosing a permanent corporate director.

(2) An application to the Court for a winding up of all the sub-funds of

the CCIV must be made by the corporate director of the CCIV.

Note:

For provisions about winding up a sub-fund of a CCIV, see Division 5

of Part 8B.6.

(3) An application to the Court for a winding up of all the sub-funds of

the CCIV may be made by any of the following, if the corporate

director does not do so:

(a) ASIC;

(b) a member, or group of members, of the CCIV.

(4) On an application under this section, the Court may:

(a) order the winding up of all the sub-funds of the CCIV; and

(b) make any further orders that the Court considers appropriate.

1224Z Former corporate director to hand over books and provide

reasonable assistance

(1) If the corporate director of a CCIV changes, the former corporate

director must:

(a) as soon as practicable give the new corporate director any

books in the former corporate director's possession or control

that this Act requires to be kept in relation to the CCIV; and

(b) give other reasonable assistance to the new corporate director

to facilitate the change of corporate director.

(2) An offence based on subsection (1) is an offence of strict liability.

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1224ZA Rights, obligations and liabilities of former corporate

director

(1) If the corporate director of a CCIV changes, the rights, obligations

and liabilities of the former corporate director in relation to the

CCIV become rights, obligations and liabilities of the new

corporate director.

(2) Despite subsection (1), the following rights and liabilities remain

rights and liabilities of the former corporate director:

(a) any right of the former corporate director to be paid fees for

the performance of its functions before it ceased to be the

corporate director;

(b) any right of the former corporate director to be indemnified

for expenses it incurred before it ceased to be the corporate

director;

director had as a member of the CCIV;

(d) any liability for which the former corporate director could

not have been indemnified out of the assets of the CCIV if it

had remained the CCIV's corporate director;

(e) any liability arising out of a contravention by the former

corporate director of a provision of this Act.

1224ZB Effect of change of corporate director on documents etc. to

which former corporate director is party

(1)

If the corporate director of a CCIV changes, a document relating to

the CCIV:

(a) to which the former corporate director is a party, in which a

reference is made to the former corporate director, or under

which the former corporate director has acquired or incurred

a right, obligation or liability, or might have acquired or

incurred a right, obligation or liability if it had remained the

corporate director; and

(b) that is capable of having effect after the change;

has effect as if the new corporate director (and not the former

corporate director) were a party to it, were referred to in it or had

or might have acquired or incurred the right, obligation or liability

under it.

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(2) Subsection (1) does not apply to a right, obligation or liability that

remains a right, obligation or liability of the former corporate

director because of subsection 1224ZA(2).

Subdivision D--Termination payments

1224ZC Member approval not needed for benefit specified in

constitution

Despite subsection 200AB(1), for the purposes of Division 2 of

Part 2D.2, a

benefit

does not include a payment made by the CCIV

to its corporate director if:

(a) the corporate director is entitled to the payment under

provisions of the constitution; and

(b) for a retail CCIV--the provisions comply with section

1224N.

1224ZD Modified member approval for CCIVs

(1) Sections 200B and 200C apply in relation to a benefit given by a

CCIV as if:

(a) the members whose approval is required under those

provisions were the members of the sub-fund of the CCIV

that would be affected by the giving of the benefit; and

(b) the member approval mentioned in paragraph (a) were

required to be given under section 200E as modified by

subsection (3) of this section.

Note:

If the CCIV is a retail CCIV, there are additional restrictions on giving

benefits: see section 1224N.

(2) If the giving of the benefit would affect 2 or more sub-funds of the

CCIV, then the approval of each affected sub-fund must be

obtained in the way mentioned in subsection (1).

Member approval

(3) Section 200E applies in relation to a CCIV as if a reference to a

general meeting were instead a reference to a meeting of the

members of the affected sub-fund.

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1224ZE Benefits paid to corporate director not covered by

exemptions

To avoid doubt, a benefit that is a payment to the corporate director

of a CCIV is not a benefit to which paragraph 200F(1)(a),

subsection 200F(2), or section 200G applies.

Division 3--Officers, employees and auditors of the

corporate director

Subdivision A--Officers and auditors of the corporate director

1225 Retail CCIV--duties owed by officers of corporate director

(1) An officer of the corporate director of a retail CCIV must, in

performing functions and exercising powers relating to the CCIV:

(a) act honestly; and

(b) exercise the degree of care and diligence that a reasonable

person would exercise in the officer's position; and

there is a conflict between the interests of those members and

the interests of the corporate director, give priority to the

members' interests; and

(d) act in the best interests of the members, as a whole, of each

sub-fund of the CCIV and:

(i) if there is a conflict between the interests of the

members, as a whole, of a sub-fund and the interests of

the corporate director, give priority to the members'

interests; and

(ii) if there is a conflict between the interests of the

members, as a whole, of a sub-fund and the best

interests of the members of the CCIV, give priority to

the interests of the members of the CCIV; and

(e) not make use of information acquired through being an

officer of the corporate director in order to:

(i) gain an improper advantage for the officer or another

person; or

(ii) cause detriment to the members of the CCIV; and

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(f) not make improper use of their position as an officer to gain,

directly or indirectly, an advantage for themselves or for any

other person or to cause detriment to the members of the

CCIV; and

(g) take all steps that a reasonable person would take, in the

officer's position, to ensure that the corporate director

complies with:

(i) this Act; and

(ii) any conditions imposed on the corporate director's

Australian financial services licence; and

(iii) the CCIV's constitution; and

(iv) the CCIV's compliance plan.

Note:

This subsection is a civil penalty provision (see section 1317E).

(2) A person must not intentionally or recklessly contravene, or be

involved in a contravention of, subsection (1).

Duties under this section prevail in case of conflict

(3) If there is a conflict between a duty owed by an officer of the

corporate director of a retail CCIV under this section and a duty

owed by the officer under Part 2D.1, the duty owed under this

section prevails.

Interaction with other laws etc.

(4) Subsection (1):

(a) has effect in addition to, and not in derogation of, any rule of

law relating to the duty or liability of a person because of

their office or employment in relation to a corporation; and

(b) does not prevent the commencement of civil proceedings for

a breach of a duty or in respect of a liability referred to in

paragraph (a).

1225A Responsibility of secretary of corporate director for certain

contraventions by CCIV

A secretary of the corporate director of a CCIV contravenes

subsection 188(1) if the CCIV contravenes a corporate

responsibility provision.

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Note:

Subsection 188(1) is a civil penalty provision (see section 1317E).

1225B Responsibility of secretary of corporate director for certain

contraventions by corporate director

For the purposes of subsection 188(1) as it applies to the secretary

of the corporate director, the provisions identified in column 1 of

the following table, in addition to the provisions mentioned in

subsection 188(1), are taken to be

corporate responsibility

provisions

Provisions that are taken to be corporate responsibility provisions

Item

Column 1

Provision(s)

Column 2

Topic

(a) subsection 1222L(3);

(b) subsection 1222L(7)

notifying ASIC of status as a retail CCIV

or wholesale CCIV

(a) subsection 1223C(5);

(b) subsection 1223D(3)

lodgement of modified or replaced

constitution and notifying ASIC when

changes takes effect

(a) subsection 1224T(3);

(b) subsection 1224U(4);

lodgement of notices about the corporate

director of a CCIV

(a) subsection 1226(3);

(b) subsection 1226D(4);

lodgement of compliance plans etc.

(retail CCIV only)

subsection 1226G(4)

lodgement of report of auditor of

compliance plan (retail CCIV only)

subsection 1226K(1)

notifying ASIC when auditor of

compliance plan changes (retail CCIV

only)

subsection 1230J(5)

lodgement of a redemption offer

subsection 1230J(8)

notifying ASIC of the cancellation of a

redemption offer

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1225C Extended obligation of directors of corporate director

(1) For the purposes of Division 2 of Part 2D.1, a material personal

interest in a matter that relates to the affairs of a CCIV is treated as

being a material personal interest in a matter that relates to the

affairs of the corporate director of the CCIV.

Note:

The effect of this subsection is that Division 2 of Part 2D.1 applies to

directors of the corporate director of a CCIV in relation to material

personal interests those directors have in matters relating to the affairs

of the CCIV.

(2) Subsection (1) does not affect the operation of Division 2 of

Part 2D.1 in relation to an interest that, apart from that subsection,

is a material personal interest in a matter that relates to the affairs

of the corporate director.

(3) For an offence based on subsection 191(1), as it applies to the

director of a corporate director as a result of subsection (1) of this

section, strict liability applies to the circumstance, that the director

of the corporate director has a material personal interest in a matter

that relates to the affairs of the CCIV.

(4) For the purposes of determining under subsection 191(2) whether

the director does not need to give notice of the interest, references

in that subsection to the company are taken to be references to the

CCIV, unless the reference is to the director's position as director,

or officer, of the company.

(5) Nothing in this section limits:

(a) the effect sections 191 and 192 have in relation to the

director of the corporate director apart from this Subdivision;

(b) the effect section 193 has in relation to sections 191 and 192

as those sections apply as a result of this section.

Note:

Section 193 is about the interaction of sections 191 and 192 with other

laws etc.

1225D Right of access to CCIV books

(1) Section 198F applies in relation to a director of a corporate director

of a CCIV as if the person were a director of the CCIV.

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(2) For the purposes of subsection (1), a person is taken to cease being

a director of the CCIV if either of the following occurs:

(a) the person ceases to be a director of the corporate director;

(b) the company of which the person is a director ceases to be

the corporate director of the CCIV.

1225E Extended operation of sections 199A and 199B (about

indemnities and insurance)

(1) The operation of sections 199A and 199B in relation to a CCIV

and a related body corporate of a CCIV is extended by:

(a) treating an officer of the corporate director of the CCIV as an

officer of the CCIV; and

(b) treating an auditor of the corporate director of the CCIV as an

auditor of the CCIV.

Note:

If the CCIV is a retail CCIV, there are additional restrictions: see

section 1224N.

(2) For the purposes of subsection (1), section 199B applies to a CCIV

as if paragraph 199B(1)(b) included a reference to section 1225.

Note:

For the duties relevant to the actual director of the CCIV, see

subsection 1224D(8).

Subdivision B--Employees of the corporate director

1225F Retail CCIV--duties owed by employees of corporate

director

(1) An employee of the corporate director of a retail CCIV must not, in

performing functions and exercising powers relating to the CCIV:

(a) make use of information acquired through being an employee

of the corporate director in order to:

(i) gain an improper advantage for the employee or another

person; or

(ii) cause detriment to members of the CCIV; or

(b) make improper use of their position as an employee to gain,

directly or indirectly, an advantage for themselves or for any

other person or to cause detriment to the members of the

CCIV.

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Note:

This subsection is a civil penalty provision (see section 1317E).

(2) A person must not intentionally or recklessly contravene, or be

involved in a contravention of, subsection (1).

Duties under this section prevail in case of conflict

(3) If there is a conflict between a duty owed by an employee of the

corporate director of a retail CCIV under this section and a duty

owed by the employee under Part 2D.1, the duty owed under this

section prevails.

Interaction with other laws etc.

(4) Subsection (1):

(a) has effect in addition to, and not in derogation of, any rule of

law relating to the duty or liability of a person because of

their office or employment in relation to a corporation; and

(b) does not prevent the commencement of civil proceedings for

a breach of a duty or in respect of a liability referred to in

paragraph (a).

Division 4--Compliance plan for retail CCIVs

Subdivision A--Documenting the compliance plan

1226 Requirement for compliance plan

(1) A retail CCIV must have a compliance plan.

Note:

A copy of the compliance plan must be lodged with ASIC with the

application to register a CCIV that is to be a retail CCIV: see

subsection 1222A(6).

(2) A wholesale CCIV is not required to have a compliance plan.

(3) A CCIV must lodge a copy of its compliance plan with ASIC

within 14 days of becoming a retail CCIV. The copy must be

signed by all the directors of the corporate director.

Note:

Section 1222J defines

retail CCIV

(4) An offence based on subsection (3) is an offence of strict liability.

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1226A Contents of the compliance plan

The compliance plan of a retail CCIV must set out adequate

measures that the corporate director is to apply in fulfilling its

responsibilities in relation to the CCIV to ensure compliance with

this Act and the CCIV's constitution.

1226B Compliance plan may incorporate provisions from another

CCIV's plan

(1) The compliance plan of a retail CCIV may be expressed to

incorporate specified provisions of a compliance plan of another

CCIV, provided both CCIVs have the same corporate director. The

provisions may be incorporated as in force at a specified time, or as

in force from time to time.

(2) The specified provisions, as in force at the specified time, or as in

force from time to time (as the case requires) are taken to be

included in the plan.

1226C ASIC may require further information about compliance

plan

(1) ASIC may give the corporate director of a retail CCIV a direction,

in writing, to give ASIC information about the arrangements

contained in the compliance plan. The direction must specify the

period (which must be at least 14 days after the direction is given)

within which the corporate director must give the information.

(2) The corporate director must comply with the direction within the

period specified.

(3) An offence based on subsection (2) is an offence of strict liability.

1226D Changing the compliance plan

Corporate director's powers

(1) The corporate director of a CCIV may modify the CCIV's

compliance plan or repeal it and replace it with a new compliance

plan.

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ASIC may require modifications

(2) ASIC may give the corporate director of a retail CCIV a direction,

in writing, to modify the CCIV's compliance plan, as set out in the

direction, to ensure that the plan is consistent with section 1226A.

The direction must specify the period (which must be at least 14

days after the direction is given) within which the corporate

director must make the modification.

(3) The corporate director must comply with the direction within the

period specified.

Lodgement of modification or new plan

(4) The corporate director must lodge with ASIC a copy of a

modification of the CCIV's compliance plan or of a new

compliance plan within 14 days after the modification is made or

the old plan is repealed. The copy must be signed by all the

directors of the corporate director.

(5) An offence based on subsection (3) or (4) is an offence of strict

liability.

1226E ASIC may require consolidation of compliance plan to be

lodged

(1) ASIC may give the corporate director of a retail CCIV a direction,

in writing, to lodge a consolidated copy of the CCIV's compliance

plan with ASIC. The direction must specify the period (which must

be at least 14 days after the direction is given) within which the

corporate director must lodge the consolidation.

(2) The consolidation must set out:

(a) the plan as modified to the time of lodgement; and

(b) if required by ASIC's direction--the full text of provisions

taken to be included in the plan by subsection 1226B(2).

(3) The corporate director must comply with the direction within the

period specified in the notice.

(4) An offence based on subsection (3) is an offence of strict liability.

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Subdivision B--Auditing the compliance plan

1226F Engaging auditor

(1) The corporate director of a retail CCIV must ensure that at all

times a registered company auditor, an audit firm or an authorised

audit company is engaged to audit compliance with the CCIV's

compliance plan in accordance with this section. This auditor, firm

or company is referred to as the

auditor of the compliance plan

(2) An offence based on subsection (1) is an offence of strict liability.

(3) A person is not eligible to act as the individual auditor, lead auditor

or review auditor of a CCIV's compliance plan if the person is:

(a) the corporate director; or

(b) an associate of the corporate director; or

CCIV; or

(d) an associate of a person covered by paragraph (c); or

(e) the auditor of the corporate director's financial statements.

(4) However:

(a) the auditor of the compliance plan and the auditor of the

corporate director's financial statements may work for the

same firm of auditors or audit company; and

(b) the lead auditor or review auditor of the compliance plan (on

the one hand) and the lead auditor or review auditor of the

corporate director's financial statements (on the other hand)

may work for the same firm of auditors or audit company.

(5) This Subdivision does not prevent the corporate director from

arranging for the auditor of the compliance plan to carry out audits

in addition to those required by this Subdivision.

1226G Audit and audit report

(1) Within 3 months after the end of a financial year of the retail

CCIV, the auditor of the compliance plan must:

(a) examine the CCIV's compliance plan; and

(b) carry out:

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(i) if the CCIV has only had one corporate director during

the financial year--an audit of the corporate director's

compliance with the compliance plan during the

financial year; or

(ii) if the CCIV has had more than one corporate director

during the financial year--an audit of each corporate

director's compliance with the compliance plan during

that part of the financial year when it was the CCIV's

corporate director; and

states whether, in the auditor's opinion:

(i) the corporate director, or each corporate director,

complied with the CCIV's compliance plan during the

financial year or that part of the financial year when it

was the CCIV's corporate director; and

(ii) the plan continues to meet the requirements of this

Division.

(2) The auditor of the compliance plan:

(a) has a right of access at all reasonable times to the books of

the CCIV; and

(b) may require an officer of the corporate director to give the

auditor information and explanations for the purposes of the

audit.

(3) An officer of the corporate director must:

(a) allow the auditor of the compliance plan to have access to the

books of the CCIV; and

(b) give the auditor information or an explanation required under

subsection (2); and

(4) The corporate director must lodge the auditor's report under

subsection (1) with ASIC at the same time as the financial

statements and reports in respect of the CCIV are to be lodged with

ASIC (see sections 292, 319 and 1232C).

(5) The auditor of the compliance plan has qualified privilege in

respect of:

(a) a statement made in a report under subsection (1); or

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(b) a notification to ASIC under any of the following:

(i) paragraph 1226H(1)(c);

(ii) paragraph 1226H(2)(c);

(iii) paragraph 1226H(3)(d).

(6) An offence based on subsection (1), (3) or (4) is an offence of strict

liability.

1226H Contraventions by auditor

Contravention by individual auditor

(1) An individual auditor conducting an audit of a compliance plan

contravenes this subsection if:

(a) the auditor is aware of circumstances that:

(i) the auditor has reasonable grounds to suspect amount to

a contravention of this Act; or

(ii) amount to an attempt, in relation to the audit, by any

person to unduly influence, coerce, manipulate or

mislead a person involved in the conduct of the audit

(see subsection (7)); or

(iii) amount to an attempt, by any person, to otherwise

interfere with the proper conduct of the audit; and

(b) if subparagraph (a)(i) applies:

(i) the contravention is a significant one; or

(ii) the contravention is not a significant one and the auditor

believes that the contravention has not been or will not

be adequately dealt with by commenting on it in the

auditor's report or bringing it to the attention of the

directors; and

circumstances as soon as practicable, and in any case within

28 days, after the auditor becomes aware of those

circumstances.

Contravention by audit company

(2) An audit company conducting an audit of a compliance plan

contravenes this subsection if:

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(a) the lead auditor for the audit is aware of circumstances that:

(i) the lead auditor has reasonable grounds to suspect

amount to a contravention of this Act; or

(ii) amount to an attempt, in relation to the audit, by any

person to unduly influence, coerce, manipulate or

mislead a person involved in the conduct of the audit

(see subsection (7)); or

(iii) amount to an attempt, by any person, to otherwise

interfere with the proper conduct of the audit; and

(b) if subparagraph (a)(i) applies:

(i) the contravention is a significant one; or

(ii) the contravention is not a significant one and the lead

auditor believes that the contravention has not been or

will not be adequately dealt with by commenting on it in

the auditor's report or bringing it to the attention of the

directors; and

circumstances as soon as practicable, and in any case within

28 days, after the lead auditor becomes aware of those

circumstances.

Contravention by lead auditor

(3) A person contravenes this subsection if:

(a) the person is the lead auditor for an audit of a compliance

plan; and

(b) the person is aware of circumstances that:

(i) the person has reasonable grounds to suspect amount to

a contravention of this Act; or

(ii) amount to an attempt, in relation to the audit, by any

person to unduly influence, coerce, manipulate or

mislead a person involved in the conduct of the audit

(see subsection (7)); or

(iii) amount to an attempt, by any person, to otherwise

interfere with the proper conduct of the audit; and

(i) the contravention is a significant one; or

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(ii) the contravention is not a significant one and the person

believes that the contravention has not been or will not

be adequately dealt with by commenting on it in the

auditor's report or bringing it to the attention of the

directors; and

(d) the person does not notify ASIC in writing of those

circumstances as soon as practicable, and in any case within

28 days, after the person becomes aware of those

circumstances.

Significant contraventions

(4) In determining for the purposes of this section whether a

contravention of this Act is a significant one, have regard to:

(a) the level of penalty provided for in relation to the

contravention; and

(b) the effect that the contravention has, or may have, on:

(i) the overall financial position of a sub-fund of the CCIV;

(ii) the adequacy of the information available about the

overall financial position of a sub-fund of the CCIV;

and

(5) Without limiting paragraph (4)(a), a penalty provided for in

relation to a contravention of a provision of Part 2M.2 or 2M.3

includes a penalty for failing to take reasonable steps to comply

with, or to secure compliance with, that provision imposed on each

of the following:

(a) the corporate director, because of the operation of

sections 344 and 1232T;

(b) a director of the corporate director, because of the operation

of sections 344 and 1232T.

Fault-based offence

(6) A person commits an offence if the person contravenes

subsection (1), (2) or (3).

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Person involved in audit

(7) In this section:

person involved in the conduct of an audit

means:

(a) the auditor; or

(b) the lead auditor for the audit; or

(d) a professional member of the audit team for the audit; or

(e) any other person involved in the conduct of the audit.

1226J Removal and resignation of auditors

Removal of auditor by corporate director

(1) The corporate director of a retail CCIV:

(a) must remove the auditor of the compliance plan if the auditor

becomes ineligible under subsection 1226F(3) to act as

auditor of the compliance plan; and

(b) may, with ASIC's written consent, remove the auditor of the

compliance plan.

(2) An offence based on paragraph (1)(a) is an offence of strict

liability.

Resignation of auditor

(3) The auditor of the compliance plan may resign by written notice to

the corporate director if:

(a) the auditor:

(i) applies to ASIC in writing for its consent to the

resignation; and

(ii) gives the corporate director written notice of the

application at or about the same time as applying to

ASIC; and

(b) ASIC consents to the resignation.

(4) As soon as practicable after receiving the application, ASIC must

notify the auditor and the corporate director whether it consents to

the resignation.

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(5) A statement by the auditor in the application or in answer to an

inquiry by ASIC relating to the reasons for the application:

(a) is not admissible in evidence in any civil or criminal

proceedings against the auditor (other than proceedings for a

contravention of section 1308); and

(b) may not be made the ground of a prosecution (other than a

prosecution for a contravention of section 1308), action or

suit against the auditor.

A certificate by ASIC that the statement was made in the

application, or in answer to an inquiry by ASIC, is conclusive

evidence that the statement was so made.

(6) The auditor's resignation takes effect on the later of:

(a) the day (if any) specified in the notice of resignation; or

(b) the day ASIC consents to the resignation; or

1226K Action on change of auditor of compliance plan

(1) If the auditor of the compliance plan of a retail CCIV changes, the

corporate director must, within 7 days and in the prescribed form,

ask ASIC to alter the record of the CCIV's registration to show the

name of the new auditor as the auditor of the CCIV's compliance

plan. ASIC must comply with the request if the change complies

with this Act.

(2) An offence based on subsection (1) is an offence of strict liability.

Division 5--Member protection

Subdivision A--Related party transactions by retail CCIVs to

be approved at sub-fund level

1227 Application of Chapter 2E to retail CCIVs

(1) Subject to this Part, Chapter 2E applies:

(a) to a retail CCIV in the same way as it applies to a public

company; and

(b) to an entity a retail CCIV controls in the same way as it

applies to an entity a public company controls.

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(2) In its application in relation to a retail CCIV, the members whose

interests the rules in Chapter 2E are designed to protect are:

(a) if one sub-fund would be affected by the giving of the

relevant financial benefit to the related party--the members,

as a whole, of that sub-fund; or

(b) if 2 or more sub-funds would be affected by the giving of the

relevant financial benefit to the related party--the members,

as a whole, of each such sub-fund.

(3) Chapter 2E does not apply to a wholesale CCIV.

1227A Need for member approval for financial benefit

(1) Section 208 applies in relation to a retail CCIV as if:

(a) the members whose approval is required to be obtained under

subparagraph 208(1)(a)(i) were the members of the sub-fund

of the CCIV that would be affected by the giving of the

financial benefit; and

(b) the member approval mentioned in paragraph (a) were

required to be given in the way set out in sections 217 to 227

(as modified by this Part).

Note 1:

For the civil and criminal liability of a person involved in a

contravention of section 208 as it applies to a retail CCIV under this

section, see section 209.

Note 2:

For provisions about meetings of members of sub-funds, see section

1228A.

Note 3:

Some kinds of financial benefits are prohibited by sections 199A to

199C. For CCIVs, those sections have an extended application: see

section 1225E.

(2) If the giving of a financial benefit would affect 2 or more

sub-funds of the CCIV, paragraph 208(1)(a) applies as if it

required the CCIV or entity to:

(a) obtain the approval of each affected sub-fund in the way

mentioned in subsection (1) of this section; and

(b) give the benefit within 15 months after the first such approval

is given.

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Exception for certain fees and indemnities payable to corporate

director

(3) Subsection 208(1) does not apply in relation to a financial benefit

if:

(a) the financial benefit is fees, or an indemnity, to be given to

the corporate director by the CCIV; and

(b) the corporate director is entitled to the fees, or the indemnity,

under provisions of the constitution; and

indemnities must be available only in relation to the proper

performance of duties).

1227B Exceptions not available for a retail CCIV

(1) The following provisions of Division 2 of Part 2E.1 do not apply

where the financial benefit is, or is to be, given by a retail CCIV:

(a) section 211 (which deals with remuneration and

reimbursement for an officer or employee);

(b) section 213 (which deals with small amounts given to a

related party);

closely held subsidiary).

(2) Subsection (1) does not affect the application of those provisions

where the financial benefit is, or is to be, given by an entity the

retail CCIV controls.

1227C Requirements for explanatory statement to members

(1) Section 219 applies to a retail CCIV as if:

(a) the requirements in paragraphs 219(1)(c) and (d) applied in

relation to:

(i) the corporate director of the CCIV; and

(ii) each director of the corporate director of the CCIV; and

(b) the requirement in paragraph 219(1)(e) were a requirement to

set out all other information that:

(i) is reasonably required by members in order to decide

whether or not it is in the sub-fund's interests to pass the

proposed resolution; and

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(ii) is known to the corporate director of the CCIV or to any

of the directors of the corporate director of the CCIV.

(2) An example of the kind of information referred to in

paragraph (1)(b) is the kind of information mentioned in

subsection 219(2).

1227D Modified references

Division 3 of Part 2E.1 of Chapter 2E applies in relation to a retail

CCIV as if:

(a) a reference to a general meeting were instead a reference to a

meeting of the members of the affected sub-fund; and

(b) a reference to section 250D were instead a reference to

section 253B.

1227E Related parties of a CCIV

(1) Section 228 does not apply in relation to a CCIV.

Corporate director etc

(2) The following are related parties of a CCIV:

(a) the corporate director of the CCIV;

(b) an entity that controls the corporate director of the CCIV.

Directors and their spouses

(3) The following persons are related parties of a CCIV:

(a) directors of the corporate director of the CCIV;

(b) directors (if any) of an entity that controls the corporate

director of the CCIV;

entity that is not a body corporate--each of the persons

making up the controlling entity;

(d) spouses of the persons referred to in paragraphs (a), (b) and

(c).

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Relatives of directors and spouses

(4) The following relatives of persons referred to in subsection (3) are

related parties of the CCIV:

(a) parents;

(b) children.

Entities controlled by other related parties

(5) An entity controlled by a related party referred to in subsection (2),

(3) or (4) is a related party of the CCIV unless the entity is also

controlled by the CCIV.

Related party in previous 6 months

(6) An entity is a related party of a CCIV at a particular time if the

entity was a related party of the CCIV of a kind referred to in

subsection (2), (3), (4) or (5) at any time within the previous 6

months.

Entity has reasonable grounds to believe it will become related

party in future

(7) An entity is a related party of a CCIV at a particular time if the

entity believes or has reasonable grounds to believe that it is likely

to become a related party of the CCIV of a kind referred to in

subsection (2), (3), (4) or (5) at any time in the future.

Acting in concert with related party

(8) An entity is a related party of a CCIV if the entity acts in concert

with a related party of the CCIV on the understanding that the

related party will receive a financial benefit if the CCIV gives the

entity a financial benefit.

Subdivision B--Rights and remedies of members of a CCIV

1227F Grounds for Court order

In addition to the grounds in section 232, the Court may also make

an order under section 233, in respect of a CCIV, if a matter listed

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in paragraph 232(a), (b) or (c) is contrary to the interests of the

members as a whole of one or more sub-funds of the CCIV.

1227G Orders the Court can make

Court may appoint receiver etc. of any or all of a sub-fund's

property

(1) Paragraph 233(1)(h) has effect in relation to a CCIV as if the

reference in that paragraph to the company's property were instead

a reference to the property of a sub-fund of the CCIV.

Note:

A receiver may only be appointed in relation to property of a

particular sub-fund of a CCIV: see section 1236B.

Order altering constitution

(2) Subsection 233(3) applies to a CCIV as if the reference to

section 136 were instead a reference to:

(a) if the CCIV is a retail CCIV--section 1223D; or

(b) if the CCIV is a wholesale CCIV--the CCIV's constitution.

1227H Applying for and granting leave

(1) For the purposes of subsection 237(3), a person is a third party if

the company is a CCIV and the person is not a related party of the

CCIV.

(2) Paragraph 237(4)(a) does not apply to a CCIV.

Note:

Related party

, in relation to a CCIV, is defined in section 1227E.

1227J Varying and cancelling class rights

In its application to a CCIV whose constitution does not set out the

procedure for varying or cancelling rights attached to shares in a

class of shares, subsection 246B(2) is taken to require a special

resolution of the members of the sub-fund of the CCIV to which

the shares are referable, instead of a special resolution of the

CCIV.

Note:

Paragraphs 246B(2)(c) and (d) will also require either a special

resolution of members of the affected class or the written consent of

members with at least 75% of the votes in the class.

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1227K Certain actions taken to vary rights etc.

If:

(a) a CCIV has a sub-fund to which only one class of shares is

referable (the

existing shares

); and

(b) the CCIV issues new shares that are also referable to that

sub-fund; and

rights attached to the existing shares; and

(d) the rights attaching to the new shares are not provided for in:

(i) the CCIV's constitution; or

(ii) a notice, document or resolution that is lodged with

ASIC;

the issue is taken to vary the rights attached to the existing shares.

1227L Company must lodge documents and resolutions with ASIC

Subsection 246F(3) applies to a CCIV in the same way as it applies

to a public company.

Note:

Failure to comply with subsection 246F(3) is an offence: see

subsection 1311(1) and Schedule 3.

Subdivision C--Civil liability of corporate director to members

1227M Civil liability of corporate director to members

(1) A member of a CCIV who suffers loss or damage because of

conduct of the CCIV's corporate director that contravenes a

provision of this Chapter may recover the amount of the loss or

damage by action against the corporate director whether or not the

corporate director has been convicted of an offence, or has had a

civil penalty order made against it, in respect of the contravention.

(2) An action under subsection (1) must be begun within 6 years after

the cause of action arises.

(3) This section does not affect any liability that a person has under

other provisions of this Act or under other laws.

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Division 6--Meetings

Subdivision A--Directors' meetings

1228 Resolutions of CCIVs

(1) The corporate director of a CCIV may pass a resolution by the

directors of the corporate director passing a resolution that:

(a) expressly states that the resolution is passed on behalf of the

corporate director in its capacity as corporate director; and

(b) if the corporate director is the corporate director of more than

one CCIV--expressly states the CCIV on behalf of which the

resolution is passed.

(2) Part 2G.1 (about directors' meetings) does not apply to a CCIV.

(3) To avoid doubt, subsection (2) does not affect:

(a) the application of Part 2G.1 to a resolution of, or a meeting

of, the directors of the corporate director of a CCIV; or

(b) the application of Part 2G.3 (about minutes and members'

access to minutes) to a resolution passed under

subsection (1).

Subdivision B--Meetings of members of CCIVs or sub-funds

1228A Meetings of members of CCIVs

(1) Parts 2G.2 (about meetings of members of companies) and 2G.3

(about minutes and members' access to minutes) do not apply to a

CCIV or its members.

(2) Subject to the modifications set out in this Subdivision, Part 2G.4

(about meetings of members of registered managed investment

schemes) applies in relation to a CCIV and its members as if:

(a) the CCIV were a registered scheme; and

(b) the members of the CCIV were the members of that scheme;

and

entity of that scheme; and

(d) the CCIV's constitution were the scheme's constitution; and

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(e) the CCIV's compliance plan were the compliance plan of

that scheme.

(3) Any power to prescribe, for the purposes of a provision of

Part 2G.4, a number of members of a particular registered scheme

or class of scheme includes a power to prescribe, for the purposes

of that provision as it applies under this section, a number of

members of:

(a) a particular CCIV; or

(b) a particular class of CCIV.

Note:

Subsections 252B(1A), 252L(1A) and 252N(2A) provide for the

prescribing of numbers of members.

1228B Meetings of members of sub-funds

(1) Subject to the modifications set out in this Subdivision, Part 2G.4

(about meetings of members of registered managed investment

schemes) applies in relation to a sub-fund of a CCIV and the

members of the sub-fund as if:

(a) the sub-fund were a registered scheme; and

(b) the members of the sub-fund were the members of that

scheme; and

entity of that scheme; and

(d) the CCIV's constitution were the scheme's constitution; and

(e) the CCIV's compliance plan were the compliance plan of

that scheme.

(2) Any power to prescribe, for the purposes of a provision of

Part 2G.4, a number of members of a particular registered scheme

or class of scheme includes a power to prescribe, for the purposes

of that provision as it applies under this section, a number of

members of:

(a) a particular sub-fund of a CCIV; or

(b) a particular class of sub-funds of one or more CCIVs.

Note:

Subsections 252B(1A), 252L(1A) and 252N(2A) provide for the

prescribing of numbers of members.

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1228C Auditors of scheme compliance plans

In applying a provision of Part 2G.4 in relation to a wholesale

CCIV, or a sub-fund of a wholesale CCIV, disregard any

application of the provision in relation to the auditor of the scheme

compliance plan.

Note:

Provisions that apply in relation to the auditor of the scheme

compliance plan are subsections 252G(1), 252H(1) and 252T(1).

1228D Copy of the register of members--sub-funds

(1) Subsection 252C(3) does not apply in relation to a CCIV or a

sub-fund of a CCIV.

(2) To call a meeting of the members of a CCIV, the members

requesting the meeting may ask the CCIV under section 173 for a

copy of the register of members.

(3) To call a meeting of the members of a sub-fund of a CCIV, the

members requesting the meeting may ask the CCIV under

section 173 for a copy of so much of the register of members as

relates to membership of the sub-fund.

(4) Despite paragraph 173(3)(b), the CCIV must, without charge, give

the members requesting the meeting:

(a) if subsection (2) of this section applies--the copy of the

(b) if subsection (3) of this section applies--so much of the

sub-fund.

(5) An offence based on subsection (4) is an offence of strict liability.

1228E Members' resolutions

(1) Subsection 252L(1B) applies in relation to a CCIV as if:

(a) the requirement in paragraph 252L(1B)(c) that the registered

scheme be listed did not apply; and

(b) the resolution is subject to a further requirement that it must

not treat members of any sub-fund of the CCIV differently

from members of any other sub-fund of the CCIV.

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Note:

The effect of paragraph (1)(a) is that subsection 252L(1B) will apply

to all CCIVs, including a CCIV that is a listed company.

(2) Subsection 252L(1B) applies in relation to one or more sub-funds

of a CCIV as if:

(a) paragraph 252L(1B)(c) did not apply; and

(b) the resolution is subject to a further requirement that it must

not affect the interests of any member of any other sub-fund

of the CCIV.

Note:

A CCIV that is a listed company has only one sub-fund, see

section 1222N.

1228F Voting at meetings of members

(1) Sections 253C and 253D do not apply in relation to a CCIV or a

sub-fund of a CCIV.

(2) At a meeting of members of a CCIV:

(a) on a show of hands, each member has 1 vote; and

(b) on a poll, each member has 1 vote for each dollar of the value

of the total shares in the CCIV that the member holds; and

member, any vote the chair has in the chair's capacity as a

member; and

(d) if a share is held jointly and more than one member votes in

respect of that share--only the vote of the member whose

name appears first in the register of members counts.

(3) At a meeting of members of a sub-fund of a CCIV:

(a) on a show of hands, each member has 1 vote; and

(b) on a poll, each member has 1 vote for each dollar of the value

of the total shares in the CCIV that:

(i) are held by the member; and

(ii) are referable to the sub-fund; and

member, any vote the chair has in the chair's capacity as a

member; and

(d) if a share that is referable to the sub-fund is held jointly and

more than one member votes in respect of that share--only

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the vote of the member whose name appears first in the

1228G Corporate director and associates cannot vote if interested in

resolution

(1) Section 253E applies in relation to a CCIV as if the associates of

the corporate director of the CCIV were also the CCIV's

associates.

(2) Section 253E applies in relation to a sub-fund of a CCIV as if the

associates of the corporate director of the CCIV, and the CCIV's

associates, were also the sub-fund's associates.

1228H How to work out the value of a share

(1) For the purposes of section 1228F, the value of a share in a CCIV

is the amount worked out under this section.

(2) The value of a share in a CCIV (other than a share to which

subsection (3), (4) or (5) applies) is the amount that the corporate

director of the CCIV determines in writing to be the price that a

willing but not anxious buyer would pay for the share if it was sold

on the business day immediately before the day on which the poll

is taken.

(3) The value of a share in a listed CCIV is the last sale price on the

relevant prescribed financial market on the trading day

immediately before the day on which the poll is taken.

(4) The value of a share in a retail CCIV where:

(a) the CCIV is not listed; and

(b) the share is redeemable; and

applies (about when a sub-fund is liquid);

is the amount that, under the constitution of the CCIV, would be

paid to redeem the share on the business day immediately before

the day on which the poll is taken.

(5) The value of a share in a wholesale CCIV where:

(a) the share is redeemable; and

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(b) the share is referable to a sub-fund to which section 1230H

applies (about when a sub-fund is liquid); and

to be paid for redeeming the share;

is the amount that, under the provision, would be paid to redeem

the share on the business day immediately before the day on which

the poll is taken.

(6) Section 253F does not apply in relation to a CCIV or a sub-fund of

a CCIV.

Division 7--Corporate contraventions

Subdivision A--General provisions relating to establishing civil

and criminal liability under Commonwealth laws

1229 Application of this Subdivision

This Subdivision applies to a CCIV in relation to all laws of the

Commonwealth.

1229A Other rules for corporate contraventions do not apply

Part 2.5 of Criminal Code does not apply

(1) Part 2.5 of the

Criminal Code

does not apply in determining

whether a body corporate that is a CCIV has committed an offence.

Note:

Section 1229B applies instead.

Other rules for corporate contraventions do not apply

(2) A provision of a law of the Commonwealth (other than this

Subdivision) does not apply in relation to a CCIV to the extent the

provision would, apart from this subsection:

(a) treat conduct (however described) engaged in by a person

other than a CCIV as having been engaged in by the CCIV;

(b) treat conduct (however described) engaged in by a person in

relation to another person other than a CCIV as having been

engaged in by the person in relation to the CCIV; or

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other than a CCIV as being sufficient to show that the CCIV

had the state of mind; or

(d) require an element of:

(i) an offence; or

(ii) a provision in relation to a contravention of which a

civil penalty may be imposed;

done by a person other than a CCIV to be attributed to the

CCIV.

Note 1:

Section 1229B applies instead.

Note 2:

For paragraph (a), an example is subsection 769B(1).

Note 3:

For paragraph (b), an example is subsection 769B(2).

Note 4:

For paragraph (c), an example is subsection 769B(3).

Note 5:

For paragraph (d), an example is section 1317QE.

1229B General rule for attributing conduct and state of mind to a

CCIV

Attributing conduct to a CCIV

(1) Conduct engaged in by a person (other than a CCIV) is taken to

have been engaged in also by a CCIV if:

(a) the person is specified in column 1 of an item of the table in

subsection (4) in relation to the CCIV; and

(b) the conduct was engaged in on behalf of the CCIV; and

specified in column 2 of that item of the table.

Attributing conduct to a person in relation to a CCIV

(2) Conduct engaged in by a person in relation to another person (other

than a CCIV) (the

counterparty

) is taken to have also been

engaged in in relation to a CCIV if:

(a) the counterparty is specified in column 1 of an item of the

table in subsection (4) in relation to the CCIV; and

(b) the counterparty was acting on behalf of the CCIV; and

conditions specified in column 2 of that item of the table.

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Note:

For example, money given to a person specified in column 1 of an

item of the table in relation to a CCIV is taken to have been given to

the CCIV, if the person was acting on behalf of the CCIV when they

received the money.

Attributing state of mind to a CCIV

(3) If, for the purposes of a provision of a law of the Commonwealth,

it is necessary to establish a CCIV's state of mind in relation to

particular conduct, it is sufficient to show that:

(a) a person specified in column 1 of an item of the table in

subsection (4) in relation to the CCIV engaged in the conduct

on behalf of the CCIV; and

(b) in engaging in the conduct, the person met any conditions

specified in column 2 of that item of the table; and

Specified persons and applicable conditions

(4) For the purposes of subsections (1), (2) and (3), the table is as

follows:

Persons whose conduct and state of mind may be attributed to a CCIV

Item

Column 1

Person specified for a CCIV:

Column 2

Condition:

An agent of the CCIV (other than an

agent covered by subsection (5))

the agent was acting within the

scope of that agent's actual or

apparent authority in relation to the

CCIV.

A director of the CCIV

no specified conditions.

An employee, director or agent (an

official

) of the corporate director of

the CCIV

the official was acting within the

scope of the official's actual or

apparent authority in relation to the

corporate director.

Any other person acting at the

direction, or with the consent or

agreement (whether express or

implied) of, a person (the

first

person

) specified in another item of

this table in relation to the CCIV

in giving the direction, consent or

agreement, the first person meets

any conditions specified in this

column of the applicable table item.

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(5) For the purposes of item 1 of the table in subsection (4), this

subsection covers the following:

(a) an agent who is, or is appointed by, a receiver, or receiver

and manager, of property of a sub-fund of the CCIV;

(b) an agent who is, or is appointed by, a liquidator or

provisional liquidator of a sub-fund of the CCIV;

administering a compromise or arrangement made between

the CCIV and someone else.

(6) For the purposes of this section, treat a person as acting on behalf

of a CCIV if the person acted on behalf of the corporate director of

the CCIV in its capacity as director of the CCIV.

Interpretation

(7) In this section:

conduct

has the same meaning as it has in section 769B.

state of mind

has the same meaning as it has in section 769B.

1229C Exceptions etc. specific to this Act

Nothing in this Subdivision excludes or limits the operation of

section 1224M.

Subdivision B--Consequences of contraventions of

Commonwealth laws

1229D Corporate director generally taken to commit offences

committed by CCIV

(1) This section applies if:

(a) a CCIV commits an offence against a law of the

Commonwealth; and

(b) the conduct constituting the offence was not engaged in by

the CCIV solely as a result of an exercise of powers by:

(i) a liquidator or provisional liquidator of a sub-fund of

the CCIV; or

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(ii) a receiver, or receiver and manager, of the property of a

sub-fund of the CCIV; or

(iii) a trustee or other person administering a compromise or

arrangement made between the CCIV and someone else.

Corporate director taken to also commit the offence

(2) The person who was the corporate director of the CCIV at the time

of the commission of the offence is taken to also commit the

offence.

(3) To avoid doubt, despite subsection 13.3(3) of the

Criminal Code

, a

person referred to in subsection (2) does not bear an evidential

burden in relation to any matter in subsection (1) of this section.

CCIV not liable for any penalty

(4) The CCIV is not liable for any penalty in respect of the offence.

Infringement notices

(5) If, as a result of the operation of subsection (2), an infringement

notice (however described) may be given under a law of the

Commonwealth to a person who was the corporate director of a

CCIV for an alleged commission of an offence by the person:

(a) the person may be given the infringement notice; and

(b) the CCIV may not be given an infringement notice for the

alleged commission of the offence.

1229E Corporate director generally liable for civil penalties for

which the CCIV would be liable

(1) This section applies if:

(a) a CCIV contravenes a provision covered by subsection (2);

and

(b) the conduct constituting the contravention was not engaged

in by the CCIV solely as a result of an exercise of powers by:

(i) a liquidator or provisional liquidator of a sub-fund of

the CCIV; or

(ii) a receiver, or receiver and manager, of the property of a

sub-fund of the CCIV; or

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(iii) a trustee or other person administering a compromise or

arrangement made between the CCIV and someone else.

Commonwealth civil penalty provisions

(2) This subsection covers a provision (a

Commonwealth civil penalty

provision

) that is:

(a) a civil penalty provision (within the meaning of this Act); or

(b) a provision of a law of the Commonwealth (other than this

Act), if a civil penalty may be imposed in relation to a

contravention of the provision.

Corporate director taken to also contravene the provision

(3) The person who was the corporate director of the CCIV at the time

of the contravention is taken to also contravene the provision.

Note:

This subsection applies whether or not a declaration of contravention

by the CCIV has been made by a Court.

CCIV not liable

(4) The CCIV is not liable for any penalty in respect of the

contravention.

Infringement notices

(5) If, as a result of the operation of subsection (3), an infringement

notice (however described) may be given under a law of the

Commonwealth to a person who was the corporate director of a

CCIV for an alleged contravention by the person of a

Commonwealth civil penalty provision:

(a) the person may be given the infringement notice; and

(b) the CCIV may not be given an infringement notice for the

alleged contravention.

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Subdivision C--Consequences of contraventions of State and

Territory laws

1229F Compensation orders--State and Territory laws

Compensation for penalties incurred etc.

(1) A Court may on application under subsection (5) order a person to

compensate a CCIV for loss or damage suffered by the CCIV if:

(a) the CCIV contravened, or allegedly contravened, a provision

covered by subsection (2); and

(b) the loss or damage is:

(i) a pecuniary penalty to which the CCIV is liable in

respect of the contravention or alleged contravention; or

(ii) an amount paid by the CCIV in settlement of

proceedings in respect of the contravention or alleged

contravention; and

of the contravention or alleged contravention; and

(d) the exception in subsection (3) does not apply.

The order must specify the amount of the compensation.

State and Territory offences and civil penalty provisions

(2) A provision of a law of a State or Territory is covered by this

subsection if a contravention of the provision is an offence, or

subject to a civil penalty.

Exception where liquidator etc. acting

(3) Subsection (1) does not apply if the conduct constituting the

contravention or alleged contravention was engaged in solely as a

result of an exercise of powers by:

(a) a liquidator or provisional liquidator of a sub-fund of the

CCIV; or

(b) a receiver, or receiver and manager, of the property of a

sub-fund of the CCIV; or

arrangement made between the CCIV and someone else.

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Recovery of damage

(4) A compensation order may be enforced as if it were a judgment of

the Court.

Who may apply

(5) An application for a compensation order under this section may be

made by any of the following:

(a) ASIC;

(b) a member of the CCIV;

Other laws not affected

(6) This section does not affect any liability that a person has under

any other law.

1229G Time limit for application for compensation order

Proceedings for a compensation order may be started not later than:

(a) for a proven contravention--6 years after the contravention

was proved; or

(b) for an unproven contravention--6 years after the

contravention or alleged contravention.

1229H Civil evidence and procedure rules for compensation orders

The Court must apply the rules of evidence and procedure for civil

matters when hearing proceedings for a compensation order.

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Part 8B.4--Corporate finance and financial

reporting for CCIVs

Division 1--Shares

Subdivision A--Issuing and converting shares in a CCIV

1230 Shares can only be issued in respect of sub-funds

(1) A CCIV can issue a share only if the rights attaching to the share,

so far as the rights are in respect of the assets of the CCIV, are

restricted to rights in respect of the assets of one (and only one)

sub-fund of the CCIV. This is the sub-fund to which the share is

referable

(2) The sub-fund to which the share is referable does not change if,

after the share is issued, the CCIV acquires the share in respect of

another of its sub-funds.

Note:

For cross-investment between sub-funds, see Subdivision F.

(3) Subsection (1) and regulations made for the purposes of

subsection (5) limit paragraph 124(1)(a) and section 254A in

relation to a CCIV.

Note:

Subsection (1) effectively also limits some other paragraphs of

subsection 124(1), such as paragraph (c) (about granting options over

unissued shares in a company).

(4) A Court must not make an order under section 254E that is

inconsistent with subsection (1) of this section, or regulations made

for the purposes of subsection (5) of this section, unless the Court

considers that the interests of justice require otherwise.

(5) Regulations made for the purposes of this subsection may make

provision for and in relation to further requirements for the issue of

shares by a CCIV.

(6) Without limiting subsection (5), regulations made for the purposes

of that subsection may prescribe requirements for the issue of

shares, or classes of shares, in relation to one or more of the

following:

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(a) all CCIVs;

(b) a specified class of CCIVs;

(d) a specified class of sub-funds of CCIVs;

(e) all sub-funds of a specified class of CCIVs.

1230A Minimum of one class of shares per sub-fund

(1) The shares in a CCIV that are referable to the same sub-fund of the

CCIV, if not divided into 2 or more classes, constitute a class.

Note:

A CCIV can issue shares only if the rights attaching to the shares are

referable to one (and only one) sub-fund of the CCIV: see section

1230.

(2) A class of shares is

referable

to a sub-fund of a CCIV if the shares

in the class are referable to the sub-fund.

Part 2F.2 does not permit variation contrary to this section

(3) Nothing in Part 2F.2 permits rights attached to shares in a class of

shares to be varied or cancelled in a manner that results in a

contravention of this section.

1230B Power to issue redeemable shares

(1) Subject to section 1230, a CCIV's power under section 124 to issue

shares includes the power to issue redeemable shares.

(2) All, some, or none of the shares in a CCIV may be redeemable

shares.

Note:

Subsections (1) and (2) reflect the fact that CCIVs may be open-ended

investment vehicles.

(3) This section operates concurrently with section 254A.

(4) A

redeemable share

, in a CCIV, is a share (other than a preference

share) in a CCIV that is liable to be redeemed at the option of one

or more of the following:

(a) the CCIV;

(b) the member.

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Option to redeem is not a preference

(5) In determining whether a share in a CCIV is a preference share,

any rights attaching to shares in the CCIV with respect to

redemption are to be disregarded.

Note:

As a result, a CCIV may have ordinary shares that are redeemable as

well as ordinary shares that are not redeemable. Preferences relating to

redemption (including preferences relating to who has the option to

redeem) are ignored in determining whether a share is a preference

share.

1230C Conversion of shares

(1) A CCIV may convert a share of any kind into a share of a kind

mentioned in an item in column 1 of the following table if the

requirements (if any) specified in column 2 of the item are met.

Conversion of shares

Item

Column 1

To convert a share into a

share of this kind:

Column 2

These requirements must be met:

An ordinary share (other

than a redeemable share)

No specified requirements (but see Note 1)

A redeemable share

The conversion has been approved by a

special resolution of the sub-fund of the CCIV

to which the share is referable (see also Notes

1 and 2)

A preference share (other

than a redeemable

preference share)

The holders' rights with respect to the matters

mentioned in subsection 254G(2) are set out

in the CCIV's constitution (if any) or have

been otherwise approved by special resolution

of the sub-fund of the CCIV to which the

share is referable (see also Note 1)

Note 1:

The variation of class rights provisions (sections 246B to 246G) will

apply to the conversion.

Note 2:

For a director's duty to prevent insolvent trading on converting shares

into redeemable shares, see sections 588G and 1238C.

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(2) A CCIV may not convert a share into a redeemable preference

share.

(3) A CCIV may convert all or any of its shares into a larger or smaller

number. Any amount unpaid on shares being converted is to be

divided equally among the replacement shares.

(4) This section replaces sections 254G and 254H for a CCIV.

Subdivision B--Redemption of shares

1230D Redemptions to which this Subdivision applies

(1) This Subdivision applies to both of the following:

(a) a redemption by a CCIV of a redeemable share;

(b) a redemption by a CCIV of a redeemable preference share.

Note:

A CCIV may reduce its share capital if the reduction results from a

redemption permitted by this Subdivision: see section 1231D.

(2) Part 2H.2 does not apply to the redemption of redeemable

preference shares in a CCIV.

1230E Redeemed shares to be cancelled

On redemption by a CCIV, a share is cancelled.

1230F Requirements for redemptions by all CCIVs

Redemption must be in accordance with terms of issue

(1) A CCIV must not redeem shares if the redemption is not on the

terms on which the shares are on issue.

Sub-fund must be solvent

(2) A CCIV must not redeem shares if, immediately before the

redemption:

(a) the sub-fund to which the shares are referable is insolvent; or

(b) there are reasonable grounds for suspecting that the sub-fund

to which the shares are referable is insolvent, or would

become insolvent immediately after the redemption.

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Note 1:

For when a sub-fund of a CCIV is

solvent

, or

insolvent

, see section

1231A.

Note 2:

The directors of the corporate director have a duty to prevent insolvent

trading by sub-funds: see section 588G (as modified by Division 6 of

Part 8B.6).

Consequences of contravention

(3) If a CCIV redeems shares in contravention of subsection (1) or (2):

(a) the contravention does not affect the validity of the

redemption or of any contract or transaction connected with

it; and

(b) the CCIV does not commit an offence.

Fault-based offence

(4) A person commits an offence if the person is involved in a CCIV's

contravention of subsection (1) or (2) and the involvement is

dishonest.

Civil liability

(5) A person who is involved in a CCIV's contravention of

subsection (1) or (2) contravenes this subsection.

Note:

This subsection is a civil penalty provision (see section 1317E).

1230G Further requirements for redemptions by retail CCIVs

Redemption must be permitted by constitution

(1) A retail CCIV must not redeem shares if the redemption is not

permitted by the CCIV's constitution.

Redemption price must be in accordance with constitution

(2) A retail CCIV must not redeem shares if:

(a) at the time of the redemption, section 1230H (about when a

sub-fund is liquid) applies to the sub-fund to which the shares

are referable; and

(b) the redemption is not in accordance with the CCIV's

constitution.

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Redemption must comply with sections 1230J and 1230K if

sub-fund is not liquid

(3) A retail CCIV must not redeem shares if:

(a) at the time of the redemption, section 1230H (about when a

sub-fund is liquid) does not apply to the sub-fund to which

the shares are referable; and

(b) any of the following apply:

(i) the CCIV has not offered members an opportunity to

redeem shares under section 1230J;

(ii) the redemption is not made in satisfaction of a

redemption request made in response to the offer;

(iii) the redemption does not comply with section 1230K.

Strict liability offence

(4) An offence based on subsection (1), (2) or (3) is an offence of strict

liability.

Consequences of contravention

(5) If a CCIV redeems shares in contravention of this section, the

contravention does not affect the validity of the redemption or of

any contract or transaction connected with it.

Court orders

(6) If the Court is satisfied, on application under subsection (7), that

the consideration for a redemption of shares by a retail CCIV is not

in accordance with this section, the Court may make any orders the

Court considers appropriate.

(7) An application to the Court for an order under subsection (6) may

be made by any of the following:

(a) ASIC;

(b) the corporate director of the CCIV;

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1230H When a sub-fund is liquid

(1) This section applies to a sub-fund of a CCIV at a time if liquid

assets account for at least 80% of the value of the assets of the

sub-fund at that time.

(2) For the purposes of subsection (1):

(a) the following are liquid assets unless it is proved that the

CCIV

cannot reasonably expect to realise them within the

period specified in the constitution for satisfying redemptions

while the sub-fund is liquid:

(i) money in an account or on deposit with a bank;

(ii) bank accepted bills;

(iii) marketable securities (as defined in section 9);

(iv) property of a kind prescribed by regulations made for

the purposes of this subparagraph; and

(b) any other property is a liquid asset if the corporate director

reasonably expects that the property can be realised for its

market value within the period specified in the constitution

for satisfying redemptions while the sub-fund is liquid.

1230J Redemption offers for non-liquid sub-funds of retail CCIVs

(1) A retail CCIV may offer members an opportunity to redeem shares

in the CCIV if:

(a) section 1230H (about when a sub-fund is liquid) does not

apply to the sub-fund to which the shares are referable; and

(b) the offer is made to the extent that particular assets of the

sub-fund are available and able to be converted to money in

time to satisfy redemption requests that members may make

in response to the offer; and

(2) The redemption offer must:

(a) be in writing; and

(b) if the constitution of the CCIV specifies procedures for

making redemption offers under this section while section

1230H does not apply to the sub-fund--be made in

accordance with those procedures.

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(3) The redemption offer must specify:

(a) the period during which the offer will remain open (this

period must last for at least 21 days after the offer is made);

and

(b) the assets that will be used to satisfy redemption requests;

and

those assets are converted to money; and

(d) the method for dealing with redemption requests if the

money available is insufficient to satisfy all requests.

The method specified under paragraph (d) must comply with

section 1230K.

(4) For joint members, a copy of the redemption offer need only be

given to the joint member named first in the register of members.

(5) As soon as practicable after making the redemption offer, the

CCIV must lodge a copy of the offer with ASIC.

(6) A CCIV that makes a redemption offer under this section:

(a) may cancel a redemption offer before it closes if the offer

contains a material error; and

(b) must cancel a redemption offer before it closes if it is in the

best interests of the members of the sub-fund as a whole to

do so.

(7) If the constitution of the CCIV specifies procedures for cancelling

redemption offers under subsection (6), the cancellation must be

made in accordance with those procedures.

(8) As soon as practicable, and in any event within 2 business days,

after the cancellation, the CCIV must lodge written notice of the

cancellation with ASIC.

Strict liability offence

(9) An offence based on subsection (5) or (8) is an offence of strict

liability.

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1230K Satisfying redemption requests for non-liquid sub-funds of

retail CCIVs

(1) A retail CCIV that makes a redemption offer under section 1230J

must ensure that redemption requests made in response to the offer

are satisfied within 21 days after the offer closes.

(2) No request made under the redemption offer may be satisfied while

the offer is still open.

(3) If an insufficient amount of money is available from the assets

specified in the offer to satisfy all requests, the requests are to be

satisfied proportionately in accordance with the formula:

Amount shareholder requested to redeem

Amount of money

available

Total of all amounts shareholders request to redeem



Subdivision C--Partly-paid shares

1230L Section 254N does not apply to a CCIV

Section 254N does not apply to a CCIV.

Subdivision D--Dividends

1230M Circumstances in which a dividend may be paid

(1) A CCIV must not pay a dividend on a share if, immediately before

the dividend is paid:

(a) the sub-fund to which the share is referable is insolvent; or

(b) there are reasonable grounds for suspecting that the sub-fund

to which the share is referable is insolvent, or would become

insolvent immediately after the dividend is paid.

Note 1:

For when a sub-fund of a CCIV is

solvent

, or

insolvent

, see section

1231A.

Note 2:

The directors of the corporate director have a duty to prevent insolvent

trading by sub-funds: see section 588G (as modified by Division 6 of

Part 8B.6).

(2) Section 254T does not apply to a CCIV.

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1230N Dividend rights

Each share in a class of shares in a CCIV has the same dividend

rights unless:

(a) the CCIV's constitution provides for the shares to have

different dividend rights; or

(b) different dividend rights are provided for by special

resolution of the sub-fund to which the shares are referable.

Subdivision E--Notice requirements

1230P Part 2H.6 does not apply to a CCIV

Part 2H.6 does not apply to a CCIV.

Subdivision F--Cross-investment between sub-funds of a CCIV

1230Q Cross-investment between sub-funds is permitted

(1) Despite any law, a CCIV may acquire in respect of any of its

sub-funds, one or more shares that are referable to another of its

sub-funds.

Note:

Requirements or restrictions may apply, see section 1230R.

(2) To avoid doubt, a law referred to in subsection (1) includes:

(a) any written law; or

(b) any unwritten law such as a principle or rule of common law

or equity;

that is or has been in force anywhere in Australia or elsewhere.

1230R Requirements or restrictions for cross-investment

(1) Regulations made for the purposes of this subsection may prescribe

either or both of the following:

(a) one or more requirements for a CCIV to make an acquisition

mentioned in subsection 1230Q(1);

(b) one or more restrictions on a CCIV making an acquisition

mentioned in subsection 1230Q(1).

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(2) Without limiting subsection (1), regulations made for the purposes

of that subsection may prescribe requirements or restrictions in

relation to one or more of the following:

(a) all CCIVs;

(b) a specified class of CCIVs;

(d) a specified class of sub-funds of CCIVs;

(e) all sub-funds of a specified class of CCIVs.

1230S Consequences for failing to comply with requirements or

restrictions for cross-investment

(1) A CCIV to which regulations made for the purposes of subsection

1230R(1) apply in relation to an acquisition must comply with any

applicable requirements or restrictions in those regulations.

Consequences for CCIV of contravention

(2) If a CCIV contravenes subsection (1):

(a) the contravention does not affect the validity of the

acquisition or of any contract or transaction connected with

it; and

(b) the CCIV does not commit an offence.

Fault-based offence

(3) A person commits an offence if the person is involved in a CCIV's

contravention of subsection (1) and the involvement is dishonest.

Civil liability

(4) A person who is involved in a CCIV's contravention of

subsection (1) contravenes this subsection.

Note 1:

This subsection is a civil penalty provision (see section 1317E).

Note 2:

There are other possible consequences for such a contravention,

including the suspension or cancellation of an Australian financial

services licence held by the CCIV's corporate director (see

paragraph 915C(1)(a)).

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1230T Requirements or restrictions on membership rights for

shares acquired from cross-investment

Voting at a meeting of the CCIV's members

(1) Despite any other provision of this Act, a CCIV's acquisition

mentioned in subsection 1230Q(1) of one or more shares referable

to one of its sub-funds does not entitle the CCIV to vote as a

member on a resolution at a meeting of the CCIV's members.

Voting at a meeting of members of a sub-fund of the CCIV

(2) A CCIV's acquisition mentioned in subsection 1230Q(1) of one or

more shares referable to one of its sub-funds entitles the CCIV to

vote as a member on a resolution at a meeting of the members of

the sub-fund.

(3) A CCIV's entitlement to vote as described in subsection (2)

applies:

(a) despite any other provision of this Act; but

(b) subject to any requirements or restrictions prescribed by

regulations made for the purposes of this paragraph.

1230U Cross-investment between sub-funds is not a share buy-back

For the purposes of section 1231C and Division 2 of Part 2J.1, the

acquisition by a CCIV of any of its shares is not a buy-back of the

share if:

(a) the acquisition is in respect of a sub-fund of the CCIV; and

(b) the share is referable to another of the CCIV's sub-funds.

1230V General duties still apply for cross-investment between

sub-funds

None of the following:

(a) the corporate director of a CCIV;

(b) an officer, or employee, of the corporate director of a CCIV;

is relieved from any of their duties under this Act, or their fiduciary

duties, in connection with an acquisition merely because the

acquisition is permitted by this Subdivision.

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Note:

These duties include those in sections 180, 181, 182, 183 and 184 and

in Divisions 2 and 3 of Part 8B.3.

Division 2--Transactions affecting share capital

Subdivision A--Reductions in share capital and share

buy-backs

1231 Purpose

Section 256A does not apply in relation to a CCIV.

1231A CCIV may make reduction not otherwise authorised

(1) A CCIV may reduce its share capital in a way that is not otherwise

authorised by law if:

(a) the reduction is permitted by the CCIV's constitution; and

(b) immediately before the reduction:

(i) each sub-fund that the reduction affects is solvent; and

(ii) there are no reasonable grounds for suspecting that any

sub-fund that the reduction affects would become

insolvent immediately after the reduction; and

regulations made for the purposes of this paragraph.

Note:

This Subdivision also deals with some other situations (such as share

redemptions) in which reductions of share capital are authorised.

When a sub-fund is solvent and insolvent

(2) A sub-fund is

solvent

if, and only if, the CCIV is able to pay all the

debts that are liabilities of the sub-fund, as and when they become

due and payable.

Note:

The liabilities of a sub-fund can only be met from assets of the

sub-fund: see section 1234A.

(3) A sub-fund that is not solvent is

insolvent

Regulations

(4) Without limiting paragraph (1)(c), regulations made for the

purposes of that paragraph may prescribe requirements for

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reductions of share capital, or classes of reductions of share capital,

in relation to one or more of the following:

(a) all CCIVs;

(b) a specified class of CCIVs;

(d) a specified class of sub-funds of CCIVs;

(e) all sub-funds of a specified class of CCIVs.

Note:

An example of a class of a reduction of share capital is an off-market

share buy-back.

Certain provisions do not apply to a CCIV

(5) Division 1 of Part 2J.1 does not apply to a CCIV.

1231B Consequences of making an unauthorised reduction

(1) A CCIV must not make a reduction in share capital if the

reduction:

(a) does not comply with subsection 1231A(1); and

(b) is not otherwise authorised by law.

(2) If a CCIV contravenes subsection (1):

(a) the contravention does not affect the validity of the reduction

or of any contract or transaction connected with it; and

(b) the CCIV does not commit an offence.

Fault-based offence

(3) A person commits an offence if the person is involved in a CCIV's

contravention of subsection (1) and the involvement is dishonest.

Civil liability

(4) A person who is involved in a CCIV's contravention of

subsection (1) contravenes this subsection.

Note 1:

This subsection is a civil penalty provision (see section 1317E).

Note 2:

Section 79 defines

involved

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1231C A CCIV's power to buy back its own shares

(1) A CCIV may buy back its own shares, including redeemable shares

and redeemable preference shares.

Note:

Cross-investment between sub-funds is not a buy-back (see section

1230U).

(2) However, if

the buy-back involves a reduction of share capital, the

reduction must be authorised by law.

Note:

A share buy-back that involves a reduction of share capital will be

authorised by law if, for example, the buy-back complies with

subsection 1231A(1).

(3) If a CCIV has entered into an agreement to buy back shares, all

rights attaching to the shares are suspended. The suspension is

lifted if the agreement is terminated.

(4) A CCIV must not dispose of shares it buys back. An agreement

entered into in contravention of this subsection is void.

(5) Immediately after the registration of the transfer to the CCIV of the

shares bought back, the shares are cancelled.

(6) Division 2 of Part 2J.1 does not apply to a CCIV.

1231D Authorised reductions--share redemptions

A CCIV may reduce its share capital if:

(a) the reduction is involved in the redemption of a redeemable

share or a redeemable preference share; and

(b) the redemption complies with section 1230F; and

1230G.

1231E Authorised reductions--regulations

A CCIV may reduce its share capital in circumstances prescribed

by regulations made for the purposes of this section.

1231F Authorised reductions--Court orders

A CCIV may reduce its share capital under a Court order.

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1231G Authorised reductions--return of financial product

A CCIV may cancel shares returned to it under Division 5 of

Part 7.9 (as that Division applies to the CCIV under section

1241ZA) and any reduction in the CCIV's share capital that is

involved is authorised by this section.

1231H Other share capital reductions

(1) Division 3 of Part 2J.1 applies to a CCIV subject to the

modifications set out in this section.

(2) Section 258D applies in relation to a CCIV as if a reference to a

general meeting were instead a reference to a meeting of the

members of each sub-fund of the CCIV to which the shares are

referable.

(3) Sections 258E and 258F do not apply to a CCIV.

Subdivision B--Self-acquisition and control of shares

1231J Directly acquiring own shares

(1) A CCIV must not acquire shares (or units of shares) in itself

except:

(a) in buying back shares under section 1231C; or

(b) under a court order; or

cross-investment).

(2) Section 259A does not apply to a CCIV.

(3) Subject to subsection (1), a retail CCIV may acquire and hold a

share in the CCIV, but it must only do so:

(a) for not less than the consideration that would be payable if

the share were acquired by another person; and

(b) subject to terms and conditions that would not disadvantage

other members.

Note:

A similar limitation applies to the corporate director of a retail CCIV:

see section 1224P.

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(4) If a CCIV contravenes subsection (1) or (3):

(a) the contravention does not affect the validity of the

acquisition or security or of any contract or transaction

connected with it; and

(b) the CCIV is not guilty of an offence.

Civil liability

(5) Any person who is involved in a CCIV's contravention of

subsection (1) or (3) contravenes this subsection.

Note 1:

This subsection is a civil penalty provision (see section 1317E).

Note 2:

Section 79 defines

involved

Fault-based offence

(6) A person commits an offence if they are involved in a CCIV's

contravention of subsection (1) or (3) and the involvement is

dishonest.

1231K Taking security over own shares

Subsection 259B(3) (about special exemptions for financial

institutions) does not apply to a CCIV.

Note:

The consequences of contravening subsection 259B(1) are set out in

section 259F.

Subdivision C--Financial assistance

1231L Part 2J.3 does not apply to a CCIV

Part 2J.3 does not apply to a CCIV.

Subdivision D--Interaction with other duties

1231M Other duties still apply

To avoid doubt, for the purposes of section 260E, the duties of a

director under this Act include the duties of a corporate director

under this Act, including under a provision of this Chapter.

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Division 3--Debentures

1231N Debentures can only be issued in respect of sub-funds

(1) A CCIV can issue a debenture only if the debenture holder's rights

in respect of assets of the CCIV are restricted to rights in respect of

the assets of one (and only one) sub-fund of the CCIV. This is the

sub-fund to which the debenture is

referable

(2) Subsection (1) limits paragraph 124(1)(b) in relation to a CCIV.

(3) If a security interest is included in or created by a debenture or the

trust deed required by section 283AB, the security interest must not

be over property of the CCIV that forms part of the assets of a

different sub-fund of the CCIV.

1231P Modified operation of section 283AA

Paragraph 283AA(1)(a) has effect in relation to a CCIV as if an

offer of debentures was an offer of the kind referred to in that

paragraph if the offer gave rise to an obligation to give a Product

Disclosure Statement under Chapter 7 (as that Chapter applies to

securities in the CCIV under Division 4 of Part 8B.7).

Division 4--Financial reports and audit of CCIVs

Subdivision A--Application of Chapter 2M to CCIVs and their

sub-funds

1232 Application of Chapter 2M to CCIVs

Application of Chapter 2M to retail CCIVs

(1) Subject to the modifications set out in this Division, Chapter 2M

(about financial reports and audit) applies to a retail CCIV as if:

(a) references in that Chapter to the directors of, or a director of,

the company were instead references to the corporate director

of the CCIV; and

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(b) references in that Chapter to a resolution of the directors of

the company were instead references to a resolution of the

corporate director, passed as director of the CCIV.

Note:

Section 1228 deals with directors' resolutions for CCIVs.

Application of Part 2M.2 to wholesale CCIVs

(2) Subject to the modifications set out in Subdivision B of this

Division, Part 2M.2 (about financial records) applies to a

wholesale CCIV as if references in that Part to the directors of, or a

director of, the company were instead references to the corporate

director of the CCIV.

Part 2M.3 does not apply to wholesale CCIVs

(3) Part 2M.3 (about financial reporting) does not apply to a wholesale

CCIV.

Subdivision B--Financial records (all CCIVs)

1232A Obligation to keep financial records for sub-funds

(1) Without limiting the application of subsection 286(1) to the retail

or wholesale CCIV, the CCIV must also, for each sub-fund of the

CCIV, keep written financial records that:

(a) correctly record and explain the transactions relating to the

sub-fund and the financial position and performance of the

sub-fund; and

(b) would enable true and fair financial statements to be prepared

and audited for the sub-fund; and

regulations made for the purposes of this paragraph.

Note:

Section 9 defines

financial records

(2) The remaining provisions of Part 2M.2 apply in relation to the

financial records for the sub-fund as if the sub-fund were the

CCIV.

(3) This section does not apply if the CCIV has only one sub-fund.

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1232B Access to financial records of CCIVs and sub-funds

Without limiting the application of subsection 290(1) or section

1232A, a director of the corporate director of the retail or

wholesale CCIV has the same rights as a director of the CCIV:

(a) under subsection 290(1) to access the financial records of the

CCIV; and

(b) under that subsection, as applied by section 1232A, to access

the financial records of a sub-fund of the CCIV; and

Subdivision C--Financial reporting (retail CCIVs only)

1232C Annual financial reports and directors' reports for

sub-funds--general rules

(1) Division 1 of Part 2M.3 applies to a retail CCIV as if:

(a) subsection 292(1) required the CCIV to prepare a financial

report for each of its sub-funds for each financial year; and

(b) subsections 292(1) and 298(1) required the CCIV to prepare

a directors' report for each of its sub-funds for each financial

year.

Note:

The CCIV is not required to prepare such reports for the CCIV itself.

(2) The remaining provisions of Division 1 of Part 2M.3 apply in

relation to the following documents relating to each sub-fund of the

retail CCIV:

(a) a financial report and a directors' report referred to in

subsection (1) of this section;

(b) the documents of which the financial report consists under

subsection 295(1);

as if the sub-fund were the CCIV.

Note:

The combined effect of subsection 1232(1) and this subsection is that

references in the remaining provisions of Division 1 of Part 2M.3 to

the company are, where appropriate, to be read as referring to the

sub-fund.

Example: References in the remaining provisions of Division 1 of Part 2M.3 to a

listed company will be read as referring to the sub-fund if the sub-fund

is listed (see also paragraph (c) of the definition of

listed

in section 9).

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(3) Without limiting subsection (2), Division 1 of Part 2M.3 so applies

as if references in that Division to members (other than references

to members of an audit firm) were instead references to members

of the sub-fund.

(4) Despite subsection (2), Division 1 of Part 2M.3 applies to the retail

CCIV in relation to each of its sub-funds as if:

(a) references in that Division to the officers of, or an officer of,

the company were instead references to each of the

following:

(i) an officer of the CCIV;

(ii) an officer of the corporate director of the CCIV; and

(b) despite paragraph 1232(1)(a), references in that Division to

the directors of, or a director of, the company were instead

references to each of the following:

(i) the corporate director of the CCIV;

(ii) a director of the corporate director of the CCIV.

(5) Subparagraphs (4)(a)(i) and (b)(i) are included for the avoidance of

doubt.

1232D Annual financial reports and directors' reports for

sub-funds--special rules for financial reports

(1) Despite subsection 1232C(2), paragraph 295(4)(c) applies to a

directors' declaration relating to a sub-fund referred to in

subsection 1232C(1) as if the debts mentioned in that paragraph

were only the debts referable to the sub-fund.

(2) Despite subsection 1232C(2), subsection 301(1) applies to a CCIV

referred to in subsection 1232C(1) in relation to the financial report

for each of its sub-funds.

(3) A financial report for a sub-fund referred to in subsection 1232C(1)

must comply with any further requirements prescribed by

regulations made for the purposes of this subsection.

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1232E Annual financial reports and directors' reports for

sub-funds--special rules for directors' reports

(1) Section 300 applies in relation to a sub-fund of a CCIV referred to

in subsection 1232C(1) as if:

(a) a reference in that section to options, shares or interests

relating to the CCIV were instead a reference to options,

shares or interests referable to the sub-fund; and

(b) a reference in that section to indemnities given, or insurance

premiums paid, in relation to the CCIV were instead a

reference to indemnities given, or insurance premiums paid,

out of the assets of the sub-fund.

Note:

This translation rule applies in addition to the translation rules in

subsections 1232C(2) to (4).

(2) Subsection 300(13) applies in relation to a sub-fund of a CCIV

referred to in subsection 1232C(1) as if:

(a) the sub-fund were a registered scheme; and

(b) the corporate director of the CCIV were the responsible

entity for the scheme; and

instead references to shares in the CCIV referable to the

sub-fund; and

(d) references in that subsection to scheme property were instead

references to the property of the sub-fund.

Note:

This translation rule applies in addition to the translation rules in

subsections 1232C(2) to (4).

(3) If a sub-fund of a CCIV referred to in subsection 1232C(1) is a

listed sub-fund, section 300A does not apply in relation to the

sub-fund.

1232F Half-year financial reports and directors' reports for

sub-funds with ED securities on issue

(1) Section 302 does not apply to a CCIV that is a disclosing entity

except as set out in this section.

(2) If any securities referable to a sub-fund of a retail CCIV are ED

securities, section 302 applies to the CCIV as if the requirement in

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paragraph 302(a) required the CCIV to prepare a financial report

and directors' report for each half-year for the sub-fund.

Note:

For ED securities in a CCIV, see subsection 111AF(3), and

section 111AI as affected by section 1231P.

(3) For the purposes of subsection (2), ED securities that are units of

shares in a CCIV are referable to the sub-fund of the CCIV to

which the shares are referable.

(4) The remaining provisions of Division 2 of Part 2M.3 apply in

relation to the following documents relating to the sub-fund:

(a) a financial report and directors' report prepared under

paragraph 302(a) as applied by subsection (2) of this section;

(b) the documents of which the financial report consists under

subsection 303(1);

as if the sub-fund were the CCIV.

Note:

The combined effect of subsection 1232(1) and this subsection is that

references in the remaining provisions of Division 2 of Part 2M.3 to

the disclosing entity are, where appropriate, to be read as referring to

the sub-fund.

(5) Despite subsection (4) of this section, paragraph 303(4)(c) applies

to a directors' declaration relating to the sub-fund as if the debts

mentioned in that paragraph were only the debts referable to the

sub-fund.

(6) Section 306 applies to the sub-fund of the CCIV as if the

requirement in subsection 306(1) were instead a requirement for

the directors' report for the sub-fund for each half-year to include:

(a) a review of the sub-fund's operations during the half-year

and the results of those operations; and

(b) details of:

(i) the name of each corporate director of the CCIV at any

time during or since the end of the half-year, and the

period for which each was the corporate director; and

(ii) the name of each director of the corporate director of the

CCIV at any time during or since the end of the

half-year, and the period for which each was a director

of the corporate director.

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1232G Audit and auditor's report for sub-funds

(1) Subject to the modifications set out in this section, Division 3 of

Part 2M.3 applies in relation to a sub-fund of a retail CCIV, and in

relation to the following documents relating to the sub-fund:

(a) a financial report prepared as described in subsection

1232C(1);

(b) a financial report prepared as described in section 1232F;

as if the sub-fund were the CCIV.

Note:

The combined effect of subsection 1232(1) and this subsection is that

references in the remaining provisions of Division 3 of Part 2M.3 to

the company are, where appropriate, to be read as referring to the

sub-fund.

(2) Without limiting subsection (1), Division 3 of Part 2M.3 so applies

as if:

(a) references in that Division to members (other than references

to members of an audit firm) were instead references to

members of the sub-fund; and

(b) references in that Division to an officer included references

to an officer of the corporate director of the CCIV.

Audit

(3) Section 307 applies in relation to the sub-fund of the CCIV as if

the requirements in paragraphs 307(c) and (d) do not apply, and as

if those paragraphs instead require the auditor to form an opinion

about whether the CCIV has kept:

(a) financial records, relating to the sub-fund, sufficient to enable

a financial report, relating to the sub-fund, to be prepared and

audited; and

(b) other records and registers, relating to the sub-fund, as

required by this Act.

Reporting to ASIC

(4) Section 311 applies in relation to the sub-fund of the CCIV as if

the requirement in paragraph 311(4)(b) were a requirement to have

regard to the effect that the contravention has, or may have, on:

(a) the overall financial position of either the CCIV or the

sub-fund, or both; or

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(b) the adequacy of the information available about the overall

financial position of either the CCIV or the sub-fund, or both.

Subdivision D--Annual financial reporting to members (retail

CCIVs only)

1232H Annual financial reporting to members of sub-funds

(1) Section 314 applies to a retail CCIV, in relation to each sub-fund

of the CCIV, as if the requirement in subsection 314(1) were

instead a requirement to report to members of the sub-fund for the

year by providing either of the following in accordance with

subsection 314(1AA) or (1AE):

(a) all of the following reports:

(i) the financial report and directors' report relating to the

sub-fund for the year;

(ii) the auditor's report on the financial report;

(b) a concise report relating to the sub-fund for the year that

complies with subsection 314(2).

(2) Division 4 of Part 2M.3 applies in relation to a report relating to

the sub-fund as if references in that Division to members were

instead references to members of the sub-fund.

1232J Deadline for reporting to members of sub-funds

Section 315 applies to a retail CCIV in relation to the members of

each sub-fund of the CCIV as if the CCIV were a registered

scheme.

1232K Consideration of reports at AGM

Section 317 does not apply in relation to a retail CCIV.

1232L Additional reporting by CCIVs that are debenture issuers

If a retail CCIV was a borrower in relation to debentures at the end

of a financial year, section 318 applies to the CCIV, in relation to

each sub-fund of the CCIV, as if:

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(a) the requirement in subsection 318(1) were instead a

requirement to give to the trustee for debenture holders, by

the deadline for the financial year set by section 315 as

applied by section 1232J, a copy of each of the reports

mentioned in paragraph 1232H(1)(a) for the sub-fund; and

(b) the right of a debenture holder under paragraph 318(2)(a)

were instead the right to ask the CCIV for copies of the last

reports provided under subsection 1232H(1) to members of

the sub-fund; and

were instead the right to ask the CCIV for copies of:

(i) the full financial report and directors' report described

in section 1232C for the sub-fund and prepared for the

last financial year; and

(ii) the auditor's report relating to the sub-fund for the last

financial year; and

(d) the requirement in subsection 318(4) were instead a

requirement to give to the trustee for debenture holders a

copy of the half-year financial report, prepared for the

sub-fund under section 302 as applied by section 1232F,

within 75 days after the end of the half-year.

Subdivision E--Lodging reports with ASIC (retail CCIVs only)

1232M Relodgement if financial statements or directors' reports

relating to sub-fund amended after lodgement

Section 322 applies in relation to a financial report or directors'

report relating to a sub-fund of a retail CCIV as if references in that

section to a member were instead references to a member of the

sub-fund.

Subdivision F--Appointment and removal of auditors (retail

CCIVs only)

1232N Conflict of interest situation

(1) Subsection 324CD(2) has effect as if the following item were

added to the table in that subsection:

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a retail CCIV

the corporate director or a former

corporate director of the CCIV; or

a current or former director of the

corporate director; or

a person currently or formerly

involved in the management of the

CCIV; or

a person currently or formerly

involved in the management of the

corporate director.

(2) Subsection 1232(1) does not apply for the purposes of

subsection 324CD(2).

1232P Auditor independence--specific requirements

Subdivision B of Division 3 of Part 2M.4 applies in relation to a

retail CCIV as if:

(a) references in the table in subsection 324CH(1) to the audited

body included references to the corporate director of the

CCIV; and

(b) references in subsection 324CH(3) and sections 324CI,

324CJ and 324CK to a listed entity do not include references

to a CCIV that is a listed company.

1232Q People who are regarded as officers of a CCIV

Section 324CL applies in relation to a retail CCIV as if references

in paragraph 324CL(1)(a) or (b) or subsection 324CL(2), (3) or (4)

to the company included references to the corporate director of the

CCIV.

1232R Appointment, removal and fees of auditors for CCIVs

(1) Division 6 of Part 2M.4 (about appointment, removal and fees of

auditors for companies) does not apply to a CCIV.

(2) Division 7 of Part 2M.4 (about appointment, removal and fees of

auditors for registered schemes) applies to a retail CCIV as if:

(a) the CCIV were a registered scheme; and

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(b) the corporate director of the CCIV were the responsible

entity of that scheme.

1232S Effect of winding up of sub-fund on office of auditor

Audit and auditor's report not required to cover a sub-fund in

respect of which a CCIV is being wound up

(1) An auditor of a CCIV is not required by Division 3 of Part 2M.3,

as it applies under subsection 1232G(1), to do a thing in relation to

a sub-fund at a time if the sub-fund is being wound up at that time.

Auditor ceases to hold office if CCIV is being wound up in respect

of all of its sub-funds

(2) An auditor of a CCIV ceases to hold office if an event mentioned

in subsection (3) has occurred in relation to each sub-fund of the

CCIV.

(3) The events are as follows:

(a) a special resolution is passed for the voluntary winding up of

a sub-fund of the CCIV;

(b) an order is made by the Court for the winding up of a

sub-fund of the CCIV.

(4) Section 330 does not apply to a CCIV.

Subdivision G--Sanctions for contravention of Chapter 2M

1232T Extended liability of directors of the corporate director for

contraventions of Chapter 2M

(1)

Section 344 applies as if each of the following were a director of a

CCIV:

(a) the corporate director of the CCIV;

(b) a director of the corporate director of the CCIV.

Note:

Section 344 creates civil and criminal liability for contraventions of

certain provisions in Chapter 2M.

(2) Paragraph (1)(a) is included for the avoidance of doubt.

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Division 5--Updating ASIC information about CCIVs

1232U Solvency resolutions

(1) Part 2N.3 (about solvency resolutions) does not apply in relation to

a CCIV.

(2) Section 348C (about ASIC requiring a solvency resolution and

statement) does not apply in relation to a CCIV.

Part 8B.5--Operating a CCIV

Division 1--Preliminary

1233 References to property

In this Part:

property

of a CCIV includes PPSA retention of title property, if the

security interest in the property is vested in the CCIV because of

the operation of any of the following provisions:

(a) section 267 or 267A of the

Personal Property Securities Act

2009

(property subject to unperfected security interests);

(b) section 588FL of this Act (collateral not registered within

time).

Note:

See sections 9 (definition of

property

) and 51F (PPSA retention of

title property).

1233A References to liabilities of a CCIV

(1) A reference in this Act to the liabilities of a CCIV includes a

reference to:

(a) debts of the CCIV (including contingent and prospective

debts); and

(b) expenses of the CCIV; and

give rise to a debt of the CCIV, or a claim against the CCIV

(present or future, certain or contingent, ascertained or

sounding only in damages).

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(2) For the purposes of this Part, a liability of a CCIV arises when the

circumstances giving rise to the debt, expense or claim occur.

(3) This section does not apply for the purposes of Chapter 2M (about

financial reports and audit).

Division 2--Requirement to operate sub-funds as separate

businesses

1233B Sub-funds to be operated as separate businesses

(1) A part of the business of a CCIV must not be operated if it is not

registered as a sub-fund.

(2) A part of the business of a CCIV that is registered as a sub-fund

must be operated as a separate business from the business of any

other sub-fund of the CCIV.

Requirement for corporate director to operate sub-funds as

separate businesses

(3) The corporate director of a CCIV contravenes this subsection if:

(a) the corporate director operates a part of the business of the

CCIV; and

(b) the operation contravenes subsection (1) or (2).

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (3).

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (3).

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Division 3--Requirement for assets and liabilities to be

allocated between sub-funds

Subdivision A--The CCIV's allocation register

1233C Corporate director to keep allocation register

(1) The corporate director of a CCIV must set up and maintain a

The register is the CCIV's allocation register.

Note:

The register may be kept on computer (see section 1306).

Strict liability offence

(2) A person commits an offence of strict liability if the person

contravenes subsection (1).

Corporate director must maintain allocation register during

liquidation

(3) For the purposes of section 1224Q (about exercise of powers while

sub-fund in liquidation), the maintenance of the allocation register

is a function the corporate director is required by this section to

perform even when one or more, or all, of the sub-funds of the

CCIV are being wound up.

Note:

However, the corporate director may not make allocation

determinations in relation to assets and liabilities while all the

sub-funds are being wound up: see subsections 1233J(7) and

1233M(7).

1233D Requirement to enter assets on the allocation register

(1) The assets of a sub-fund of a CCIV must be clearly identified in

the allocation register as assets of the sub-fund.

(2) If section 1233K (about property that has to be converted into

money etc.) applies to an item of property of a CCIV:

(a) the item of property must be clearly identified in the

allocation register as an item of property to which that

section applies; and

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(b) the proportion of the property applicable to each sub-fund

under subsection 1233H(3) must be clearly identified in the

allocation register as the proportion applicable to the

sub-fund.

(3) The corporate director must make entries in the allocation register

as required in order to ensure the allocation register makes the

identifications required by subsections (1) and (2).

(4) An entry required by subsection (3) must be made within:

(a) for a case where money or property is acquired by the CCIV:

(i) 5 business days after the money or property is acquired,

unless subparagraph (ii) applies; or

(ii) if an allocation determination is required to be made in

relation to the money or property under section 1233J--

5 business days after the determination is made; or

(b) for a case where money or property is disposed of, or

otherwise ceases to be money or property of the CCIV--5

business days after the disposal or cessation.

Fault-based offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (3);

and

(b) the person fails to comply with the requirement.

Strict liability offence

(6) A person commits an offence of strict liability if the person

contravenes subsection (3).

1233E Requirement to enter liabilities on the allocation register

(1) The liabilities of a sub-fund of a CCIV must be clearly identified in

the allocation register as liabilities of the sub-fund.

(2) If section 1233M (about liabilities allocated to 2 or more

sub-funds) applies to a liability of a CCIV:

(a) the liability must be clearly identified in the allocation

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(b) the proportion of the liability applicable to each sub-fund

under subsection 1233L(2) must be clearly identified in the

allocation register as the proportion applicable to the

sub-fund.

(3) The corporate director must make entries in the allocation register

as required in order to ensure the allocation register makes the

identifications required by subsections (1) and (2).

(4) An entry required by subsection (3) must be made within:

(a) for a case where a liability arises--5 business days after the

liability arises; or

(b) for a case where a liability is discharged, or otherwise ceases

to be a liability of the sub-fund--5 business days after the

discharge or cessation.

Note:

For the liabilities of a CCIV, and when they arise, see section 1233A.

Fault-based offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (3);

and

(b) the person fails to comply with the requirement.

Strict liability offence

(6) A person commits an offence of strict liability if the person

contravenes subsection (3).

1233F Liquidator may require corporate director to record debt,

claim or property in allocation register

(1) This section applies if:

(a) a debt payable by, or claim against, a CCIV (present or

future, certain or contingent, ascertained or sounding only in

damages) is not entered as a liability of any sub-fund of the

CCIV in the allocation register of the CCIV; or

(b) property of the CCIV is not entered as an asset of any

sub-fund of the CCIV in the allocation register of the CCIV.

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(2) A liquidator of a sub-fund of the CCIV may, by notice in writing

given to the corporate director of the CCIV, require the corporate

director to make entries in the allocation register within the period

(which must be at least one business day after the notice is given)

specified in the notice.

Note:

See also section 1233Q (about Court orders the liquidator can apply

for).

(3) The notice must include sufficient information to enable the

corporate director to identify the debt, claim or property.

Note 1:

Only liabilities of a sub-fund of a CCIV are provable in a winding up

of the sub-fund: see section 1237W.

Note 2:

If the asset or liability has to be allocated between sub-funds, the

corporate director will have to determine the allocation in order to

update the records: see sections 1233J and 1233M.

(4) The corporate director must comply with the notice within the

period specified.

(5) An offence based on subsection (4) is an offence of strict liability.

1233G Requirement to retain records of allocations for 7 years

(1) The corporate director must retain a record of:

(a) entries made in the allocation register in relation to assets and

liabilities of the CCIV; and

(b) determinations made under Subdivision B or C in relation to

assets and liabilities of the CCIV (including variations made

under section 1233N).

(2) The records must be retained for 7 years after the end of the year in

which:

(a) for money or property--the money or property is disposed of

or otherwise ceases to be money or property of the CCIV;

and

(b) for a liability--the liability is discharged or otherwise ceases

to be a liability of the CCIV.

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Fault-based offence

(3) A person commits an offence if the person contravenes

subsection (1).

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (1).

Subdivision B--What are the assets of a particular sub-fund

1233H Meaning of assets of a sub-fund

(1) Money or property forms part of the

assets

of a sub-fund to the

extent the money or property was obtained by the application of

assets of the sub-fund.

Note:

Division 4 of this Part requires assets of a sub-fund to be applied only

for purposes relating to the sub-fund.

(2) Subject to subsection (1), the

assets

of a sub-fund of a CCIV at a

particular time are the following:

(a) amounts paid up in consideration for the issue of shares that

are referable to the sub-fund;

(b) money deposited with or lent to the CCIV under debentures

that are referable to the sub-fund;

are shares in the CCIV that are referable to another of the

CCIV's sub-funds;

(d) money or property of the CCIV not covered by paragraph (a),

(b) or (c), to the extent the money or property, at the time it is

acquired, relates solely to the business of the sub-fund;

(e) if there is money or property of the CCIV not covered by

paragraph (a), (b), (c) or (d) at the time it is acquired--the

proportion (which may be nil) of the money or property that

it is fair and reasonable, in the circumstances, to allocate to

the sub-fund at that time.

Effect of an allocation determination

(3) Despite subsections (1) and (2), if:

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(a) the corporate director of a CCIV determines under section

1233J that a particular proportion of certain money or

property of a CCIV is allocated to a sub-fund of the CCIV;

and

(b) the determination is operative (see subsection 1233J(4));

that proportion of the money or property is taken to form part of

the

assets

of the sub-fund, and to have been part of the

assets

of the

sub-fund from the time the money or property was acquired.

Note:

If there is a single item of property that forms part of the assets of 2 or

more sub-funds, it may not be held by the CCIV as an investment but

must instead be converted into money or other fungible assets (see

section 1233K).

Effect of a Court order about an arrangement or reconstruction

(4) Despite subsections (1), (2) and (3), the

assets

of a sub-fund of a

CCIV:

(a) include assets that, in accordance with a Court order made

under section 1235F (about arrangements and reconstructions

of sub-funds), are to be assets of the sub-fund; and

(b) do not include assets that, in accordance with an order made

under that section, are no longer to be assets of the sub-fund.

Note:

Subsection (1) of this section applies to money or property obtained

by the application of these assets of a sub-fund.

Regulations

(5) The regulations may provide for and in relation to matters to be

considered in determining the extent to which money or property

of a CCIV forms part of the assets of a sub-fund of the CCIV.

1233J When an allocation determination is required

(1) This section applies if money or property acquired by a CCIV in a

single transaction does not become wholly part of the assets of a

single sub-fund of the CCIV under section 1233H.

(2) The corporate director must determine (whether in the CCIV's

allocation register or otherwise in writing) the proportion

(including nil) of the money or property that is to be allocated to

each sub-fund of the CCIV.

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Requirements for determination

(3) The determination:

(a) must be fair and reasonable in the circumstances and having

regard to section 1233H; and

(b) must result in the money or property being wholly allocated;

and

property is acquired.

When the determination is operative

(4) If the determination is one that a reasonable person in the corporate

director's position could make, the determination is operative from

the time the money or property is acquired, which may be earlier

than the time at which the determination is made.

(5) A determination under this section is irrevocable.

Fault-based offence

(6) A person commits an offence if:

(a) the person is subject to a requirement under this section; and

(b) the person fails to comply with the requirement.

Determinations during winding up and controllership

(7) Subsection (2) does not apply if all of the CCIV's sub-funds are

being wound up.

(8) Despite subsection 13.3(3) of the

Criminal Code

, in a prosecution

for an offence based on subsection (6) of this section, a defendant

does not bear an evidential burden in relation to the matter in

subsection (7).

(9) A liquidator of a sub-fund of a CCIV, or a receiver of property of a

sub-fund of a CCIV, may not make a determination under this

section.

Note:

A liquidator may apply to the Court for an order under section 1233Q.

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1233K When property must be converted into money etc.

(1) This section applies if, as a result of the operation of section

1233H, a single item of property of a CCIV forms part of the assets

of 2 or more sub-funds of the CCIV.

(2) For the purposes of subsection (1), treat an item of property as a

single item if the item would generally be applied or dealt with as

an indivisible item in the ordinary course of commercial dealing.

Note:

An example of a single item of property is a share or unit in a unit

trust.

(3) The corporate director of the CCIV must apply the item of property

to obtain other money or fungible property, so as to achieve the

result that, when subsection 1233H(1) is applied to the other

money or property to determine the extent to which it forms part of

the assets of the sub-funds, no single item of property forms part of

the assets of 2 or more sub-funds.

Note:

This conversion is intended to ensure that the assets of a sub-fund can

be kept separate and distinct from the assets of other sub-funds.

(4) The conversion required by subsection (3) must be completed as

soon as practicable after the item of property is acquired.

Fault-based offence

(5) A person commits an offence if:

(a) the person is subject to a requirement under this section; and

(b) the person fails to comply with the requirement.

Subdivision C--What are the liabilities of a particular sub-fund

1233L Meaning of liabilities of a sub-fund

(1) The

liabilities

of a sub-fund of a CCIV at a particular time are the

following:

(a) liabilities of the CCIV that relate solely to the business of the

sub-fund;

(b) liabilities of the CCIV not covered by paragraph (a), to the

extent that it is fair and reasonable in the circumstances to

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allocate the liability to the sub-fund at the time having regard

to the following matters:

(i) the extent to which the liability, when it arose, related to

the business of the sub-fund;

(ii) the extent to which assets of the sub-fund, and assets of

other sub-funds, of the CCIV have been applied to meet

the liability;

(iii) the regulations (if any) made for the purposes of

subsection (4).

Note:

Section 1233A is about references to the liabilities of a CCIV.

Effect of an allocation determination

(2) Despite subsection (1), if:

(a) a particular proportion of a liability of a CCIV is allocated to

a sub-fund of the CCIV at a time under a determination made

under section 1233M (including a determination as varied

under section 1233N); and

(b) the determination is operative at the time (see subsection

1233M(4));

that proportion of the liability is taken to form part of the

liabilities

of the sub-fund at that time.

Effect of a Court order about an arrangement or reconstruction

(3) Despite subsections (1) and (2), the

liabilities

of a sub-fund of a

CCIV:

(a) include liabilities that, in accordance with a Court order made

under section 1235F (about arrangements and reconstructions

of sub-funds), are to be liabilities of the sub-fund; and

(b) do not include liabilities that, in accordance with an order

made under that section, are no longer to be liabilities of the

sub-fund.

Regulations

(4) The regulations may provide for and in relation to matters to be

considered in determining the extent to which a liability of a CCIV

forms part of the liabilities of a sub-fund of the CCIV.

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1233M When an allocation determination is required

(1) This section applies if a liability of a CCIV does not relate solely to

the business of one sub-fund of the CCIV.

(2) The corporate director must determine (whether in the CCIV's

allocation register or otherwise in writing) the proportion

(including nil) of the liability that is to be allocated to each

sub-fund of the CCIV.

Requirements for determination

(3) The determination:

(a) must be fair and reasonable in the circumstances and having

regard to the matters referred to in paragraph 1233L(1)(b);

and

(b) must result in the liability being wholly allocated; and

and

(d) must be expressed to apply from the time the liability arises

(which may be earlier than the time at which the

determination is made).

When the determination is operative

(4) A determination under this section (including a determination as

varied under section 1233N) is operative at a time if:

(a) the determination applies at that time; and

(b) the determination is one that a reasonable person in the

corporate director's position could make.

(5) A determination under this section is irrevocable, however it may

be varied under section 1233N even if it has become inoperative.

Fault-based offence

(6) A person commits an offence if:

(a) the person is subject to a requirement under this section; and

(b) the person fails to comply with the requirement.

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Determinations during winding up and controllership

(7) Subsection (1) does not apply if all of the CCIV's sub-funds are

being wound up.

(8) Despite subsection 13.3(3) of the

Criminal Code

, in a prosecution

for an offence based on subsection (6) of this section, a defendant

does not bear an evidential burden in relation to the matter in

subsection (7).

(9) A liquidator of a sub-fund of a CCIV, or a receiver of property of a

sub-fund of a CCIV, may not make a determination under this

section.

Note:

A liquidator may apply to the Court for an order under section 1233Q.

1233N Variations of proportional allocation of liabilities

(1) The corporate director may vary a determination made under

section 1233M if it is necessary to do so to ensure that the

determination remains operative for the purposes of subsection

1233M(4).

(2) If, as a result of a change in circumstances, a determination has or

will become inoperative, the corporate director must vary the

determination as soon as is practicable.

Note:

The variation may take effect retrospectively to make operative a

determination that has become inoperative: see paragraph (3)(b).

(3) The variation:

(a) must be fair and reasonable in the circumstances and having

regard to:

(i) the matters referred to in paragraph 1233L(1)(b); and

(ii) the time at which it starts to apply; and

(b) must specify the time at which it starts to apply, which may

be earlier or later

than the time at which the variation is

made; and

(d) must be made in writing.

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Effect of variation

(4) The variation takes effect from the time at which it starts to apply.

Fault-based offences

(5) A person commits an offence if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person fails to comply with the requirement.

1233P Creditor may require corporate director to provide

information about allocation

(1) A creditor of a CCIV may, by notice in writing given to the

corporate director of the CCIV, require the corporate director to

provide the creditor with the following information about the debt

owing to the creditor:

(a) the sub-fund or sub-funds of the CCIV of which the debt is a

liability;

(b) if the debt is a liability of 2 or more sub-funds of the CCIV--

the proportion of the debt allocated to each sub-fund;

within the period (which must be at least 14 days after the notice is

given), and in the manner, specified in the notice.

(2) The notice must include sufficient information to enable the

corporate director to identify the debt.

Strict liability offence

(3) A person commits an offence of strict liability if the person fails to

comply with a notice given to the person in accordance with

subsection (1).

Subdivision D--Orders the Court can make

1233Q Orders the Court can make in relation to assets and liabilities

of sub-funds

(1) The Court may, on an application under subsection (3), make any

orders, and give any directions, that the Court considers

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appropriate in relation to the assets and liabilities of the sub-funds

of a CCIV, including any of the following:

(a) an order requiring the corporate director to update or correct

the CCIV's allocation register;

(b) an order declaring that money or property of a CCIV forms

part of the assets of a particular sub-fund of the CCIV;

director under section 1233J is not operative;

(d) an order requiring the corporate director to make one or more

determinations under section 1233J;

(e) an order declaring the extent to which the money or property

forms part of the assets of each sub-fund of the CCIV;

(f) an order declaring that a liability of a CCIV forms part of the

liabilities of a particular sub-fund of the CCIV;

(g) an order declaring that a determination made by the corporate

director under section 1233M (including a determination as

varied under section 1233N), is not operative;

(h) an order requiring the corporate director to make one or more

determinations under section 1233M, or to vary a

determination under section 1233N;

(i) an order declaring the extent to which a liability forms part of

the liabilities of each sub-fund of the CCIV at a time.

(2) The Court may make an order or give directions under

subsection (1) if any of the following applies:

(a) the Court is satisfied a determination made by the corporate

director under section 1233J or 1233M (including a

determination varied under section 1233N) is not operative;

(b) the Court is satisfied that the CCIV's allocation register is

otherwise incorrect or deficient;

(3) An application for an order or directions under subsection (1) may

be made by any of the following:

(a) the corporate director of the CCIV;

(b) a liquidator of a sub-fund of the CCIV;

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(4) If the Court makes an order under paragraph (1)(b), (e) or (i), the

corporate director does not have the power under section 1233J,

1233M or 1233N (as the case requires) to make a determination

that is inconsistent with the order unless:

(a) the order states that the corporate director does have the

power to make an inconsistent determination; or

(b) the corporate director first obtains the leave of the Court.

Division 4--Purposes for which sub-fund assets may be

applied

1234 Unallocated money and property may not be applied for any

purpose

Money or property of a CCIV that has not been clearly identified in

the CCIV's allocation register as forming part of the assets of a

sub-fund or sub-funds of the CCIV may not be applied, or dealt

with, whether directly or indirectly, for any purpose.

1234A Requirement for segregated application of assets of sub-funds

(1) The assets of a sub-fund of a CCIV must not be applied, or dealt

with, whether directly or indirectly:

(a) subject to paragraph (b), for any purpose other than a purpose

covered by section 1234B; or

(b) for a purpose prescribed by regulations made for the

purposes of this paragraph.

Note:

For the consequences of a contravention of this requirement, see

section 1234F.

(2) Subsection (1) does not apply to:

(a) money or property to which section 1234 applies; or

(b) assets of a sub-fund of the CCIV, to the extent the assets

consist of property to which section 1233K (about property

that has to be converted into money etc.) applies.

Note:

For paragraph (b), see instead section 1234C.

(3) The assets of 2 or more sub-funds of a CCIV must not be applied

jointly to acquire a single item of property of the CCIV.

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Note:

A single item of property that forms part of the assets of 2 or more

sub-funds must be converted into money or other fungible property:

see section 1233K.

Liquidators

(4) However, a liquidator or provisional liquidator of a sub-fund of a

CCIV may:

(a) make a disposition of assets of the sub-fund that is an exempt

disposition for the purposes of subsection 468(2), as that

subsection applies to the sub-fund under Division 5 of

Part 8B.6; or

(b) disclaim property of a sub-fund under Division 7A of

Part 5.6, as that Division applies to the sub-fund under

Division 5 of Part 8B.6.

1234B Purposes for which sub-fund assets may be applied

This section covers the following purposes:

(a) meeting liabilities of the sub-fund;

(b) carrying on the business of the sub-fund;

(d) providing consideration to a member of the sub-fund in

respect of a reduction of share capital affecting the sub-fund;

(e) redeeming redeemable shares or redeemable preference

shares that are referable to the sub-fund;

(f) making a payment covered by section 1237Y (about winding

up);

(g) making a payment covered by section 1236K (about certain

priority payments by a receiver);

(h) complying with a compromise or arrangement relating to the

sub-fund and approved by the Court under

paragraph 411(4)(b), or an order made under section 413 in

relation to such a compromise or arrangement;

(i) making any other distribution to members of the sub-fund

that the CCIV is permitted by this Act and its constitution to

make;

(j) a purpose prescribed by regulations made for the purposes of

this paragraph.

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Note:

The assets may also be applied in accordance with a court order: see

subsection 1234E(2).

1234C Property that is required to be converted to be applied only

for that purpose

An item of property of a CCIV to which section 1233K applies

may not be applied for any purpose, except for the purpose of the

conversion required by that section.

Note:

For the consequences of a contravention of this requirement, see

section 1234F.

1234D Requirement for security interests to be segregated

A CCIV must not grant a security interest in personal property of

the CCIV if the personal property comprises assets of 2 or more

sub-funds of the CCIV.

Note:

For the consequences of a contravention of this requirement, see

section 1234F.

1234E Court orders

(1) In a proceeding to which a CCIV is a party, a court must not make

an order that is inconsistent with section 1234, 1234A, 1234C or

1234D, unless the court considers that the interests of justice

require it to do so.

(2) If a court makes an order that is inconsistent with section 1234,

1234A, 1234C or 1234D, the assets of a sub-fund must be applied

for the purpose of complying with the court order, in priority to

any other permitted application of the assets.

1234F Consequences of non-compliant application of assets

(1) If money or property of a CCIV is applied or dealt with in

contravention of section 1234, 1234A, 1234C or 1234D, the

contravention does not affect the validity of any contract or

transaction connected with the application or dealing.

Note:

A Court may order an injunction to stop the CCIV applying or dealing

with the asset (see section 1324).

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(2) A CCIV contravenes this subsection if:

(a) the CCIV applies or deals with money or property of the

CCIV; and

(b) the application or dealing contravenes section 1234, 1234A,

1234C or 1234D.

Fault-based offence

(3) A person commits an offence if the person contravenes

subsection (2).

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (2).

Division 5--How CCIV assets must be held

1234G Who may hold the assets of a CCIV

(1) The money and property of a CCIV may be held by the CCIV or

another person.

(2) Subsection (1) is subject to the regulations made for the purposes

of this subsection.

Note:

This Division contains requirements for holding the money and

property of a CCIV. Further requirements that apply to a CCIV or

another person who holds such assets may be prescribed by

regulations made for the purposes of subsection (2).

1234H Person other than CCIV holds money or property on trust

(1) A person other than the CCIV who holds money or property of the

CCIV is taken to hold the money or property on trust for the CCIV.

(2) To avoid doubt, nothing in this Chapter is intended to have the

effect of making a CCIV or its corporate director a trustee or

trustees of the money or property of the CCIV.

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1234J How CCIV money and property must be held

(1) A person who holds assets of a sub-fund of a CCIV that have been

clearly identified as such in the CCIV's allocation register must

hold the assets separately from any other property (including from

assets of any other sub-fund of the CCIV).

Note:

This subsection is a civil penalty provision (see section 1317E).

(2) A person who holds money or property of a CCIV that has not yet

been clearly identified in the CCIV's allocation register as forming

part of the assets of a sub-fund or sub-funds of the CCIV must hold

that money or property separately from any other property.

Note:

This subsection is a civil penalty provision (see section 1317E).

(3) Despite subsection (1), a person who holds an item of property of a

CCIV to which section 1233K (about property that has to be

converted into money etc.) applies must hold that item of property

separately from any other property.

Note:

This subsection is a civil penalty provision (see section 1317E).

(4) Subsections (1), (2) and (3) are subject to the regulations made for

the purposes of this subsection.

Strict liability offence

(5) An offence based on subsection (1), (2) or (3) is an offence of strict

liability.

1234K Regulations may create exceptions

(1) The regulations may provide that prescribed classes of assets:

(a) are assets to which the provisions of this Division do not

apply; or

(b) are assets to which prescribed provisions of this Division do

not apply.

(2) The regulations may make provision in relation to the holding of

assets of a sub-fund of a CCIV that are in a class of assets

prescribed by the regulations for the purposes of subsection (1).

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(3) Without limiting subsection (1), regulations made for the purposes

of that subsection may prescribe assets that are held outside of

Australia in prescribed circumstances as a class of assets.

Part 8B.6--External administration and

deregistration

Division 1--Preliminary

1235 Construing terms and expressions affected by substituted

references

Terms or expressions that have a particular meaning in relation to

a sub-fund

(1) To avoid doubt, if:

(a) a term or expression has a particular meaning in this Act in

relation to a sub-fund of a CCIV; and

(b) the term or expression occurs in a provision, in relation to a

reference (including an implied reference) that is required by

this Part to be substituted with a reference to a sub-fund;

then the meaning the term or expression has in relation to the

sub-fund in the provision is the meaning referred to in

paragraph (a).

Note:

Examples of terms or expressions that have a particular meaning in

relation to a sub-fund of a CCIV include the following:

(a) contributory (see section 9);

(b) creditor and secured creditor (see section 9);

(d) extraordinary resolution (see section 9);

(e) member (see section 1222Q);

(f) property (see subsection 51F(3));

(g) solvent and insolvent (see section 1231A);

(h) special resolution (see section 9).

Terms or expressions that do not have a particular meaning in

relation to a sub-fund

(2) If:

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(a) a term or expression has a particular meaning in this Act or in

a provision of this Act in relation to a company, corporation

or body corporate; and

(b) because of a reference (including an implied reference) that is

required by this Part to be substituted with a reference to a

sub-fund, it is necessary to determine the meaning of the

term or expression in relation to a sub-fund of a CCIV; and

relation to a sub-fund of a CCIV;

then the meaning the term or expression has in relation to the

sub-fund is the meaning the term or expression would have in

relation to the CCIV if the CCIV had no other sub-funds.

Note:

For example, the term

related entity

is defined in section 9 in relation

to a body corporate, and is not defined in relation to a sub-fund of a

CCIV. To determine whether a person is a related entity of a sub-fund:

(a) first, assume that the CCIV has no other sub-funds (this includes

disregarding any shares held by the CCIV that are assets of other

sub-funds of the CCIV); and

(b) then, apply the definition of

related entity

in section 9 to the

CCIV based on that assumption.

As a result, a member of the CCIV (paragraph (d) of the definition of

related entity

) will only be a related entity of a sub-fund of the CCIV

if the person is a member of the sub-fund.

Division 2--Arrangements and reconstructions of

sub-funds

1235A Object of this Division

The object of this Division is to provide for arrangements and

reconstructions of sub-funds of CCIVs to occur in the same way

that arrangements and reconstructions of Part 5.1 bodies occur.

1235B Compromises etc. not to be made between 2 or more

sub-funds

The Court may not approve a compromise or arrangement between

a CCIV and:

(a) the creditors of 2 or more sub-funds of a CCIV; or

(b) the members of 2 or more sub-funds of a CCIV.

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Note:

However, the Court may approve a further compromise or

arrangement between the CCIV and another sub-fund. If this is done

as part of a scheme for the amalgamation or reconstruction of a

sub-fund or sub-funds, the Court may make appropriate orders: see

section 1235E.

1235C Applying arrangements and reconstructions provisions to

sub-funds

(1) If a compromise or arrangement is proposed between a CCIV and

the creditors of a sub-fund or any class of them, or between a

CCIV and the members of a sub-fund or any class of them, the

arrangements and reconstructions provisions referred to in

subsection (2) apply to the proposed compromise or arrangement

subject to:

(a) such modifications as are set out in this Division; and

(b) such other modifications as are made necessary by the fact

that the CCIV is proposing to enter into a compromise or

arrangement relating to only one sub-fund of the CCIV.

Arrangements and reconstructions provisions

(2) The provisions (the

arrangements and reconstructions provisions

)

are as follows:

(a) Part 5.1 (other than a provision excluded by subsection (3));

(b) the other provisions of the Corporations legislation (other

than a provision excluded by subsection (3)) to the extent to

which they relate to the operation of the provisions referred

to in paragraph (a).

(3) For the purposes of subsection (2), the provisions excluded from

the arrangements and reconstructions provisions are as follows:

(a) section 410;

(b) subsections 411(1A), (1B) and (1C);

of this paragraph.

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Translation rules

(4) In the application of the arrangements and reconstructions

provisions, those provisions apply as if the substitutions set out in

the following table were made.

Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

refers to the Part 5.1 body (the

relevant body

) (whether the

reference is express or implied, and

(if the reference is express) whether

the Part 5.1 body is referred to as a

Part 5.1 body, a company, a body

corporate, a corporation, or in some

other way), and the reference is not

covered by another item of this

table

the sub-fund (but see subsections (5)

and (6))

refers to the directors, or a director,

of the relevant body

each of the following:

(a) the corporate director;

(b) a director of the corporate

director

refers to an officer of the relevant

body

each of the following:

(a) a director of the CCIV;

(b) a person covered by

paragraph (b), (c) or (d) of the

definition of

officer

of a CCIV in

section 1224B in relation to the

sub-fund

refers to shares in the relevant body

shares referable to the sub-fund

refers to debentures of the relevant

body

debentures referable to the sub-fund

Note:

For item 2--for example, the draft explanatory statement provided for

in subsection 411(2) must state any material interests of the corporate

director and of the directors of the corporate director.

(5) Despite item 1 of the table in subsection (4), a reference covered

by column 1 of that item is taken to be a reference to the CCIV if

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the context of the reference so requires (for example, because the

reference requires the legal capacity and powers of a company).

Note 1:

For example, references to the Part 5.1 body, in the context of the

body as a party to a compromise or arrangement, are references to the

CCIV, because the CCIV is the legal person that is a party to, and that

is bound by, the compromise or arrangement.

Note 2:

For example, references to the Part 5.1 body, in the context of

identifying a liquidator, are references to the sub-fund, because

winding up of a CCIV takes place at the sub-fund level.

(6) If a reference in a provision to the relevant body is, as a result of

subsection (5), taken to be a reference to the CCIV, the operation

of the provision in relation to the CCIV is confined, to the extent

possible, to the sub-fund.

1235D Persons not to be appointed to administer compromise or

arrangement

Subsection 411(7) has effect in relation to a CCIV as if the persons

referred to in that subsection included a person who holds money

or property of the CCIV.

1235E Provisions for facilitating reconstruction and amalgamation

of sub-funds within a CCIV

(1) If:

(a) a compromise or arrangement is proposed for the purposes

of, or in connection with, a scheme for the reconstruction of a

sub-fund or sub-funds or the amalgamation of 2 or more

sub-funds; and

(b) under the scheme, the whole or any part of the undertaking or

of the property of a sub-fund concerned in the scheme (the

transferor sub-fund

) is to become a part of the undertaking

or of the property of another sub-fund of the same CCIV;

the Court may by order provide for any of the matters referred to in

subsection 413(1) as if the other sub-fund were the transferee

company referred to in that subsection.

(2) Nothing in this section limits the orders a Court may make under

section 413 if it approves a compromise or arrangement relating to

a sub-fund of a CCIV.

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1235F Court may make order in relation to assets and liabilities of

sub-funds

If a Court approves a compromise or arrangement between a CCIV

and the creditors of a sub-fund or any class of them, or between a

CCIV and the members of a sub-fund or any class of them, the

Court may also make any order it considers appropriate in relation

to the assets and liabilities of the sub-fund.

Division 3--Receivers, and other controllers, of property of

sub-funds

Subdivision A--Preliminary

1236 Object of this Division

The object of this Division is to preserve the segregated application

of assets of sub-funds by requiring appointments of controllers to

be made separately in respect of the property of each sub-fund of

the CCIV.

1236A Definitions

In this Division:

property

, in relation to a sub-fund of a CCIV, means property in

Australia or outside Australia.

receiver

, in relation to property of a sub-fund of a CCIV, includes a

receiver and manager.

Subdivision B--Appointment of controllers

1236B Appointment of a controller of property of a sub-fund of a

CCIV

(1) An appointment covered by subsection (2):

(a) may not be made in relation to all the property of a CCIV;

and

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(b) may be made only in relation to property of a CCIV that is

property of a particular sub-fund of the CCIV.

(2) The appointments covered by this subsection are appointments,

whether made under a power contained in an instrument, or by a

Court, of a person to act as a:

(a) receiver; or

(b) receiver and manager; or

of property of the CCIV.

Note:

A Court may appoint a receiver under section 233, 283HB, 1101B or

1323.

1236C Persons not to act as receivers

(1) A person is not qualified to be appointed, and must not act, as

receiver of property of a sub-fund of a CCIV if the person:

(a) is a secured party in relation to any property (including PPSA

retention of title property) of the sub-fund; or

(b) is the corporate director of the CCIV; or

(d) is an auditor of the CCIV or the sub-fund; or

(e) is a director, secretary, senior manager or employee of a body

corporate that is a secured party in relation to any property

(including PPSA retention of title property) of the sub-fund;

(f) is not a registered liquidator; or

(g) is a director, secretary, senior manager or employee of:

(i) the corporate director; or

(ii) a body corporate related to the corporate director; or

(iii) a body corporate related to the CCIV; or

(h) unless ASIC directs in writing that this paragraph does not

apply in relation to the person in relation to the sub-fund of

the CCIV--has at any time within the last 12 months been:

(i) a corporate director or promoter of the CCIV; or

(ii) a director, secretary, senior manager, employee or

promoter of the corporate director or a related body

corporate of the CCIV or the corporate director.

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(2) Paragraph (1)(f) does not apply in relation to a body corporate

authorised by or under a law of the Commonwealth, of a State or of

a Territory to act as receiver of property of the sub-fund concerned.

(3) Section 418 does not apply to a CCIV.

(4) In this section:

senior manager

does not include a receiver and manager.

1236D Notifying of appointment or cessation of controller

If:

(a) a person (the

controller

) is appointed as, or ceases to be, the

controller of property of a sub-fund of a CCIV; and

(b) one or more persons, other than the CCIV, holds assets of the

sub-fund of the CCIV;

the controller must, as soon as practicable, and in any event within

3 business days after the controller's appointment or cessation,

notify each such person in writing of the appointment or cessation.

Subdivision C--Application of Part 5.2 to control of property

of sub-funds

1236E Applying Part 5.2 etc. to sub-funds

(1) The controller provisions referred to in subsection (2) apply to a

CCIV with:

(a) the modifications set out in this Division; and

(b) such other modifications as are made necessary by the fact

that the provisions are applying to a sub-fund instead of to a

corporation.

Controller provisions

(2) The provisions (the

controller

provisions

) are as follows:

(a) Part 5.2 and Division 2B of Part 5.7B (other than a provision

excluded by subsection (3));

(b) the other provisions of the Corporations legislation (other

than a provision excluded by subsection (3)) to the extent to

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which they relate to the operation of the provisions referred

to in paragraph (a).

(3) For the purposes of subsection (2), the provisions excluded from

the controller provisions are as follows:

(a) section 416;

(b) section 418;

of this paragraph.

Note:

Section 1236C applies instead of section 418.

Translation rules

(4) In the application of the controller provisions, those provisions

apply as if the substitutions set out in the following table were

made.

Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

refers to the corporation (the

relevant corporation

) in relation to

whose property a controller has

been, or is to be appointed (whether

the reference is express or implied,

and (if the reference is express)

whether the corporation is referred

to as a corporation, a company, a

body corporate, or in some other

way), and the reference is not

covered by another item of this

table

the sub-fund (but see subsections (5)

and (6))

refers to the directors, or a director,

or the board of the relevant

corporation

the corporate director of the CCIV

refers to an officer of the relevant

corporation

each of the following:

(a) a director of the CCIV;

(b) a person covered by

paragraph (b), (c) or (d) of the

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Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

definition of

officer

of a CCIV in

section 1224B in relation to the

sub-fund

refers to shares in the relevant

corporation

shares referable to the sub-fund

refers to debentures of the relevant

corporation

debentures referable to the sub-fund

(5) Despite item 1 of the table in subsection (4), a reference covered

by column 1 of that item is taken to be a reference to the CCIV if

the context of the reference so requires (for example, because the

reference requires the legal capacity and powers of a company).

(6) If a reference in a provision to the relevant corporation is, as a

result of subsection (5), taken to be a reference to the CCIV, the

operation of the provision in relation to the CCIV is confined, to

the extent possible, to the sub-fund.

Subdivision D--Modified duties and powers of receivers etc.

1236F Liability of controller

(1) Section 1224M (about extended liability for acts of agents) does

not apply to a person who, as agent for the CCIV, enters into

possession or assumes control of any property of a sub-fund of the

CCIV for the purposes of enforcing any security interest.

(2) Subsection (1) does not affect the application of section 419.

1236G Powers of receiver

If:

(a) a receiver is appointed in respect of property of a sub-fund of

a CCIV; and

(b) one or more persons, other than the CCIV, holds assets of the

sub-fund of the CCIV;

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the powers conferred under section 420 on the receiver are taken to

include the power to instruct each such person in relation to

dealing with the assets of the sub-fund.

1236H Controller may require reports relating to other sub-funds if

necessary

The affairs of a CCIV about which a controller of property of a

sub-fund of the CCIV may require a report under section 430

include:

(a) the affairs of the sub-fund; and

(b) the affairs of any other sub-fund, to the extent the

information about those affairs is required by the controller

for the purpose of attaining the objectives for which the

controller was appointed.

1236J Controller may inspect books of CCIV

The books of a CCIV that a controller of property of a sub-fund of

the CCIV is entitled under section 431 to inspect at any reasonable

time include:

(a) the allocation register kept by the corporate director under

section 1233C (about the allocation of assets and liabilities to

sub-funds); and

(b) any books of the CCIV, to the extent the inspection of those

books is necessary for the purpose of attaining the objectives

for which the controller was appointed.

Note:

A person entitled to inspect a book may make copies or take extracts:

see subsection 1300(3).

Subdivision E--Other modifications

1236K Application of sub-fund property to meet certain priority

payments

If a receiver is appointed in respect of property of a sub-fund of a

CCIV, the assets of the sub-fund may be applied for the purposes

of paying debts or amounts that, under section 433, must be paid in

priority to any claim for principal or interest in respect of the

debentures referred to in that section.

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1236L Transfer of books to ASIC etc.

(1) Before ASIC destroys, in accordance with subsection 422D(9),

books relating to the control of property of a sub-fund of a CCIV,

ASIC must notify the CCIV that it intends to do so.

(2) Despite subsection 422D(9), if:

(a) ASIC retains books under subsection 422D(8) in relation to

the control of property of a sub-fund of a CCIV; and

(b) the retention period mentioned in that subsection ends; and

ASIC not to destroy the books;

ASIC must, as soon as practicable, transfer possession or control of

those books to the CCIV.

Division 4--Administration and restructuring

1236M Part 5.3A does not apply to a CCIV

Part 5.3A (about the administration of a company's affairs with a

view to executing a deed of company arrangement) does not apply

to a CCIV or a sub-fund of a CCIV.

1236N Part 5.3B does not apply to a CCIV

Part 5.3B (about restructuring a company) does not apply to a

CCIV or a sub-fund of a CCIV.

Division 5--Winding up of sub-funds

Subdivision A--Preliminary

1237 Object of this Division

The object of this Division is to preserve the segregated application

of assets of sub-funds by requiring a separate winding up

procedure for each sub-fund.

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1237A No winding up of a CCIV

A CCIV cannot be wound up, or placed in liquidation.

Note:

If a CCIV has no sub-funds, ASIC must deregister the CCIV: see

section 1239K.

Subdivision B--Application of winding up provisions to

winding up of sub-funds

1237B Applying winding up provisions to sub-funds

(1) An application to wind up a sub-fund of a CCIV, and the winding

up of a sub-fund of a CCIV, are regulated:

(a) by the provisions of this Division; and

(b) by the winding up provisions referred to in subsection (2),

applying, so far as they are capable of so doing, subject to:

(i) such modifications as are set out in this Division; and

(ii) such other modifications as are made necessary by the

fact that the provisions are applying to a sub-fund

instead of to a company.

Winding up provisions

(2) The provisions (the

winding up provisions

) are as follows:

(a) sections 53 and 91, paragraph 233(1)(a), Parts 5.4, 5.4A,

5.4B, 5.5 and 5.6, Divisions 2 and 2A of Part 5.7B and

Schedule 2 (other than a provision excluded by

subsection (3));

(b) the other provisions of the Corporations legislation (other

than a provision excluded by subsection (3)) to the extent to

which they relate to the operation of the provisions referred

to in paragraph (a).

Note 1:

Parts 5.8 and 5.9 also apply to CCIVs with modifications: see

Divisions 8 and 9 of this Part.

Note 2:

Part 5.4C does not apply to CCIVs or sub-funds of CCIVs.

(3) For the purposes of subsection (2), the provisions excluded from

the winding up provisions are as follows:

(a) section 459T;

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(b) Subdivision B of Division 3 of Part 5.5 (about simplified

liquidation process);

(d) a provision prescribed by regulations made for the purposes

of this paragraph.

Translation rules

(4) In the application of the winding up provisions, those provisions

apply as if the substitutions set out in the following table were

made.

Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

refers to the company (the

relevant

company

) that is being, is to be, or

has been wound up, or is the subject

of an application for a winding up

order (whether the reference is

express or implied, and (if the

reference is express) whether the

company is referred to as a

company, a body corporate, a

corporation, or in some other way),

and the reference is not covered by

another item of this table

the sub-fund (but see subsections (5)

and (6))

refers to the directors, or a director,

or the board of the relevant

company

the corporate director of the CCIV

refers to an officer of the relevant

company

each of the following:

(a) a director of the CCIV;

(b) a person covered by

paragraph (b), (c) or (d) of the

definition of

officer

of a CCIV in

section 1224B in relation to the

sub-fund

refers to shares in the relevant

company

shares referable to the sub-fund

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Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

refers to debentures of the relevant

company

debentures referable to the sub-fund

refers to a general meeting, in

relation to the relevant company

(other than a reference to the

company in general meeting)

a members' meeting of the sub-fund

(see section 1228B)

refers to the relevant company in

general meeting

the members of the sub-fund at a

members' meeting of the sub-fund

refers to the incorporation of the

relevant company

the registration of the sub-fund

Note 1:

Item 1--for example, in paragraph 459P(1)(b) there is an implied

reference to "of the company" after "a creditor", and in

paragraph 459P(1)(c) there is an implied reference to "of the

company" after "a contributory". For a CCIV, both these implied

references would be substituted with implied references to "of the

sub-fund".

Note 2:

Item 4--for example, if the winding up of a sub-fund of a CCIV

commences, section 468A will operate to void a transfer of shares in

the CCIV only if the shares are referable to the sub-fund.

Note 3:

Item 7--for example, subsection 495(1) requires the members of the

sub-fund to appoint a liquidator or liquidators.

(5) Despite item 1 of the table in subsection (4), a reference covered

by column 1 of that item is taken to be a reference to the CCIV if

the context of the reference so requires (for example, because the

reference requires the legal capacity and powers of a company).

Note 1:

For example, the references in paragraphs 459P(1)(a) and 462(2)(a) to

"the company" are taken to be references to "the CCIV" because an

application to the Court would be made by the legal person that is the

CCIV.

Note 2:

For example, the reference in subsection 461(2) to "A company must

lodge" is taken to be a reference to "The CCIV must lodge" because

the lodging of documents with ASIC would be done by the legal

person that is the CCIV.

Note 3:

For example, the reference in section 493 to the "corporate state and

corporate powers of the company" is a reference to the "corporate

state and corporate powers of the CCIV".

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(6) If a reference in a provision to the relevant company is, as a result

of subsection (5), taken to be a reference to the CCIV, the

operation of the provision in relation to the CCIV is confined, to

the extent possible, to the sub-fund.

Note:

For example, the first reference in paragraph 471B(a) to "the

company" is a reference to the CCIV, because only a legal person can

be a party to a proceeding in a court. However, the operation of

section 471B to prevent proceedings against the CCIV is confined to

proceedings that relate to the sub-fund.

1237C References to debts etc. of a sub-fund

For the purposes of the application of the winding up provisions, as

those provisions apply subject to item 1 of the table in subsection

1237B(4):

(a) a debt of the CCIV is taken to be a debt of a sub-fund to the

extent (if any) that the debt is a liability of the sub-fund; and

(b) a claim against the CCIV is taken to be a claim against a

sub-fund of the CCIV to the extent (if any) that the claim is a

liability of the sub-fund.

Note:

A reference to a liability of a sub-fund of a CCIV includes debts and

claims: see section 1233A.

Subdivision C--Winding up of a sub-fund in insolvency

1237D When a sub-fund is presumed to be insolvent

Paragraph 459C(2)(a) is taken to be satisfied in relation to a

sub-fund of a CCIV if:

(a) the CCIV failed (as defined by section 459F) to comply with

a statutory demand; and

(b) the failure affects the sub-fund (see subsection 1237E(3)).

1237E Statutory demand--creditor may serve demand on CCIV

(1) A person may serve a statutory demand on a CCIV under

section 459E.

(2) However, subsection 459E(2) applies to a statutory demand served

on a CCIV as if it also required the demand to specify, in relation

to each debt to which the demand relates:

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(a) the sub-fund or sub-funds of the CCIV of which the debt is a

liability; and

(b) if the debt is a liability of 2 or more sub-funds of the CCIV--

the proportion of the debt allocated to each sub-fund at the

time the demand is served.

(3) Whether a CCIV has failed to comply with a statutory demand is

determined under section 459F. If the CCIV has failed to comply

with a statutory demand, the failure affects each sub-fund specified

in the demand.

Note:

The sub-funds specified may be affected by a variation made by the

Court under subsection 1237H(3).

1237F Statutory demand--CCIV may apply to set aside demand

(1) A CCIV may apply to the Court under section 459G for an order

setting aside a statutory demand served on the CCIV.

(2) Division 3 of Part 5.4 applies in relation to the application subject

to the modifications set out in sections 1237G to 1237J.

1237G Statutory demand--determining application to set aside

where there is a dispute or offsetting claim

(1) Paragraph 459H(1)(b) applies in relation to a debt to which a

demand relates only if the CCIV has an offsetting claim that is an

asset of the sub-fund of which the debt or a proportion of the debt

(as the case requires) is a liability.

(2) Subsection 459H(2) has effect as if it required the Court to

calculate a separate substantiated amount in relation to each

sub-fund specified in the statutory demand.

(3) For the purposes of the calculation:

(a) the amount of the debt is to be determined having regard only

to a debt or a proportion of a debt (as the case requires) that

is a liability of the sub-fund; and

(b) the amount of an offsetting claim is to be determined having

regard only to so much of an offsetting claim as is an asset of

the sub-fund.

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1237H Statutory demand--determining application to set aside

where there is a dispute about the sub-fund

(1) This section applies if:

(a) a CCIV applies under section 459G for an order setting aside

a statutory demand served on the CCIV; and

(b) within the statutory period referred to in subsection 459G(3):

(i) a notice complying with subsection (6) is filed with the

Court; and

(ii) a copy of the notice is served on the person who served

the demand on the CCIV; and

same as the information specified in the demand about the

debt; and

(d) section 459H does not apply.

(2) The Court must determine the following information for the debt:

(a) the sub-fund or sub-funds of the CCIV of which the debt is a

liability;

(b) if the debt is a liability of 2 or more sub-funds of the CCIV--

the proportion of the debt allocated to each sub-fund.

(3) If the information determined by the Court under subsection (2) is

different from the information specified in the demand, the Court

may make an order:

(a) varying the demand as specified in the order; and

(b) declaring the demand to have had effect, as so varied, as from

when the demand was served on the CCIV.

The order may be made subject to conditions.

(4) This section has effect subject to section 459J.

(5) Section 459L has effect as if the orders referred to in that section

included an order under this section.

(6) A notice complies with this subsection in relation to a statutory

demand if the notice specifies the following information for each

debt to which the demand relates:

(a) the sub-fund or sub-funds of the CCIV of which the debt is a

liability;

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(b) if the debt is a liability of 2 or more sub-funds of the CCIV--

the amount of the debt allocated to each sub-fund.

1237J Substitution of sub-fund where statutory demand not relied

(1) This section applies if:

(a) a creditor applies under section 459P for a sub-fund of the

CCIV to be wound up in insolvency; and

(b) the application does not rely on a failure by the CCIV to

comply with a statutory demand.

(2) The Court may by order substitute, in an application under

section 459P, the sub-fund or sub-funds of the CCIV in respect of

which the application is made.

(3) The Court may only make an order if:

(a) a notice complying with subsection (5) is filed with the

Court; and

(b) the Court thinks it is appropriate to do so.

(4) After the order is made, the application has effect, and may be

proceeded with, as if the substituted sub-fund or sub-funds had

been the original sub-fund or sub-funds.

(5) A notice complies with this subsection in relation to a creditor if

the notice specifies the following information for each of the

creditor's debts:

(a) the sub-fund or sub-funds of the CCIV of which the debt is a

liability;

(b) if the debt is a liability of 2 or more sub-funds of the CCIV--

the amount of the debt allocated to each sub-fund.

1237K Declaration of solvency

A written declaration under section 494 about the affairs of a

sub-fund may be made by the corporate director of the CCIV.

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Subdivision D--Modified duties and powers of liquidator of a

sub-fund

1237L Disqualification of liquidator

Paragraph 532(2)(c) has effect in relation to a sub-fund of a CCIV

as if the persons referred to in that paragraph included the

following:

(a) a director of the corporate director of the CCIV;

(b) a person (if any), other than the CCIV, who holds assets of

the sub-fund.

1237M Notifying of appointment, resignation or removal of

liquidator

(1) If:

(a) a liquidator of a sub-fund of a CCIV is appointed, resigns or

is removed from office; and

(b) one or more persons, other than the CCIV, holds assets of the

sub-fund of the CCIV;

the liquidator must, as soon as practicable, and in any event within

3 business days after the liquidator's appointment, resignation or

removal, notify each such person in writing of the appointment,

resignation or removal.

(2) In this section:

liquidator

includes a provisional liquidator.

1237N Duties and powers of liquidator

Liquidator's powers relate only to the sub-fund

(1) The functions and powers of a liquidator of a sub-fund of a CCIV:

(a) include functions and powers conferred on the liquidator of a

sub-fund of a CCIV by a provision of this Chapter; and

(b) to the extent those functions and powers are conferred on the

liquidator by the winding up provisions referred to in

subsection 1237B(2), as those provisions apply under this

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Division, extend only to matters that relate solely to the

carrying on of the business of the sub-fund.

(2) However, the books of a CCIV that a liquidator of a sub-fund is

entitled under subsection 477(3) to inspect at any reasonable time

include:

(a) the allocation register kept by the corporate director under

section 1233C (about the allocation of assets and liabilities to

sub-funds); and

(b) any other books of the CCIV, to the extent the inspection of

those books is necessary for the liquidator to perform or

exercise the functions or powers of that office.

Note 1:

A person entitled to inspect a book may make copies or take extracts:

see subsection 1300(3).

Note 2:

A provisional liquidator also has the power under subsection 477(3):

see paragraph 472(4)(b).

Liquidator may instruct person who holds assets of a sub-fund

(3) If:

(a) a liquidator of a sub-fund of a CCIV is appointed; and

(b) one or more persons, other than the CCIV, holds assets of the

sub-fund of the CCIV;

the powers conferred on the liquidator are taken to include the

power to instruct each such person in relation to dealing with the

assets of the sub-fund.

Liquidator may inspect certain books

(4) If:

(a) a liquidator of a sub-fund of a CCIV is appointed; and

(b) one or more persons, other than the CCIV, holds assets of the

sub-fund of the CCIV;

the liquidator is entitled to inspect at any reasonable time books of

each such person, to the extent the inspection of those books is

necessary for the liquidator to perform or exercise the functions or

powers of that office.

Note:

A person entitled to inspect a book may make copies or take extracts:

see subsection 1300(3).

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Definitions

(5) In this section:

liquidator

includes a provisional liquidator.

1237P Retention and destruction of books

(1) The following provisions do not apply in relation to a winding up

of a sub-fund:

(a) subsection 70-35(3) of Schedule 2 (about when an external

administrator is not required to retain books);

(b) subsection 70-35(4) of Schedule 2 (about when an external

administrator may destroy books).

Liquidator must transfer books to CCIV

(2) If:

(a) books are retained under section 70-35 of Schedule 2 by a

liquidator of a sub-fund in relation to a winding up of the

sub-fund; and

(b) the retention period mentioned in subsection 70-35(1) of that

Schedule ends; and

liquidator by notice in writing to transfer possession or

control of the books to the CCIV;

the liquidator must, as soon as practicable after the end of the

retention period, transfer possession or control of those books to

the CCIV.

(3) Otherwise, the books may be destroyed at the end of the retention

period.

Offence

(4) A person commits an offence if:

(a) the person is subject to a requirement under subsection (2);

and

(b) the person intentionally or recklessly fails to comply with the

requirement.

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Subdivision E--Modified duties and powers of officers of

corporate director and CCIV

1237Q Officers of corporate director to help liquidator

(1) Section 530A applies as if each of the following were an officer of

a CCIV:

(a) an officer of the CCIV;

(b) an officer of the corporate director of the CCIV;

(2) Paragraph (1)(a) is included for the avoidance of doubt.

(3) In this section:

officer

includes former officer.

1237R Corporate director may retain certain books

(1) The corporate director of a CCIV is entitled, as against a liquidator

of a sub-fund of the CCIV, to retain possession of books of the

CCIV that relate to:

(a) the business or affairs of the CCIV as a whole; or

(b) the business or affairs of other sub-funds of the CCIV.

Note:

Books that the corporate director is not entitled to retain must be

delivered to the liquidator: see section 530A.

(2) Subsection (1) applies despite subsection 530B(1).

(3) In this section:

liquidator

includes a provisional liquidator.

1237S Corporate director may access certain books

The corporate director of a CCIV is entitled to inspect at any

reasonable time books relating to the winding up of a sub-fund of

the CCIV, to the extent the inspection of those books is necessary

for the corporate director to perform or exercise the functions or

powers of that office.

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Note:

A person entitled to inspect a book may make copies or take extracts:

see subsection 1300(3).

1237T Corporate director may direct ASIC not to destroy books

(1) Before ASIC destroys, in accordance with subsection 70-31(9) of

Schedule 2, books relating to the winding up of a sub-fund of a

CCIV, ASIC must notify the CCIV that it intends to do so.

(2) Despite subsection 70-31(9) of Schedule 2, if:

(a) ASIC retains books under subsection 70-31(8) of Schedule 2

in relation to the winding up of a sub-fund of a CCIV; and

(b) the retention period mentioned in that subsection ends; and

ASIC not to destroy the books;

ASIC must, as soon as practicable, transfer possession or control of

those books to the CCIV.

1237U Mandatory examination

(1) Section 596A applies in relation to a CCIV as if the following were

officers of the CCIV:

(a) a natural person who is an officer of the CCIV;

(b) a natural person who is a director of the corporate director of

the CCIV.

(2) Paragraph (1)(a) is included for the avoidance of doubt.

1237V Court may make order imposing liability on unlicensed

person operating CCIV

Where:

(a) a sub-fund of a CCIV is being wound up; and

(b) within the period of 4 years ending before the relation-back

day, a person not meeting the requirements in subsection

1224F(1) for the director of a CCIV operated the business

and conducted the affairs of the CCIV;

the Court may, on the application of the sub-fund's liquidator,

order that the person is personally liable for so much of the

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sub-fund's debts and liabilities as does not exceed an amount

specified in the order.

Subdivision F--Proof and ranking of claims

1237W Liquidator must be satisfied debt or claim is a liability of the

sub-fund

(1) The liquidator of a sub-fund must determine that the whole or a

part of a debt of the CCIV is not admissible to proof against the

sub-fund if the liquidator is satisfied that the debt or the part of the

debt (as the case requires) is not a liability of the sub-fund.

(2) Such a determination does not have the effect of extinguishing the

debt or the part of the debt.

1237X Determination of debts and claims that relate to the business

of 2 or more sub-funds and are of uncertain value

(1) This section applies if, in the winding up of a sub-fund, the

liquidator admits a debt or claim that:

(a) is a liability of the CCIV that does not relate solely to the

business of the sub-fund; and

(b) as at the relevant date, did not bear a certain value.

Note:

If the liability relates solely to the business of the sub-fund but is of

uncertain value, the liquidator must estimate the value of the debt or

claim (paragraph 554A(2)(a)) or refer the question of the value of the

debt or claim to the Court (paragraph 554A(2)(b)).

(2) Section 554A applies in relation to the debt or claim as if the value

of the debt or claim that is to be estimated as at the relevant date

were the value of the whole of the debt or claim (not just the

proportion that is applicable to the sub-fund under subsection

1233L(2)).

(3) However, despite subsection 554A(8), for the purposes of

Division 6 of Part 5.6, the amount of the debt or claim that is

admissible to proof is the product of:

(a) the value as estimated or worked out under section 554A (as

modified by this section); and

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(b) the proportion of the liability applicable to the sub-fund

under subsection 1233L(2).

1237Y Application of sub-fund property

If a sub-fund of a CCIV is being wound up, the assets of the

sub-fund may be applied for the purposes of paying debts and

claims that, under section 556 as it applies in relation to the

winding up of the sub-fund, must be paid in priority to all other

unsecured debts and claims.

Subdivision G--Powers of Courts

1237Z Warrant in relation to books

(1) This section applies in relation to a warrant issued by a Court under

subsection 530C(2) on application by the liquidator or provisional

liquidator of a sub-fund of a CCIV.

(2) The books of a CCIV that may be searched for under the warrant

are any books of the CCIV.

(3) The books of the CCIV that may be seized under the warrant are

books of the CCIV that relate to the sub-fund.

Specified person to be in possession of warrant

(4) When executing the warrant, the specified person must be in

possession of the warrant or a copy of the warrant.

Notification of entry

(5) Subsections (6) and (7) apply if:

(a) the warrant is being executed in relation to premises; and

(b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises.

(6) Before entering the premises under the warrant, the specified

person must:

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

and

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(b) show the occupier or other person evidence of the person's

identity that:

(i) includes a photograph of the person; and

(ii) has not expired.

(7) The specified person must, as soon as practicable:

(a) make a copy of the warrant available to the occupier or other

person; and

(b) inform the occupier or other person in writing of the rights

and responsibilities of the occupier or other person under this

section and section 530C.

Books to be used only for purpose of liquidation

(8) A book of the CCIV seized under the warrant may be used only for

the purpose for which it was seized.

Return of seized things

(9) Despite subsection 530C(4), and subject to any contrary order of

the Court, a person who has custody of property or a book because

of the execution of the warrant must take reasonable steps to return

the property or book to the CCIV when the property or book is no

longer required to be retained for the purpose for which it was

seized.

Receipts

(10) If property or a book is seized under the warrant, the specified

person must provide a receipt for the property or book.

(11) If 2 or more books or items of property are seized, they may be

covered by the one receipt.

Subdivision H--Recovering property

1237ZA Presumptions to be made in recovery proceedings

A reference in section 588E to financial records a company is

required by subsection 286(1) to keep is taken, in relation to a

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winding up of a sub-fund of a CCIV, to be a reference to both of

the following:

(a) financial records that the CCIV is required to keep and retain

for the sub-fund under subsection 286(1), as that subsection

applies in relation to the sub-fund under section 1232A;

(b) financial records that the CCIV is required to keep and retain

for itself under subsection 286(1), as that subsection applies

to the CCIV under section 1232.

1237ZB Directors of the corporate director

(1) Sections 588FDA and 588FGA apply in relation to a sub-fund of a

CCIV as if each of the following were a director of a CCIV:

(a) a director of the CCIV;

(b) a director of the corporate director of the CCIV.

(2) Paragraph (1)(a) is included for the avoidance of doubt.

1237ZC Vesting of PPSA security interests if collateral not

registered within time

Section 588FL applies in relation to a PPSA security interest

granted by a CCIV if:

(a) an order is made, or a resolution is passed, for the winding up

of a sub-fund of the CCIV; and

(b) the PPSA security interest is in collateral that is an asset of

the sub-fund of the CCIV.

Division 6--Recovering property of sub-funds

1238 Duties owed by directors of corporate director of a CCIV

The object of this Division is to ensure that the officers of the

corporate director of a CCIV, instead of the corporate director

itself, owe the duties in Divisions 3, 4, 5 and 6 of Part 5.7B.

1238A Applying property recovery provisions to CCIVs

(1) The property recovery provisions referred to in subsection (2)

apply to a CCIV subject to:

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(a) such modifications as are set out in this Division; and

(b) such other modifications as are made necessary by the facts

that:

(i) for a CCIV, solvency and insolvency are determined at

the level of a sub-fund, instead of at the level of the

CCIV; and

(ii) the officers to whom the provisions are directed are the

officers of the corporate director, instead of the officers

of the CCIV.

Property recovery provisions

(2) The provisions (the

property recovery provisions

) are as follows:

(a) Divisions 3, 4, 5 and 6 of Part 5.7B (other than a provision

excluded by subsection (3));

(b) the other provisions of the Corporations legislation (other

than a provision excluded by subsection (3)) to the extent to

which they relate to the operation of the provisions referred

to in paragraph (a).

(3) For the purposes of subsection (2), the regulations may specify

provisions that are excluded from the property recovery provisions.

Translation rules

(4) In the application of the property recovery provisions, those

provisions apply as if the substitutions set out in the following

table were made.

Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

refers to the company (the

relevant

company

) in relation to which the

provision applies (whether the

reference is express or implied, and

(if the reference is express) whether

the company is referred to as a

company, a body corporate, a

corporation, or in some other way),

the sub-fund (but see subsections (5)

and (6))

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Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

and the reference is not covered by

another item of this table

refers to the directors, or a director,

or the board of the relevant

company

the directors, or a director, or the

board of the corporate director of the

CCIV

refers to an officer of the relevant

company

an officer of the corporate director

refers to shares in the relevant

company

shares referable to the sub-fund

(5) Despite item 1 of the table in subsection (4), a reference covered

by column 1 of that item is taken to be a reference to the CCIV if

the context of the reference so requires (for example, because the

reference requires the legal capacity and powers of a company).

(6) If a reference in a provision to the relevant company is, as a result

of subsection (5), taken to be a reference to the CCIV, the

operation of the provision in relation to the CCIV is confined, to

the extent possible, to the sub-fund.

1238B References to incurring debts

For the purposes of the application of the property recovery

provisions, as those provisions apply subject to item 1 of the table

in subsection 1238A(4), a sub-fund is taken to incur a debt if:

(a) the CCIV incurs the debt; and

(b) the debt is, to any extent, a liability of the sub-fund.

The sub-fund incurs the debt at the time the CCIV incurs the debt.

1238C When debts arise in relation to redeemable shares

(1) For the purposes of section 588G, if a CCIV takes action set out in

column 1 of an item of the following table, it incurs a debt at the

time set out in column 2 of the item.

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When debts are incurred

Item

Column 1

Action of company

Column 2

When debt is incurred

redeeming redeemable shares

that are redeemable only at its

option

when the company exercises the option

issuing redeemable shares that

are issued on terms that they

are liable to be redeemed

otherwise than only at its

option

when the shares are issued

converting under section

1230C a share that is not a

redeemable share into a share

that is liable to be redeemed

otherwise than only at its

option

when the shares are converted

(2) This section has effect in relation to a CCIV in addition to the table

set out in subsection 588G(1A).

Division 7--External administration offences

1238D Applying external administration offences to CCIVs

(1) The external administration offences provisions referred to in

subsection (3) apply to a CCIV.

(2) In addition to the application referred to in subsection (1), the

external administration offences provisions apply to a CCIV

subject to:

(a) such modifications as are set out in this Division; and

(b) such other modifications as are necessary.

External administration offences provisions

(3) The provisions (the

external administration offences provisions

)

are as follows:

(a) Part 5.8 (other than a provision excluded by subsection (4));

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(b) the other provisions of the Corporations legislation (other

than a provision excluded by subsection (4)) to the extent to

which they relate to the operation of the provisions referred

to in paragraph (a).

(4) For the purposes of subsection (3), the regulations may specify

provisions that are excluded from the external administration

offences provisions.

Translation rules

(5) In the application of the external administration offences

provisions, those provisions apply as if the substitutions set out in

the following table were made.

Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

refers to the company (the

relevant

company

) in relation to which the

provision applies (whether the

reference is express or implied, and

(if the reference is express) whether

the company is referred to as a

company, a body corporate, a

corporation, or in some other way),

and the reference is not covered by

another item of this table

the sub-fund (but see subsections (6)

and (7))

refers to the directors, or a director,

or the board of the relevant

company

the corporate director of the CCIV

refers to an officer of the relevant

company

each of the following:

(a) a director of the CCIV;

(b) a person covered by

paragraph (b), (c) or (d) of the

definition of

officer

of a CCIV in

section 1224B in relation to the

sub-fund

refers to shares in the relevant

company

shares referable to the sub-fund

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(6) Despite item 1 of the table in subsection (5), a reference covered

by column 1 of that item is taken to be a reference to the CCIV if

the context of the reference so requires (for example, because the

reference requires the legal capacity and powers of a company).

(7) If a reference in a provision to the relevant company is, as a result

of subsection (6), taken to be a reference to the CCIV, the

operation of the provision in relation to the CCIV is confined, to

the extent possible, to the sub-fund.

1238E Interpretation of ceased to carry on business

(1) For the purposes of Part 5.8, a sub-fund is taken to have ceased to

carry on business only if:

(a) 2 months have passed since a notice under subsection

1239(5) (about voluntary deregistration of a sub-fund)

relating to the sub-fund was published and ASIC has not

been informed that the part of the business of the CCIV that

is registered as the sub-fund is being carried on; or

(b) ASIC has published a notice under subsection 1239B(1)

(about ASIC initiated deregistration of a sub-fund) relating to

the sub-fund.

(2) Subsection 589(3) does not apply to determine when a sub-fund of

a CCIV is taken to have ceased to carry on business.

1238F Frauds by officers

(1) Section 596 applies in relation to a CCIV as if the following were

officers of the CCIV:

(a) a natural person who is an officer of the CCIV;

(b) a natural person who is a director of the corporate director of

the CCIV.

(2) Paragraph (1)(a) is included for the avoidance of doubt.

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Division 8--Miscellaneous

1238G Applying external administration miscellaneous provisions to

sub-funds

(1) The external administration miscellaneous provisions referred to in

subsection (2) apply to a CCIV subject to:

(a) such modifications as are set out in this Division; and

(b) such other modifications as are necessary.

External administration miscellaneous provisions

(2) The provisions (the

external administration miscellaneous

provisions

) are as follows:

(a) Part 5.9 (other than a provision excluded by subsection (3));

(b) the other provisions of the Corporations legislation (other

than a provision excluded by subsection (3)) to the extent to

which they relate to the operation of the provisions referred

to in paragraph (a).

(3) For the purposes of subsection (2), the regulations may specify

provisions that are excluded from the external administration

miscellaneous provisions.

Translation rules

(4) In the application of the external administration miscellaneous

provisions, those provisions apply as if the substitutions set out in

the following table were made.

Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

refers to the corporation (the

relevant corporation

) in relation to

which the provision applies

(whether the reference is express or

implied, and (if the reference is

express) whether the corporation is

referred to as a company, a body

the sub-fund (but see subsections (5)

and (6))

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Substitutions to be made

Item

Column 1

If the provision ...

Column 2

substitute a reference to ...

corporate, a corporation, or in some

other way), and the reference is not

covered by another item of this

table

refers to an officer of the relevant

corporation

each of the following:

(a) a director of the CCIV;

(b) a person covered by

paragraph (b), (c) or (d) of the

definition of

officer

of a CCIV in

section 1224B in relation to the

sub-fund

refers to shares in the relevant

corporation

shares referable to the sub-fund

(5) Despite item 1 of the table in subsection (4), a reference covered

by column 1 of that item is taken to be a reference to the CCIV if

the context of the reference so requires (for example, because the

reference requires the legal capacity and powers of a company).

(6) If a reference in a provision to the relevant corporation is, as a

result of subsection (5), taken to be a reference to the CCIV, the

operation of the provision in relation to the CCIV is confined, to

the extent possible, to the sub-fund.

Division 9--Deregistration and transfer of registration

Subdivision A--Deregistration

1239 Deregistration of a sub-fund--voluntary

Who may apply for deregistration

(1) An application to deregister a sub-fund of a CCIV may be lodged

with ASIC by:

(a) the CCIV; or

(b) the corporate director of the CCIV; or

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If the CCIV lodges the application, it must nominate a person to be

given notice of the deregistration.

Circumstances in which application can be made

(2) A person may apply only if:

(a) the sub-fund has no assets or liabilities; and

(b) the CCIV is not a party to any legal proceedings that relate to

the sub-fund.

(3) The application must be in the prescribed form.

ASIC may ask for information about officers

(4) The applicant must give ASIC any information that ASIC requests

about the following officers:

(a) the current and former officers of the CCIV;

(b) the current and former officers of the corporate director of

the CCIV.

Deregistration procedure

(5) If:

(a) ASIC decides to deregister the sub-fund under this section;

and

(b) ASIC is not aware of any failure to comply with

subsections (1) to (4);

ASIC must:

and

(d) publish notice of the proposed deregistration in the

prescribed manner.

(6) When 2 months have passed since the publication of the notice

under paragraph (5)(d), ASIC may deregister the sub-fund.

(7) ASIC must give notice of the deregistration to:

(a) the applicant; or

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(b) the person nominated in the application to be given the

notice.

Notices taken to have been given under section 601AA

(8) For the purposes of the provisions of this Act (other than a

provision of this Chapter):

(a) a notice given under paragraph (5)(c) is taken to have been

given under paragraph 601AA(4)(c); and

(b) a notice published under paragraph (5)(d) is taken to have

been published under subsection 601AA(4)(d).

ASIC must not deregister a sub-fund that is an Australian passport

fund if the fund has certain members

(9) However, ASIC must not decide, under this section, to deregister a

sub-fund that is an Australian passport fund if:

(a) there are members of the fund who became members

(whether in this jurisdiction or any host economy for the

fund) after the fund became an Australian passport fund; or

(b) there are members of the fund who became members

(whether in this jurisdiction or any host economy for the

fund) on the expectation that the fund would become an

Australian passport fund.

(10) For the purposes of subsection (9), ignore any member of the fund

that:

(a) is, or has at any time been, the operator of the fund; or

(b) is a related party of an entity that is, or has at any time been,

the operator of the fund.

Note:

See section 1216B for the circumstances in which a person becomes a

member of a fund on the expectation that it would become an

Australian passport fund.

1239A Deregistration of a sub-fund--ASIC initiated

Circumstances in which ASIC may deregister

(1) ASIC may decide to deregister a sub-fund of a CCIV if:

(a) the CCIV has not lodged any documents that relate to the

sub-fund under this Act in the last 18 months; and

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(b) ASIC has no reason to believe that the part of the business of

the CCIV that is registered as the sub-fund is being carried

on.

(2) ASIC may also decide to deregister a sub-fund of a CCIV if:

(a) the CCIV's review fee in respect of a review date has not

been paid in full at least 12 months after the due date for

payment; and

(b) the review fee is to any extent a liability of the sub-fund.

(3) ASIC may also decide to deregister a sub-fund of a CCIV if the

sub-fund is being wound up and ASIC has reason to believe that:

(a) the liquidator of the sub-fund is no longer acting; or

(b) the sub-fund's affairs have been fully wound up and a return

that the liquidator should have lodged is at least 6 months

late; or

Part 5.4 (as modified by this Part) and the assets of the

sub-fund are not enough to cover the costs of obtaining a

Court order for the sub-fund's deregistration.

(4) However, ASIC must not decide, under this section, to deregister a

sub-fund that is an Australian passport fund if ASIC is of the

opinion that to do so would not be in the interests of:

(a) members of the fund who became members (whether in this

jurisdiction or any host economy for the fund) after the fund

became an Australian passport fund; and

(b) members of the fund who became members (whether in this

jurisdiction or any host economy for the fund) on the

expectation that the fund would become an Australian

passport fund.

(5) For the purposes of subsection (4), ignore any member of the fund

that:

(a) is, or has at any time been, the operator of the fund; or

(b) is a related party of an entity that is, or has at any time been,

the operator of the fund.

Note:

See section 1216B for the circumstances in which a person becomes a

member of a fund on the expectation that it would become an

Australian passport fund.

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Show cause notice

(6) Before deciding to deregister a sub-fund, ASIC must give the

CCIV a written notice that requires the CCIV to show cause, at a

hearing before a specified person, why the sub-fund should not be

deregistered.

(7) The notice must specify:

(a) the grounds on which it is proposed to deregister the

sub-fund; and

(b) a reasonable time and place at which the hearing is to be

held.

However, if the CCIV consents, the person conducting the hearing

may fix a different time or place.

(8) The person conducting the hearing must:

(a) give the CCIV an opportunity to be heard at the hearing; and

(b) give ASIC:

(i) a report about the hearing; and

(ii) a recommendation about the grounds in the notice on

which it is proposed to deregister the sub-fund.

(9) After considering the report and recommendation, ASIC may

decide to:

(a) take no further action in relation to the matter and give

written advice of that decision to the CCIV; or

(b) deregister the sub-fund.

(10) Neither of the following is a legislative instrument:

(a) a notice under subsection (6);

(b) a report under subsection (8) (if it is in writing).

1239B Process for ASIC initiated deregistration of a sub-fund

(1) If ASIC decides under section 1239A to deregister a sub-fund of a

CCIV, it must:

(a) give notice setting out the date on which ASIC proposes to

deregister the sub-fund:

(i) to the CCIV; and

(ii) to the liquidator of the sub-fund (if any); and

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(iii) to the corporate director; and

(iv) on the ASIC database; and

(b) publish notice of the date on which ASIC proposes to

deregister the sub-fund in the prescribed manner.

(2) A notice under paragraph (1)(a) must be given at least 5

business

days before the sub-fund is deregistered.

(3) ASIC may deregister the sub-fund if:

(a) 5 business days have passed since the publication of the

notice under paragraph (1)(b); and

(b) at the time ASIC deregisters the sub-fund, ASIC has reason

to believe that there is no property of the CCIV to which

section 1233K (about property that has to be converted)

applies.

(4) ASIC does not have to give a person notice under paragraph (1)(a)

if ASIC does not have the necessary information about the person's

identity or address.

(5) If ASIC deregisters a sub-fund of a CCIV under this section, ASIC

must give notice that the fund has been deregistered, and the date

on which it has been deregistered, to everyone who was notified of

the proposed deregistration under subparagraph (1)(a)(ii) or (iii).

(6) The notice must be given within 5 business days after the sub-fund

is deregistered.

Notices taken to have been given under section 601AB

(7) For the purposes of the provisions of this Act (other than a

provision of this Chapter):

(a) a notice given under paragraph (1)(a) is taken to have been

given under paragraph 601AB(3)(a); and

(b) a notice published under paragraph (1)(b) is taken to have

been published under subsection 601AB(3)(b).

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1239C Deregistration of a sub-fund--following amalgamation or

winding up

ASIC must deregister a sub-fund of a CCIV if the Court orders the

deregistration of the sub-fund under:

(a) paragraph 413(1)(d) (reconstruction and amalgamation of

Part 5.1 bodies); or

(b) paragraph 481(5)(b) (release of liquidator); or

return is lodged).

Note:

These provisions apply to a sub-fund of a CCIV with modifications:

see Divisions 1 to 8 of this Part.

1239D Effect of deregistration of a sub-fund

Effect on assets of the CCIV

(1) Subsections 601AD(1A) to (4) and section 601AE apply in relation

to the deregistration of a sub-fund of a CCIV.

Note:

Subsection 601AD(1) does not apply in relation to the deregistration

of a sub-fund of a CCIV. The CCIV will continue to exist until the

CCIV itself is deregistered.

(2) Those provisions apply as if a reference to property were instead a

reference to property of the sub-fund.

Note:

For references to property of a sub-fund, see subsection 51F(3).

Books

(3) If a sub-fund of a CCIV is deregistered, the CCIV must keep the

CCIV's books that relate to the sub-fund (other than books that a

liquidator has to keep under subsection 70-35(1) of Schedule 2) for

3 years after the deregistration.

Note:

If the CCIV itself is deregistered, the corporate director of the CCIV

immediately before it is deregistered is required to retain all books of

the CCIV including these books: see section 1239L.

(4) An offence based on subsection (3) is an offence of strict liability.

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Consequences of deregistration on status as an Australian passport

fund

(5) If:

(a) a sub-fund of a CCIV is deregistered; and

(b) the sub-fund was an Australian passport fund;

ASIC must annotate the Register of Passport Funds to indicate that

the sub-fund is no longer an Australian passport fund, or cause that

annotation to be made on the Register.

1239E The Commonwealth's and ASIC's power to fulfil outstanding

obligations in relation to deregistered sub-fund

The Commonwealth or ASIC may do an act on behalf of the CCIV

of a deregistered sub-fund or the liquidator of the sub-fund if the

Commonwealth or ASIC is satisfied that the CCIV or liquidator

would be bound to do the act if the sub-fund had not been

deregistered.

Note:

This power is a general one and is not limited to acts in relation to

property vested in the Commonwealth under subsection 601AD(1A),

or ASIC under subsection 601AD(2). The Commonwealth or ASIC

has all the powers that automatically flow from the vesting of property

under that subsection (see subsections 601AD(3A) and (4)) and may

exercise those powers whether or not the CCIV was bound to do so.

1239F Claims against insurers in relation to deregistered sub-fund

A person may recover from the insurer of a CCIV an amount that

was payable to the CCIV under the insurance contract if:

(a) a sub-fund of the CCIV is deregistered; and

(b) the CCIV has a liability to the person that was a liability of

the sub-fund; and

before the sub-fund was deregistered.

1239G Reinstatement of a sub-fund

(1) The registration of a sub-fund of a CCIV may be reinstated under

section 601AH as if the sub-fund were a company.

Note:

Notice of the reinstatement must be given: see section 1239J.

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(2) If the registration of a sub-fund of a CCIV is reinstated under

section 601AH, the sub-fund is taken to have been registered

throughout the period it was deregistered.

(3) The Court's power to make an order under subsection 601AH(3)

includes the power to make an order in relation to the following:

(a) the assets or liabilities of a sub-fund of a CCIV whose

registration is reinstated;

(b) the assets or liabilities of any other sub-fund of the CCIV

which is affected by the reinstatement.

(4) If the registration of a sub-fund of a CCIV is reinstated under

section 601AH, any property of the CCIV that was property of the

sub-fund that is still vested in the Commonwealth or ASIC revests

in the CCIV. If the CCIV held particular property subject to a

security or other interest or claim, the CCIV takes the property

subject to that interest or claim.

Note:

The CCIV must allocate the property to the sub-fund in accordance

with Subdivision B of Division 3 of Part 8B.5.

(5) Subsections 601AH(1A), (4), (4A) and (5) do not apply in relation

to the reinstatement of the registration of a sub-fund of a CCIV.

Registration as an Australian passport fund not reinstated

(6) The reinstatement of the registration of a sub-fund of a CCIV does

not result in the sub-fund's registration as a passport fund under

Part 8A.3 being reinstated, even if the sub-fund was an Australian

passport fund immediately before its deregistration.

1239H CCIV reinstated following reinstatement of a sub-fund

(1) If a CCIV is deregistered and:

(a) ASIC reinstates the registration of a sub-fund of the CCIV

under subsection 601AH(1); or

(b) the Court makes an order that ASIC reinstate the registration

of the sub-fund under subsection 601AH(2);

ASIC must also reinstate the registration of the CCIV.

Note:

Notice of the reinstatement of the registration of the CCIV must be

given: see section 1239J.

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Effect of reinstatement

(2) If the registration of a CCIV is reinstated the CCIV is taken to have

continued in existence as if it had not been deregistered.

Note:

Any property of the CCIV that comprised assets of the sub-fund that is

still vested in the Commonwealth or ASIC revests in the CCIV: see

subsection 1239G(4).

(3) To avoid doubt, the reinstatement of the registration of the CCIV

also has the effect of reinstating, at the time the registration is

reinstated, ASIC's record, kept as part of the registration, of the

company that is the corporate director or temporary corporate

director of the CCIV.

Note:

The company named in the record as the corporate director or

temporary corporate director of the CCIV is the corporate director of

the CCIV (see subsection 1224(3)). See section 1224S for what

happens if the corporate director does not meet the requirements of

section 1224F.

1239J Notices relating to reinstatement of a sub-fund

If the registration of a sub-fund of a CCIV is reinstated under

section 601AH, ASIC must publish notice in the Gazette and give

notice to the corporate director of the CCIV of the following:

(a) the reinstatement of the registration of the sub-fund;

(b) if as a result of reinstating the sub-fund the registration of the

CCIV is also reinstated under section 1239H--the

reinstatement of the registration of the CCIV.

1239K Deregistration of a CCIV

CCIV must be deregistered if it has no registered sub-funds

(1) If, as the result of ASIC deregistering a sub-fund of a CCIV, the

CCIV has no registered sub-funds, ASIC must deregister the

CCIV.

Note:

Subject to this Subdivision, sections 601AD to 601AG apply in

relation to the deregistration of the CCIV.

(2) ASIC must give the corporate director of the CCIV written notice

that the CCIV has been deregistered and the date on which it has

been deregistered.

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(3) The notice must be given within 5 business days after the date the

CCIV has been deregistered.

CCIV may not be deregistered under section 601AA, 601AB or

601AC

(4) ASIC may not deregister a CCIV under section 601AA, 601AB or

601AC.

1239L Books of the CCIV to be kept by former corporate director

(1) If a CCIV is deregistered, the corporate director of the CCIV

immediately before the deregistration must keep the CCIV's books

(other than books that a liquidator has to keep under

subsection 70-35(1) of Schedule 2) for 3 years after the

deregistration.

(2) An offence based on subsection (1) is an offence of strict liability.

(3) Books that the corporate director of the CCIV is required to keep

under subsection (1) are taken to be books of the corporate director

for the purposes of subsections 601AD(5) to (7) as those sections

apply in relation to deregistration of the corporate director.

Note:

If the corporate director is deregistered, the directors of the corporate

director immediately before deregistration must keep the corporate

director's books for 3 years after the deregistration: see

subsection 601AD(5).

(4) Subsections 601AD(5) to (7) do not apply in relation to the

deregistration of a CCIV.

1239M A CCIV may not be reinstated under section 601AH

The registration of a CCIV may not be reinstated under

section 601AH.

Note:

If a CCIV has been deregistered and the registration of a sub-fund is

reinstated under section 601AH, ASIC must reinstate the registration

of the CCIV: see section 1239H.

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Subdivision B--Transfer of registration

1239N Registration of CCIV cannot be transferred

Part 5A.2 does not apply to a CCIV.

Part 8B.7--Control, financial services and

disclosure

Division 1--Takeovers, compulsory acquisitions and

buy-outs

1240 Meaning of securities

The term

securities

has the same meaning in this Part as it has in

Chapters 6 to 6CA (see subsection 92(3)).

1240A Takeovers--prohibition on acquisitions of shares in a listed

CCIV

The prohibitions in subsections 606(1) and (2) only apply to an

acquisition of a relevant interest in issued voting shares in a CCIV

if the CCIV is a listed company (including an acquisition resulting

from an acquisition of a legal or equitable interest in securities).

Note:

A retail CCIV that has only one sub-fund may be a listed company,

see section 1222N.

1240B Takeovers--directors of the corporate director of a listed

CCIV

(1) The provisions mentioned in subsection (2) apply as if each of the

following were a director of a CCIV that is a listed company:

(a) the corporate director of the CCIV;

(b) a director of the corporate director of the CCIV.

(2) The provisions are the following:

(a) subsection 609(9);

(b) subsection 638(1A);

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(d) subsection 639(1);

(e) subsection 640(1);

(f) subsection 642(1);

(g) subsection 658C(5);

(h) subsection 670B(1);

(i) subsection 670D(3).

(3) Paragraph (1)(a) is included for the avoidance of doubt.

1240C Takeovers--bidder's statement content

(1) Subsection 636(1) has effect as if:

(a) a reference in paragraph 636(1)(c) to a company or body did

not include a reference to a CCIV that is a listed company;

and

(b) subsection 636(1) also included the following paragraph:

"(da) if the target is a CCIV that is a listed company--details of the

bidder's intentions regarding:

(i) the continued operation of the CCIV; and

(ii) any major changes to be made to the operation of the

CCIV, including any redeployment of the property of

the CCIV; and

(iii) any plans to remove the current corporate director of the

CCIV and appoint a new corporate director;".

(2) Subsection 636(1) also has effect as if:

(a) a reference in paragraph 636(1)(g) to securities did not

include a reference to securities in a CCIV that is a listed

company; and

(b) subsection 636(1) also included the following paragraph:

"(gb) if any securities in a CCIV that is a listed company are

offered as consideration under the bid and the bidder is:

(i) a retail CCIV; or

(ii) the corporate director of a retail CCIV; or

(iii) a person who controls a retail CCIV or the corporate

director of a retail CCIV;

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all material that would be required by section 1013C to be

included in a Product Disclosure Statement given to a person

in an issue situation (within the meaning of section 1012B) in

relation to those securities;".

1240D Takeovers Panel--declaration of unacceptable circumstances

may only be made in relation to a listed CCIV

The Panel may only declare under section 657A circumstances to

be unacceptable circumstances in relation to the affairs of a CCIV

if the CCIV is a listed company.

1240E Compulsory acquisition--only available for securities in a

listed CCIV

(1) Securities in a CCIV may only be compulsorily acquired or bought

out under Chapter 6A if the CCIV is a listed company.

(2) If Part 6A.1 applies to a CCIV that is a listed company at the end

of the bid period for a takeover, that Part continues to apply to the

CCIV in relation to the takeover bid even if the CCIV ceases to be

listed.

(3) If Part 6A.2 applies to a CCIV that is a listed company when a

compulsory acquisition notice under section 664C is lodged, that

Part (including Division 2 of that Part) continues to apply to the

CCIV in relation to the notice even if the CCIV ceases to be listed.

Division 2--Continuous disclosure

1240F Continuous disclosure--CCIVs

Paragraph 675(2)(c) applies in relation to securities in a CCIV in

the same way the paragraph applies in relation to securities that are

managed investment products.

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Division 3--Fundraising

1240G Fundraising rules do not apply to CCIVs

Subject to subsection 1240H(6), in Chapter 6D,

securities

does not

include a security in a CCIV.

1240H Offering securities of a CCIV or sub-fund that does not exist

(1) A person must not offer securities of a CCIV that does not exist if

the offer would give rise to an obligation to give a Product

Disclosure Statement under Chapter 7 (as that Chapter applies to

securities in a CCIV under Division 4 of Part 8B.7) if the CCIV did

exist.

(2) A person must not offer securities of a CCIV that are referable to a

sub-fund of the CCIV that has not been established if the offer

would give rise to an obligation to give a Product Disclosure

Statement under Chapter 7 (as that Chapter applies to securities in

a CCIV under Division 4 of Part 8B.7) if the sub-fund were

established.

Note 1:

For when a sub-fund is established, see section 1222T.

Note 2:

For when shares and debentures are referable to a sub-fund of a CCIV,

see sections 1230 (for shares) and 1231N (for debentures).

(3) Subsections (1) and (2) apply even if it is proposed to incorporate

the CCIV or register the sub-fund.

(4) In this section,

securities

has the same meaning as it has in

Chapter 6D (apart from section 1240G).

(5) For the purposes of subsection (2), a security referred to in

paragraph (c) or (d) of the definition of

security

in section 761A is

taken to be referable to the sub-fund of the CCIV to which the

relevant security covered by paragraph (a) or (b) of that definition

is, or would be, referable.

Note:

For example, an option to acquire by way of issue a share in a CCIV

(paragraph (d) of the definition) is referable to the sub-fund of the

CCIV to which the share (paragraph (a) of the definition) is referable.

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(6) The following provisions apply in relation to this section in the

same way the provisions apply in relation to Chapter 6D:

(a) subsections 700(2), (3) and (4);

(b) sections 702, 703 and 703A.

Division 4--Financial services and markets

1241 Application of Chapter 7 to CCIVs

Chapter 7 applies to a CCIV subject to the modifications set out in

this Division.

1241A For Chapter 7, treat the corporate director as providing

financial services etc. being provided by the CCIV

(1) This section applies to a provision of Chapter 7 that applies in

relation to:

(a) a financial services licensee; or

(b) a financial service or a financial services business; or

paragraph.

General rule

(2) For the purposes of that provision of Chapter 7:

(a) treat any conduct engaged in by, or on behalf of, a CCIV as

also being engaged in by, or on behalf of, the corporate

director of the CCIV; and

(b) treat any conduct relating to the CCIV that is engaged in by a

person (other than the corporate director of the CCIV) as also

being engaged in by that person in relation to the corporate

director of the CCIV.

(3) In subsection (2),

conduct

means an act, an omission to perform an

act or a state of affairs.

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Exceptions

(4) If the CCIV issues a security in the CCIV, then subsection (2) does

not treat the corporate director of the CCIV as also being the issuer

of the security.

(5) If the CCIV is a participant (within the meaning of Chapter 7) in:

(a) a clearing and settlement facility; or

(b) a financial market;

subsection (2) does not treat the corporate director of the CCIV as

also being a participant (within the meaning of Chapter 7) in

relation to the facility or market.

(6) Subsection (2) does not apply in any circumstances prescribed by

the regulations for the purposes of this subsection.

1241B Certain licensing concepts do not apply to CCIVs

(1) Subsection 911A(1) (about the requirement to be licensed to carry

on a financial services business) does not apply to a CCIV.

Note:

That subsection will instead apply to the corporate director of the

CCIV in relation to any financial services business carried on by the

CCIV (see subsection 1241A(2)).

(2) Subsection 911B(1) (about requirements for providing financial

services on behalf of another person) does not apply to a CCIV.

Note:

This subsection confirms that the CCIV is not subject to extra

requirements if it is viewed as providing financial services on behalf

of its corporate director.

(3) For the purposes of Chapter 7, treat a CCIV as not being a

representative (within the meaning of Part 7.6) of the corporate

director of the CCIV.

Note:

Activities of the CCIV relating to a financial service etc. are instead

treated as activities of the corporate director (see subsection

1241A(2)).

(4) For the purposes of Chapter 7, a CCIV cannot be authorised under

Division 5 (about authorised representatives of licensees) of

Part 7.6.

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Note:

Activities of the CCIV relating to a financial service etc. are instead

treated as activities of the corporate director (see subsection

1241A(2)).

1241C Extra kinds of financial services relating to CCIVs

(1) Subject to paragraph 766A(2)(b), treat subsection 766A(1) as also

providing that a person provides a

financial service

if:

(a) the person operates the business and conducts the affairs of a

CCIV; and

(b) the person is the corporate director of the CCIV.

Note:

Subsection (1) means persons other than the corporate director will

not be treated as providing that financial service if they operate the

business and conduct the affairs of the CCIV while:

(a) acting as an agent of the CCIV, or as an agent or employee of the

corporate director; or

(b) taking steps to wind up the CCIV.

(2) For the purposes of Chapter 7, each of the members of a CCIV

covered by subsection (1) is a client for the financial service

covered by that subsection.

1241D CCIV buy-back or redemption facility does not make a

market

Subsection 766D(1) does not apply to a CCIV, nor to the corporate

director of a CCIV, for:

(a) a proposed buy-back by the CCIV; or

(b) the proposed issuing or redeeming by the CCIV of:

(i) redeemable shares in the CCIV; or

(ii) redeemable preference shares in the CCIV.

1241E Certain conduct relating to CCIVs is not providing a

custodial or depository service

Treat subsection 766E(3) as also providing that none of the

following conduct constitutes providing a

custodial or depository

service

(a) operating as a CCIV;

(b) operating the business and conducting the affairs of a CCIV;

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Note:

Holding the assets of a sub-fund of a CCIV is covered by

paragraph (c) and does not constitute providing a

custodial or

depository service

1241F Australian financial services licences

(1) For the purposes of Chapter 7, a single Australian financial

services licence can cover operating the business and conducting

the affairs of more than one CCIV.

Note:

This confirms that a corporate director of several CCIVs could be

granted a single licence to operate the business and conduct the affairs

of those CCIVs.

(2) Treat subsection 911A(4) as also providing that a person is not

exempt under any paragraph of subsection 911A(2) for a financial

service they provide if:

(a) the service is operating the business and conducting the

affairs of a CCIV; and

(b) the person is the corporate director of the CCIV.

(3) Despite paragraph 912A(4)(b), paragraph 912A(1)(d) also applies

to an RSE licensee that is the corporate director of a CCIV.

(4) Despite subsection 912A(5), paragraph 912A(1)(h) also applies to

an RSE licensee that is the corporate director of a CCIV, except to

the extent that the risk relates solely to the operation of a regulated

superannuation fund by the RSE licensee.

(5) Treat subsection 912D(4) as also providing that, for the purposes

of section 912D, a breach of a core obligation is taken to be

significant

in the case of a CCIV if the breach results, or is likely

to result, in material loss or damage to a member of members of

the CCIV.

(6) In this section:

regulated superannuation fund

has the same meaning as in the

Superannuation Industry (Supervision) Act 1993

RSE licensee

has the same meaning as in the

Superannuation

Industry (Supervision) Act 1993

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1241G Immediate suspensions or cancellations of licences

Treat subsection 915B(3) as also providing that ASIC may suspend

or cancel an Australian financial services licence held by a body

corporate, by giving written notice to the body, if:

(a) the body is the corporate director of a CCIV; and

(b) the CCIV or the members of the CCIV have suffered, or are

likely to suffer, loss or damage because the corporate director

or the CCIV has breached this Act.

1241H Restriction on use of certain words or expressions

Treat subsection 923A(1) as also providing that a CCIV

contravenes that subsection if the CCIV assumes or uses, in this

jurisdiction, a restricted word or expression in relation to a

financial services business or financial service.

1241J Agreements with certain unlicensed persons

(1) Subdivision B of Division 11 of Part 7.6 also applies to an

agreement entered into by:

(a) a CCIV (in that Subdivision called the

non-licensee

); and

(b) another person (in that Subdivision called the

client

) who is

not a financial services licensee;

that constitutes, or relates to, the provision of a financial service by

the corporate director of the CCIV (in that Subdivision called the

corporate director

) if:

services business carried on by the corporate director; and

(d) the corporate director does not hold an Australian financial

services licence covering the provision of the financial

service; and

(e) the corporate director is not exempt from the requirement to

hold such a licence.

Note 1:

A CCIV does not need to be licensed to provide a financial service,

instead the CCIV's corporate director needs to be (see subsection

1241B(1)). This means section 924A will work appropriately only if

the agreement mentioned in that section is between the corporate

director and the client.

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Note 2:

This section works similarly to section 924A to ensure that the

appropriate result happens if the agreement mentioned in

section 924A is instead between the CCIV and the client.

Note 3:

This section applies whether the financial service is provided to the

client as a wholesale client or as a retail client.

(2) Subdivision B of Division 11 of Part 7.6 applies to the agreement

whether or not anyone else is a party to the agreement.

(3) That Subdivision applies to the agreement as if

subsections 925A(4) and (5) were replaced by the following:

"(4) The client is not entitled to give a notice under this section if,

within a reasonable period before the agreement was entered into,

the non-licensee informed the client (whether or not in writing) that

the corporate director did not hold an Australian financial services

licence.

(5) If, at a time when an Australian financial services licence held by

the corporate director was suspended, the non-licensee informed

the client that the licence was suspended, the non-licensee is to be

taken for the purposes of subsection (4) to have informed the client

at that time that the corporate director did not hold the licence.".

1241K Treat the CCIV as a professional investor

Treat the definition of

professional investor

in section 9 as also

meaning a CCIV if and while the corporate director of the CCIV

holds an Australian financial services licence.

1241L Financial services disclosure does not apply to operating the

business and conducting the affairs of CCIVs

Part 7.7 does not apply to a financial service if:

(a) the financial service consists only of operating the business

and conducting the affairs of a CCIV; and

(b) the financial service is provided by the corporate director of

the CCIV.

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1241M Financial records of the corporate director of a CCIV

When section 988E applies to a licensee because the licensee is the

corporate director of a CCIV, treat that section as requiring the

particulars of the matters in paragraphs 988E(a) to (g) to be shown

so that they are clearly identifiable for each sub-fund of the CCIV.

Note:

Section 988E is about the categories of information to be shown in the

licensee's financial records.

1241N Prohibition on hawking of securities in a CCIV

(1) Treat subsection 992A(2) as also providing that

subsection 992A(1) does not apply to the offering of securities in a

CCIV, hawking of which is prohibited by section 992AA (as

extended by this section).

(2) Subsection 992AA(1) also applies as if the reference in that

subsection to interests in managed investment schemes included a

reference to securities in a CCIV.

Note:

Failure to comply with subsection 992AA(1) is an offence (see

subsection 1311(1)).

(3) Subsection 992AA(1), as it applies because of subsection (2) of

this section, does not apply to an offer of securities in a CCIV if:

(a) the offer is not to a retail client; or

(b) the CCIV is a listed company and the offer is an offer of

securities in the CCIV made by telephone by a financial

services licensee; or

through whom the client has acquired or disposed of a

security in a CCIV in the previous 12 months.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

(4) For the purposes of subsection 992AA(1), as it applies because of

subsection (2) of this section:

(a) a reference to offering securities in a CCIV for issue includes

a reference to inviting an application for the issue of

securities in the CCIV; and

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(b) a reference to offering securities in a CCIV for sale includes

a reference to inviting an offer to purchase securities in the

CCIV.

(5) Subsection 736(1) (about prohibiting the hawking of securities)

does not apply to securities in a CCIV.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the

Criminal Code

1241P Modifications of Part 7.8A

(1) Paragraph 994B(3)(d) (about an exception to making a target

market determination for a financial product) does not apply to a

fully paid ordinary share in a CCIV.

(2) If a contravention referred to in paragraph 994M(1)(a) is a

contravention by a CCIV, subsection 994M(1) applies to authorise

recovery by action against the CCIV's corporate director instead of

against the CCIV.

Note:

Subsection 994M(1) authorises a client to recover the amount of loss

or damage suffered because of certain contraventions.

1241Q Part 7.9 applies to the issue or sale of securities in a CCIV

(1) Despite subsection 1010A(1), Part 7.9 applies to securities in a

CCIV.

Note:

This and other sections in this Part extend and modify how Part 7.9

applies for a CCIV. A consequence is that, for a CCIV, references

outside of Part 7.9 to provisions of Part 7.9 become references to those

provisions as they apply because of this Part.

(2) Despite subsection 1010B(1), Part 7.9 applies in relation to the

issue of any security in a CCIV.

(3) If the corporate director of a CCIV is, apart from this subsection, a

regulated person (within the meaning of Division 2 of Part 7.9)

because it is the seller of a security in the CCIV, treat the CCIV as

being the regulated person within the meaning of that Division

instead of the corporate director.

Note 1:

The corporate director of the CCIV will continue to be a regulated

person for any other case.

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Note 2:

The CCIV will also be the regulated person for an issue of securities

in the CCIV (see subsection 1241A(4) and section 1011B).

(4) If a reference in Part 7.9 to a seller of a financial product applies to

the corporate director of a CCIV as the seller of a security in the

CCIV, treat the reference as referring to the CCIV.

(5) Subsections (3) and (4) apply despite subsection 1241A(2).

Note:

This subsection confirms that the general rule in subsection 1241A(2)

does not affect subsections (3) and (4) of this section.

1241R Product Disclosure Statements--when a security in a CCIV

is of the same kind as another product

For the purposes of sections 1012C and 1012D (as affected by this

Part), a security in a CCIV that is referable to a sub-fund of the

CCIV is of the same kind as another product only if the other

product:

(a) is also a security in the CCIV; and

(b) is also referable to that sub-fund of the CCIV; and

as the first-mentioned security.

1241S Product Disclosure Statements--situations when not required

for CCIVs

No consideration to be provided

(1) Paragraph 1012D(5)(b) also applies to the case where the financial

product is not an option and is a security in a CCIV.

Client is associated with the CCIV

(2) Treat section 1012D as also providing that, in a recommendation

situation, an issue situation or a sale situation, the regulated person

does not have to give the client a Product Disclosure Statement if:

(a) the financial product is a security in a CCIV; and

(b) the client is associated (within the meaning of subsection (3)

of this section) with the CCIV.

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(3) For the purposes of subsection (2), the client is associated with the

CCIV if the client is:

(a) the corporate director of the CCIV; or

(b) a director or secretary of that corporate director; or

body corporate of that corporate director; or

(d) a spouse, parent, child, brother or sister of a person who is a

director or senior manager of:

(i) that corporate director; or

(ii) a related body corporate of that corporate director; or

(e) a body corporate controlled by a person referred to in

paragraph (a), (b), (c) or (d).

Dividend reinvestment plan or bonus share plan

(4) Treat section 1012D as also providing that, in a recommendation

situation or issue situation, the regulated person does not have to

give the client a Product Disclosure Statement for a fully-paid

share in a CCIV if:

(a) the client already holds a share, of the same kind, in the

CCIV; and

(b) either:

(i) in a recommendation situation--the advice that

constitutes the relevant conduct relates to an offer made

under a dividend reinvestment plan or bonus share plan;

(ii) in an issue situation--the offer or issue that constitutes

the relevant conduct is made under a dividend

reinvestment plan or bonus share plan.

Note:

For when such a share is of the same kind, see section 1241R.

Compromise or arrangement under Part 5.1

(5) Treat section 1012D as also providing that, in an issue situation or

a sale situation, the regulated person does not have to give the

client a Product Disclosure Statement if the issue situation or sale

situation is an offer:

(a) of securities in a CCIV; and

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(b) made under a compromise or arrangement under Part 5.1

approved at a meeting held as a result of an order under

subsection 411(1) or (1A).

Rights issues

(6) Subsection 1012DAA(3) also applies to contraventions of the

following provisions:

(a) if the relevant product is a security in a CCIV--the

provisions of Chapter 2M (as affected by Division 4 of

Part 8.4B), or the provisions of that Division, as they:

(i) apply to the CCIV; or

(ii) apply for a sub-fund of the CCIV;

(b) if the relevant product is a security in a CCIV--section 675

as it applies to the CCIV.

(7) Treat subsection 1012DAA(7) as:

(a) providing that paragraph 1012DAA(7)(d) applies only if the

relevant product is an interest in a registered scheme; and

(b) also including the following paragraph:

"(da) if the relevant product is a security in a CCIV--states that, as

at the date of the notice, the CCIV has complied with the

provisions of Chapter 2M (as affected by Division 4 of

Part 8.4B), and the provisions of that Division, as they:

(i) apply to the CCIV; and

(ii) apply for each sub-fund of the CCIV; and".

Small scale offerings

(8) Section 1012E also applies to financial products that are securities

in a CCIV. For the purposes of that section, to the extent that those

securities are referable to a sub-fund of the CCIV, treat the:

(a) 20 purchasers ceiling (subsections 1012E(6) and (7)); and

(b) $2 million ceiling (subsections 1012E(6) and (7));

as applying only to financial products that are securities referable

to that sub-fund of the CCIV.

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1241T Product Disclosure Statements--content requirements

Main requirements

(1) Treat subsection 1013D(1) as also including the following

paragraph:

"(la) if the product is a share in a CCIV, and the CCIV's

constitution makes provision for acquisitions described in

paragraph 1223G(e)--a statement to the effect that the CCIV

may acquire, in respect of any of its sub-funds, one or more

shares that are referable to another of its sub-funds; and".

(2) Treat subsection 1013D(2A) as also including securities in a CCIV.

Extra requirements for ED securities in a CCIV

(3) Section 1013I also applies as if:

(a) references in that section to managed investment products

included references to securities in a CCIV; and

(b) references in that section to a scheme included references to

the CCIV.

1241U Product Disclosure Statements--replacement statements

Section 1014G also applies as if the reference in

paragraph 1014G(a) to an interest in a managed investment scheme

included a reference to an interest that is a security in a CCIV.

1241V Product Disclosure Statements--lodging with ASIC

(1) Section 1015B also applies as if:

(a) a reference in that section to a managed investment product

included a reference to a security in a CCIV; and

(b) paragraph 1015B(1)(ba) were not enacted; and

financial product is a security that:

(i) is in a CCIV; and

(ii) is referable to a sub-fund of the CCIV that is an

Australian passport fund.

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(2) When section 1015B so applies, treat subsection 1015B(2) as

instead providing that the lodgement with ASIC of a Statement in

relation to a security in the CCIV requires the consent of every

director of the corporate director of the CCIV.

Note:

This is the case whether the Statement is an issue Statement or a sale

Statement.

1241W Product Disclosure Statements--use of application forms

Treat the definition of

relevant financial product

subsection 1016A(1) as also meaning a security in a CCIV.

1241X Product Disclosure Statements--if lodged, then security not

to be issued or sold before specified period

Section 1016B does not apply in relation to a financial product to

which a Product Disclosure Statement relates if the financial

product is a security that:

(a) is in a CCIV; and

(b) is referable to a sub-fund of the CCIV that is an Australian

passport fund.

Note:

This section does not prevent section 1016B from applying in relation

to a security in the CCIV referable to any other kind of sub-fund of the

CCIV.

1241Y Remedies for person acquiring financial product under

defective Product Disclosure Document

If, for the purposes of subsection 1016F(2), the responsible person

is a CCIV, treat the reference in that subsection to the directors of

the responsible person as if it were instead a reference to the

directors of the corporate director of the CCIV.

1241Z Disclosure obligations of issuers of securities in CCIVs

(1) Subsection 1017B(2) also applies in relation to a financial product

that is an ED security in a CCIV.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection 1017B(2) (see subsection 13.3(3) of the

Criminal Code

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(2) Paragraph 1017D(1)(b) also applies as if it referred to a product

that is a security in a CCIV.

1241ZA Cooling-off periods

Division 5 of Part 7.9 also applies as if securities in a CCIV were

another class of financial product covered by

paragraph 1019A(1)(a).

1241ZB Unsolicited offers to purchase securities in CCIVs

off-market

For financial products that are securities in a CCIV, treat

paragraph 1019D(1)(d) as also providing that the offer is not made

to the corporate director of the CCIV.

1241ZC Product intervention orders

If a contravention referred to in paragraph 1023Q(1)(a) is a

contravention by a CCIV, subsection 1023Q(1) applies to authorise

recovery by action against the CCIV's corporate director instead of

against the CCIV.

Note:

Subsection 1023Q(1) authorises a client to recover the amount of loss

or damage suffered because of contraventions of a product

intervention order.

1241ZD Insider trading--exceptions

Buy-back of shares in a CCIV

(1) Treat section 1043B as also providing that subsection 1043A(1)

does not apply in respect of the acquisition of shares as part of a

buy-back by a CCIV if the amount paid to each affected member of

the CCIV for the buy-back is calculated (so far as is reasonably

practicable) by reference to:

(a) the underlying value of the assets of the sub-fund to which

the shares are referable; less

(b) any reasonable charge for the buy-back.

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Redemption of shares in a CCIV

(2) Treat section 1043B as also providing that subsection 1043A(1)

does not apply in respect of the redemption of shares in a CCIV if

the amount paid to each affected member on redemption is

calculated (so far as is reasonably practicable) by reference to:

(a) the underlying value of the assets of the sub-fund to which

the shares are referable; less

(b) any reasonable charge for that redemption.

Officer or employee is aware of certain transactions

(3) Subsections 1043I(2) and (3) apply to a body corporate that is a

CCIV as if the reference in subsection 1043I(2) to an officer or

employee of the body corporate were instead a reference to:

(a) the corporate director of the CCIV acting on behalf of the

CCIV; or

(b) an officer or employee (an

official

) of the corporate director

of the CCIV acting:

(i) on behalf of the CCIV; and

(ii) within the scope of the official's actual or apparent

authority in relation to the corporate director;

and as if subsection 1043I(3) were not enacted, and the reference to

that subsection in subsection 1043I(2) were omitted.

(4) If the second person for the purposes of section 1043J is a CCIV,

that section applies as if the reference in subsection 1043J(1) to the

first person were instead a reference to:

(a) an agent of the CCIV acting:

(i) on behalf of the CCIV; and

(ii) within the scope of the agent's actual or apparent

authority in relation to the CCIV; or

(b) the corporate director of the CCIV acting on behalf of the

CCIV; or

official

) of the corporate director

of the CCIV acting:

(i) on behalf of the CCIV; and

(ii) within the scope of the official's actual or apparent

authority in relation to the corporate director;

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and as if subsection 1043J(2) were not enacted, and the reference

to that subsection in subsection 1043J(1) were omitted.

Part 8B.8--Miscellaneous

1242 Director identification numbers

Treat subsection 1272B(1) as also providing that an

eligible officer

does not include the corporate director of a CCIV.

1242A Registers

Treat paragraph 1274(2)(a) as also providing that the constitution

of a wholesale CCIV that is lodged with ASIC may not be

inspected by a person.

1242B Inspection of books

Section 1300 applies to a CCIV as if the CCIV were a proprietary

company.

1242C Falsification of books

(1) Subsection 1307(1) applies as if:

(a) each of the following were an officer of a CCIV:

(i) an officer of the CCIV;

(ii) an officer of the corporate director of the CCIV; and

(b) each of the following were a former officer of a CCIV:

(i) a former officer of the CCIV;

(ii) a former officer of the corporate director of the CCIV;

and

employee of the CCIV; and

(d) a former employee of the corporate director of a CCIV were

a former employee of the CCIV.

(2) Subparagraphs (1)(a)(i) and (b)(i) are included for the avoidance of

doubt.

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1242D Application of Part 9.4

(1) Sections 1309 and 1317 apply as if:

(a) each of the following were a director of a CCIV:

(i) the corporate director of the CCIV;

(ii) a director of the corporate director of the CCIV; and

(b) each of the following were an officer of a CCIV:

(i) an officer of the CCIV;

(ii) an officer of the corporate director of the CCIV; and

employee of the CCIV; and

(d) each of the following were an agent of a CCIV:

(i) an agent of the CCIV;

(ii) an agent of the corporate director of the CCIV.

(2) Subparagraphs (1)(a)(i), (b)(i) and (d)(i) are included for the

avoidance of doubt.

1242E Disclosures qualifying for protection under Part 9.4AAA

Eligible whistleblower

(1) Treat section 1317AAA as also providing that an individual is an

eligible whistleblower

in relation to a regulated entity that is a

CCIV if the individual is, or has been, any of the following:

(a) an officer of the corporate director of the CCIV;

(b) an employee of the corporate director of the CCIV;

(d) a dependant of an individual referred to in paragraph (a) or

(b), or of such an individual's spouse.

Eligible recipient

(2) Treat subsection 1317AAC(1) as also providing that each of the

following is an

eligible recipient

in relation to a regulated entity

that is a CCIV:

(a) an officer of the corporate director of the CCIV;

(b) a senior manager of the corporate director of the CCIV.

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Whistleblower policies

(3) Treat subsection 1317AI(5) as also providing that the matters that

must be set out in a policy for a corporate director of a CCIV also

include the following:

(a) information about to whom disclosures in relation to the

CCIV that qualify for protection under Part 9.4AAA may be

made, and how they may be made;

(b) information about how the CCIV will support whistleblowers

and protect them from detriment;

that qualify for protection under Part 9.4AAA;

(d) information about how the policy is to be made available to

officers of the CCIV;

(e) any matters prescribed by the regulations for the purposes of

this paragraph.

1242F Powers of Courts--irregularities

Subparagraph 1322(1)(b)(i) applies to:

(a) a meeting of the members of a sub-fund of the CCIV in the

same way as it applies in relation to a meeting of a

corporation; and

(b) a joint meeting of creditors and members of a sub-fund of a

CCIV in the same way as it applies in relation to a joint

meeting of creditors and members of a corporation.

1242G Fees payable to the Commonwealth

Subsection 1351(4) has effect in relation to a fee imposed under

the

Corporations (Review Fees) Act 2003

payable to the

Commonwealth by a CCIV in relation to a review date in a year as

if paragraph 1351(4)(a) were substituted with the following:

"(a) all of the following apply:

(i) ASIC has given notice of the proposed deregistration of

a sub-fund of the CCIV in accordance with paragraph

1239(5)(c), and published notice of the proposed

deregistration of the sub-fund in accordance with

paragraph 1239(5)(d);

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(ii) as a result of ASIC deregistering the sub-fund, ASIC

will be required to deregister the CCIV under section

1239K;

(iii) the review date for that year falls in the 2 month period

before or after the publication of the notice published in

accordance with paragraph 1239(5)(d); or".

Part 8B.9--Subordinate legislation relating to

CCIVs

1243 ASIC's power to make exemption and modification orders

(1) This section applies in relation to the following (the

CCIV

provisions

(a) Part 8B.2 (registration of CCIVs);

(b) Part 8B.3 (corporate governance of CCIVs);

sub-funds);

(d) Division 4 of Part 8B.4 (financial reports and audits of

CCIVs);

(e) Division 9 of Part 8B.6 (deregistration and transfer of

registration);

(f) Part 8B.7 (control, financial services and disclosure).

(2) ASIC may do either or both of the following:

(a) exempt from all or specified provisions of the CCIV

provisions:

(i) a specified CCIV, a specified class of CCIVs or all

CCIVs; or

(ii) a specified class of sub-funds of CCIVs, all sub-funds of

a specified class of CCIVs, or all sub-funds of all

CCIVs; or

(iii) a specified entity, a specified class of entities or all

entities, in relation to a specified CCIV, a specified

class of CCIVs or all CCIVs; or

(iv) a specified entity, a specified class of entities or all

entities, in relation to a specified class of sub-funds of

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CCIVs, all sub-funds of a specified class of CCIVs, or

all sub-funds of all CCIVs;

(b) declare that the CCIV provisions apply in relation to:

(i) a specified CCIV, a specified class of CCIVs or all

CCIVs; or

(ii) a specified class of sub-funds of CCIVs, all sub-funds of

a specified class of CCIVs, or all sub-funds of all

CCIVs; or

(iii) a specified entity, a specified class of entities or all

entities, in relation to a specified CCIV, a specified

class of CCIVs or all CCIVs; or

(iv) a specified entity, a specified class of entities or all

entities, in relation to a specified class of sub-funds of

CCIVs, all sub-funds of a specified class of CCIVs, or

all sub-funds of all CCIVs;

as if specified provisions were omitted, modified or varied as

specified in the declaration.

(3) The exemption or declaration may:

(a) relate to a specified security, a specified class of securities or

all securities; and

(b) relate to any other matter generally or as specified.

(4) An exemption may apply unconditionally or subject to specified

conditions. A person to whom a condition specified in an

exemption applies must comply with the condition. The Court may

order the person to comply with the condition in a specified way.

Only ASIC may apply to the Court for the order.

Exemptions and declarations relating to all or a class of persons

(5) An exemption or declaration must be made by legislative

instrument if it relates to:

(a) all CCIVs, a specified class of CCIVs, or 2 or more specified

CCIVs; or

(b) all sub-funds of all CCIVs, all sub-funds of a specified class

of CCIVs, or a specified class of sub-funds of CCIVs; or

entities.

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Exemptions and declarations relating to specified persons

(6) Subject to subsection (5), an exemption or declaration must be

made by notifiable instrument if it relates to a specified CCIV or

specified entity.

(7) An exemption or declaration that relates to a specified CCIV may

apply to the CCIV in respect of a specified sub-fund, a specified

class of sub-funds or all sub-funds of the CCIV.

(8) An exemption or declaration that relates to a specified entity may

apply to the entity in respect of a specified sub-fund, a specified

class of sub-funds or all sub-funds of a specified CCIV.

(9) ASIC must also give a copy of an exemption or declaration that

relates to a specified CCIV or a specified entity to the CCIV or

entity. ASIC must do so as soon as is reasonably practicable after

the exemption or declaration is made.

1243A Modification by regulations

(1) The regulations may modify the operation of this Chapter or any

other provisions of this Act in relation to:

(a) a specified CCIV; or

(b) a specified class of CCIVs; or

(d) a specified class of sub-funds of CCIVs; or

(e) all sub-funds of a specified class of CCIVs; or

(f) all sub-funds of all CCIVs.

(2) Regulations made for the purposes of subsection (1) in relation to a

specified CCIV may apply to the CCIV in respect of a specified

sub-fund, a specified class of sub-funds or all sub-funds of the

CCIV.

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Schedule 2--Corporate collective investment

vehicles: other amendments of the

Corporations Act 2001

1 Section 9 (definition of affairs)

Repeal the definition, substitute:

affairs

(a) in relation to a body corporate (other than a CCIV)--has, in

the provisions referred to in section 53, a meaning affected

by that section; and

(b) in relation to a body corporate that is a CCIV--has, in the

provisions referred to in section 53AAA, a meaning affected

by that section.

2 Section 9

Insert:

ARFN

(short for Australian Registered Fund Number) is the

number given by ASIC to a sub-fund of a CCIV on registration of

the sub-fund (see subsection 1222S(3)).

3 Section 9 (definition of assets)

Repeal the definition, substitute:

assets

(a) in relation to a financial services licensee--means all the

licensee's assets (whether or not used in connection with the

licensee's Australian financial services licence); and

(b) in relation to a sub-fund of a CCIV--has the meaning given

by section 1233H.

4 Section 9 (definition of Australian passport fund)

Repeal the definition, substitute:

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Australian passport fund

means:

(a) a registered scheme that is registered as a passport fund under

Part 8A.3; or

(b) a sub-fund of a retail CCIV that is registered as a passport

fund under Part 8A.3.

5 Section 9

Insert:

CCIV

: see

corporate collective investment vehicle

6 Section 9 (after paragraph (a) of the definition of Chapter 5

body corporate)

Insert:

(aa) that is a CCIV of which one or more sub-funds is being

wound up; or

7 Section 9 (definition of class)

Repeal the definition, substitute:

class

has:

(a) in relation to shares in a CCIV--a meaning affected by

sections 57 and 1230A; and

(b) in relation to shares (other than shares in a CCIV) or interests

in a managed investment scheme--a meaning affected by

section 57; and

Chapter 6, 6A or 6C--a meaning affected by

subsection 605(2).

8 Section 9 (at the end of the definition of contributory)

Add:

; and (d) in relation to a sub-fund of a CCIV--a person who is a

contributory of the CCIV under paragraph (a), if the person is

liable as mentioned in subparagraph (a)(i) as a member or

past member of the sub-fund, or is a holder of shares

referable to the sub-fund.

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9 Section 9

Insert:

corporate collective investment vehicle

CCIV

means a company

that is registered as a corporate collective investment vehicle under

this Act.

corporate director

of a CCIV has the meaning given by subsection

1224(3).

creditor

of a sub-fund of a CCIV means a creditor of the CCIV, if

the debt or claim is, to any extent, a liability of the sub-fund.

10 Section 9 (definition of entity)

Omit "and 8A", substitute ", 8A and 8B,".

11 Section 9 (paragraph (a) of the definition of expectation)

After "managed investment scheme", insert "or a sub-fund of a CCIV".

12 Section 9 (definition of extraordinary resolution)

After "registered scheme", insert ", a CCIV or a sub-fund of a CCIV".

13 Section 9 (definition of financial benefit)

Omit "Chapter 2E", substitute "Chapters 2E and 8B".

14 Section 9 (definition of insolvent)

Repeal the definition, substitute:

insolvent

(a) in relation to a person--has the meaning given by

subsection 95A(2); and

(b) in relation to a sub-fund of a CCIV--has the meaning given

by subsection 1231A(3).

15 Section 9

Insert:

liabilities

, in relation to a sub-fund of a CCIV, has the meaning

given by section 1233L.

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16 Section 9 (definition of listed)

Repeal the definition, substitute:

listed

(a) a company, managed investment scheme or other body is

listed

if it is included in the official list of a prescribed

financial market operated in this jurisdiction; and

(b) a retail CCIV that is not listed because of paragraph (a) is

listed

if:

(i) the retail CCIV has only one sub-fund; and

(ii) that sub-fund is included in the official list of a

prescribed financial market operated in this jurisdiction;

and

listed

if:

(i) the sub-fund is included in the official list of a

prescribed financial market operated in this jurisdiction;

(ii) the retail CCIV is listed because of paragraph (a).

17 Section 9 (before paragraph (e) of the definition of

member)

Insert:

a member under subsection 1222Q(3); or

18 Section 9 (definition of officer of a corporation)

After "of a corporation" (first occurring), insert "(other than a CCIV)".

19 Section 9

Insert:

officer

of a corporation that is a CCIV has the meaning given by

section 1224B.

20 Section 9 (at the end of the definition of professional

investor)

Add:

Note:

A CCIV can also be a professional investor, see section 1241K.

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21 Section 9 (definition of public company)

After "a proprietary company", insert "or a CCIV".

22 Section 9

Insert:

redeemable share

, in a CCIV, has the meaning given by subsection

1230B(4).

referable

(a) in relation to a sub-fund, and a share in a CCIV--has the

meaning given by subsection 1230(1); and

(b) in relation to a sub-fund, and a class of shares in a CCIV--

has the meaning given by subsection 1230A(2); and

CCIV--has the meaning given by subsection 1231N(1).

23 Section 9 (definition of registered office)

Omit "in relation to a body corporate, means the body's registered

office", substitute "in relation to a company or registered body, means

the registered office of the company or body".

24 Section 9 (paragraph (a) of the definition of related party)

Repeal the paragraph, substitute:

(a) when used in Chapter 2E (other than in relation to a CCIV)

has the meaning given by section 228; and

(aa) when used in Chapters 2E and 8B, in relation to a CCIV, has

the meaning given by section 1227E; and

25 Section 9

Insert:

retail CCIV

has the meaning given by subsection 1222J(1).

26 Section 9 (definition of solvent)

Repeal the definition, substitute:

solvent

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(a) in relation to a person--has the meaning given by

subsection 95A(1); and

(b) in relation to a sub-fund of a CCIV--has the meaning given

by subsection 1231A(2).

27 Section 9 (paragraph (b) of the definition of special

resolution)

After "registered scheme", insert ", a CCIV or a sub-fund of a CCIV".

28 Section 9

Insert:

sub-fund

, of a CCIV, has the meaning given by subsection

1222Q(1).

wholesale CCIV

has the meaning given by subsection 1222J(2).

29 Section 51E (definition of secured creditor)

Repeal the definition, substitute:

secured creditor

(a) of a corporation means a creditor of the corporation, if the

debt owing to the creditor is secured by a security interest;

and

(b) of a sub-fund of a CCIV means a secured creditor of the

CCIV, if the debt owing to the creditor is, to any extent, a

liability of the sub-fund.

30 At the end of section 51F

Add:

References to property of a sub-fund of a CCIV

(3) A reference in a provision of this Act to property of a sub-fund of a

CCIV (including a substituted reference provided for by Part 8B.6)

is a reference to something that is:

(a) property of the CCIV (within the meaning of the provision);

and

(b) an asset of the sub-fund of the CCIV.

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Note:

For assets of a sub-fund of a CCIV, see section 1233H.

31 Section 53 (heading)

Repeal the heading, substitute:

53 Affairs of a body corporate (other than a CCIV)

32 Section 53

After "body corporate" (first occurring), insert "(other than a CCIV)".

33 After section 53

Insert:

53AAA Affairs of a CCIV

(1) For the purposes of the provisions referred to in subsection (3), the

affairs of a body corporate that is a CCIV include anything that

would be included in the affairs of a body corporate under

section 53.

(2) In applying paragraph 53(d) to the CCIV:

(a) disregard subparagraphs (ii) and (iia); and

(b) treat the reference in subparagraph (iv) to the body as instead

being a reference to a sub-fund of the CCIV; and

the body as instead being a reference to a liquidator or

provisional liquidator of a sub-fund of the CCIV.

(3) The provisions for subsection (1) are the following:

(a) a provision referred to in section 53;

(b) a provision prescribed for the purposes of section 53;

(d) section 1224F (about who can be the director of a CCIV);

(e) section 1224J (about corporate director must operate the

CCIV);

(f) section 1237V (about Court order imposing liability on

unlicensed person operating CCIV);

(g) section 1241C (about extra kinds of financial services

relating to CCIVs);

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(h) section 1241E (about when conduct does not constitute

providing a custodial or depository service in relation to a

CCIV);

(i) section 1241F (about Australian financial services licences to

conduct the affairs of a CCIV);

(j) section 1241L (about financial services disclosure does not

apply to conducting the affairs of CCIVs);

(k) a provision of this Act prescribed by the regulations for the

purposes of this paragraph.

34 Paragraph 53AA(a)

After "53", insert "or 53AAA".

35 At the end of subsection 57(1)

Add:

Note:

A CCIV must have a minimum of one class of shares per sub-fund:

see section 1230A.

36 Section 64A

Omit "and 8A", substitute ", 8A and 8B".

37 At the end of subsection 92(4)

Add:

Note:

However, in Chapter 6D,

securities

does not include securities in a

CCIV: see section 1240G.

38 At the end of section 111AF

Add:

(3) Securities (except debentures) in a class of securities of a CCIV are

ED securities

if 100 or more people hold securities in that class as

a result of offers that gave rise to obligations to give Product

Disclosure Statements (whether or not all in the same terms) under

Chapter 7 (as that Chapter applies to those securities under

Division 4 of Part 8B.7).

39 At the end of subsection 111AR(1)

Add:

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; (e) Division 4 of Part 8B.4 as it applies to disclosing entities;

(f) Division 2 of Part 8B.7 as it applies to disclosing entities.

40 Subsection 117(1) (note)

Omit "Note", substitute "Note 1".

41 At the end of subsection 117(1)

Add:

Note 2:

For modifications applicable to applications to register a CCIV, see

section 1222A.

42 Subsection 118(1) (note)

Omit "Note", substitute "Note 1".

43 At the end of subsection 118(1)

Add:

Note 2:

For modifications applicable to applications to register a CCIV, see

section 1222C.

44 At the end of subsection 120(1)

Add:

Note:

For the equivalent provision for a CCIV, see section 1222D.

45 Subsection 124(1) (note)

Omit "Note", substitute "Note 1".

46 At the end of subsection 124(1)

Add:

Note 2:

A CCIV's power to issue shares is affected by sections 1230 and

1230B.

47 At the end of subsection 127(1)

Add:

Note 3:

Because a CCIV has no natural person directors and no company

secretary, it executes documents through the directors and company

secretary of its corporate director: see section 1223.

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48 Subsection 127(2) (note)

Omit "Note", substitute "Note 1".

49 At the end of subsection 127(2)

Add:

Note 2:

Because a CCIV has no natural person directors and no company

secretary, it executes documents through the directors and company

secretary of its corporate director: see section 1223.

50 At the end of subsection 135(1)

Add:

Note 3:

Paragraph (a) does not apply for CCIVs: see section 1223A.

51 Subsection 136(1) (note)

Omit "Note", substitute "Note 1".

52 At the end of subsection 136(1)

Add:

Note 2:

Section 1223B applies instead of this section in relation to the

constitution of a CCIV (see also subsection 1223D(6)).

53 At the end of subsection 169(3)

Add:

Note 3:

A CCIV's register must also show the sub-funds relevant to each

share: see subsection 1222ZB(1).

54 At the end of subsection 170(1)

Add:

Note:

A CCIV's register must also show the sub-funds relevant to each

share or option: see subsection 1222ZB(2).

55 Subsection 171(1) (note)

Omit "Note", substitute "Note 1".

56 At the end of subsection 171(1)

Add:

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Note 2:

A CCIV's register must also show the sub-funds relevant to each

debenture: see subsection 1222ZB(3).

57 At the end of subsection 179(1)

Add:

Note:

For a CCIV, there are additional duties: see Divisions 2 and 3 of

Part 8B.3.

58 Division 1 of Part 2D.1 (after the heading)

Insert:

Note:

This Division applies in relation to CCIVs in a modified form: see sections 1224C.

59 At the end of subsection 188(1)

Add:

Note 3:

This subsection has an extended operation in relation to the secretary

of a corporate director of a CCIV: see sections 1225A and 1225B.

60 Division 2 of Part 2D.1 (after the heading)

Insert:

Note:

This Division applies in relation to CCIVs in a modified form: see sections 1225C and

1224K.

61 Subsection 198D(1) (note)

Omit "Note", substitute "Note 1".

62 At the end of subsection 198D(1)

Add:

Note 2:

If the company is a CCIV, section 1224L applies instead of this

section.

63 Subsection 198F(1) (note)

Omit "Note", substitute "Note 1".

64 At the end of subsection 198F(1)

Add:

Note 2:

This section also applies to a director of a corporate director of a

CCIV: see section 1225D.

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65 At the end of subsection 198G(1)

Add:

Note:

For a CCIV, section 1224Q applies instead of this section.

66 At the end of subsection 199A(1)

Add:

Note:

This section is modified for the director of a wholesale CCIV: see

subsection 1224D(7). This section has an extended operation in

relation to officers and auditors of the corporate director of a CCIV:

see section 1225E.

67 At the end of subsection 199B(1)

Add:

Note:

This section has an extended operation in relation to officers and

auditors of the corporate director of a CCIV: see section 1225E.

68 At the end of subsection 200B(1)

Add:

Note 4:

This section has a modified operation in relation to CCIVs: see section

1224ZD.

69 At the end of subsection 200C(1)

Add:

Note:

This section has a modified operation in relation to CCIVs: see section

1224ZD.

70 Part 2D.3 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV: see section 1224E.

71 Part 2D.4 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV: see section 1224E.

72 Part 2D.5 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV: see section 1224E.

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73 Part 2D.6 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV: see section 1224E.

74 Part 2D.7 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV: see section 1224E.

75 Part 2D.8 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV: see section 1224E.

76 Chapter 2E (after the heading)

Insert:

Note:

This Chapter applies to a CCIV with modifications: see Division 5 of Part 8B.3.

77 At the end of subsection 208(1)

Add:

Note 3:

This section applies to a CCIV in a modified form: see section 1227A.

78 At the end of subsection 209(2)

Add:

Note 3:

This section has an extended operation in relation to a retail CCIV: see

section 1227A.

79 Section 232 (note)

Repeal the note, substitute:

Note 1:

For

affairs

, see sections 53 and 53AAA.

Note 2:

The effect of paragraph (d) is extended in relation to a sub-fund of a

CCIV: see section 1227F.

80 At the end of subsection 233(1)

Add:

Note:

If the company is a CCIV there are modifications for

paragraphs (1)(a) and (h) (see section 1227G and Part 8B.6).

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81 At the end of subsection 233(3)

Add:

Note:

If the company is a CCIV the reference to section 136 is modified (see

subsection 1227G(2)).

82 Subsection 237(4) (note)

Omit "Note", substitute "Note 1".

83 At the end of subsection 237(4)

Add:

Note 2:

For who is a third party of a CCIV, see section 1227H.

84 At the end of subsection 246B(1)

Add:

Note:

A CCIV must have a minimum of 1 class of shares per sub-fund: see

section 1230A.

85 At the end of subsection 246B(2)

Add:

Note:

This subsection applies to a CCIV in a modified form: see section

1227J.

86 At the end of subsection 246F(3)

Add:

Note:

This subsection also applies to a CCIV: see section 1227L.

87 Part 2G.1 (after the heading)

Insert:

Note:

Section 1228 applies instead of this Part in relation to a CCIV.

88 Part 2G.2 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV or its members. Instead, section 1228A applies a

modified version of Part 2G.4.

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89 Part 2G.3 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV or its members. Instead, section 1228A applies a

modified version of Part 2G.4.

90 Part 2G.4 (after the heading)

Insert:

Note:

Section 1228A applies a modified version of this Part in relation to a CCIV. Section

1228B applies a modified version of this Part in relation to a sub-fund of a CCIV.

91 At the end of subsection 254B(1)

Add:

Note 5:

A CCIV may issue a share only if the share is referable to a sub-fund

of the CCIV (see section 1230).

92 Subsection 254G(1) (note)

Omit "Note", substitute "Note 1".

93 At the end of subsection 254G(1)

Add:

Note 2:

Section 1230C applies to a CCIV instead of this section.

94 Subsection 254H(1) (note)

Omit "Note", substitute "Note 1".

95 At the end of subsection 254H(1)

Add:

Note 2:

Section 1230C applies to a CCIV instead of this section.

96 Part 2H.2 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV: see section 1230D.

97 At the end of subsection 254N(1)

Add:

Note:

This section does not apply to a CCIV: see section 1230L.

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98 At the end of subsection 254T(1)

Add:

Note 3:

Section 1230M applies to a CCIV instead of this section.

99 At the end of subsection 254W(1)

Add:

Note:

Section 1230N is about dividend rights in a CCIV.

100 Part 2H.6 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV: see section 1230P.

101 Chapter 2J (after the heading)

Insert:

Note:

This Chapter is modified for CCIVs: see Division 2 of Part 8B.4.

102 Division 1 of Part 2J.1 (after the heading)

Insert:

Note:

This Division does not apply to a CCIV: see subsection 1231A(5).

103 Division 2 of Part 2J.1 (after the heading)

Insert:

Note:

This Division does not apply to a CCIV: see subsection 1231C(6).

104 Division 3 of Part 2J.1 (after the heading)

Insert:

Note:

This Division applies to a CCIV with modifications: see section 1231H.

105 Part 2J.2 (after the heading)

Insert:

Note:

This Part applies to a CCIV with modifications: see sections 1231J and 1231K.

106 Subsection 259B(1) (note)

Omit "Note", substitute "Note 1".

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107 At the end of subsection 259B(1)

Add:

Note 2:

Subsection (3) does not apply to a CCIV: see section 1231K.

108 Part 2J.3 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV: see section 1231L.

109 Part 2M.1 (after the heading)

Insert:

Note:

This Chapter applies to CCIVs with modifications: see Division 4 of Part 8B.4.

110 Subsection 286(1) (note)

Repeal the note, substitute:

Note 1:

Section 9 defines

financial records

Note 2:

Section 1232A extends this section to keeping financial records for

sub-funds of retail and wholesale CCIVs, and applies this Part

accordingly.

111 At the end of subsection 290(1)

Add:

Note:

Section 1232B extends this section to the directors of the corporate

director of a retail or wholesale CCIV.

112 Division 1 of Part 2M.3 (after the heading)

Insert:

Note:

This Division applies to retail CCIVs with modifications: see Subdivision C of

Division 4 of Part 8B.4.

113 Subsection 292(1) (note)

Repeal the note, substitute:

Note 1:

This Chapter only applies to disclosing entities incorporated or formed

in Australia (see subsection 285(2)).

Note 2:

Section 1232C extends this section to preparing annual financial

reports and directors' reports for sub-funds of retail CCIVs, and

applies this Division accordingly.

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114 At the end of subsection 295(5)

Add:

Note:

Section 1228 deals with directors' resolutions for CCIVs.

115 At the end of subsection 298(2)

Add:

Note:

Section 1228 deals with directors' resolutions for CCIVs.

116 At the end of subsection 300(1)

Add:

Note:

This section applies to sub-funds of retail CCIVs in a modified form:

see section 1232E.

117 At the end of subsection 300(13)

Add:

Note:

This subsection applies to sub-funds of retail CCIVs in a modified

form: see section 1232E.

118 At the end of section 302

Add:

Note 4:

Section 1232F extends this section to preparing half-year financial

reports and directors' reports for sub-funds of retail CCIVs (if there

are ED securities referable to the sub-fund), and applies this Division

accordingly.

119 At the end of subsection 303(5)

Add:

Note:

Section 1228 deals with directors' resolutions for CCIVs.

120 At the end of subsection 306(1)

Add:

Note:

This subsection applies to sub-funds of retail CCIVs in a modified

form: see subsection 1232F(6).

121 At the end of subsection 306(3)

Add:

Note:

Section 1228 deals with directors' resolutions for CCIVs.

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122 Division 3 of Part 2M.3 (after the heading)

Insert:

Note:

This Division applies to sub-funds of retail CCIVs in a modified form: see section

1232G.

123 At the end of section 307

Add:

Note:

This section applies to sub-funds of retail CCIVs in a modified form:

see section 1232G.

124 At the end of subsection 311(4)

Add:

Note:

This subsection applies to sub-funds of retail CCIVs in a modified

form: see section 1232G.

125 Division 4 of Part 2M.3 (after the heading)

Insert:

Note:

This Division applies to reports relating to sub-funds of retail CCIVs in a modified

form: see section 1232H.

126 At the end of subsection 314(1)

Add:

Note:

This section applies to sub-funds of retail CCIVs in a modified form:

see section 1232H.

127 At the end of subsection 315(3)

Add:

Note:

Section 1232J applies this subsection to retail CCIVs in relation to

their sub-funds.

128 At the end of subsection 317(1)

Add:

Note 4:

This section does not apply to retail CCIVs: see section 1232K.

129 At the end of subsection 318(1)

Add:

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Note:

This section applies to sub-funds of retail CCIVs in a modified form:

see section 1232L.

130 Subsection 322(3) (note)

Omit "Note", substitute "Note 1".

131 At the end of subsection 322(3)

Add:

Note 2:

This section applies to sub-funds of retail CCIVs in a modified form:

see section 1232M.

132 At the end of subsection 324CD(2) (after the table)

Add:

Note:

This subsection applies in relation to retail CCIVs in a modified form:

see section 1232N.

133 Subdivision B of Division 3 of Part 2M.4 (after the

heading)

Insert:

Note:

This Subdivision applies in relation to retail CCIVs in a modified form: see section

1232P.

134 At the end of subsection 324CL(1)

Add:

Note:

This section applies in relation to retail CCIVs in a modified form: see

section 1232Q.

135 Division 6 of Part 2M.4 (after the heading)

Insert:

Note:

This Division does not apply in relation to a CCIV. Instead, section 1232R applies a

modified version of Division 7 to a retail CCIV.

136 Division 7 of Part 2M.4 (after the heading)

Insert:

Note:

Section 1232R applies a modified version of this Division in relation to a retail CCIV.

137 Subsection 344(1) (note)

Omit "Note", substitute "Note 1".

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138 At the end of subsection 344(1)

Add:

Note 2:

This subsection has an extended operation in relation to a retail CCIV:

see section 1232T.

139 At the end of subsection 344(2)

Add:

Note:

This subsection has an extended operation in relation to a retail CCIV:

see section 1232T.

140 Part 2N.3 (after the heading)

Insert:

Note:

This Part does not apply to CCIVs: see subsection 1232U(1).

141 At the end of subsection 348C(1)

Add:

Note:

This section does not apply to CCIVs: see subsection 1232U(2).

142 Part 5.1 (after the heading)

Insert:

Note:

This Part applies to CCIVs with modifications: see Division 2 of Part 8B.6.

143 Part 5.2 (after the heading)

Insert:

Note:

This Part applies to CCIVs with modifications: see Division 3 of Part 8B.6.

144 Part 5.3A (after the heading)

Insert:

Note:

This Part does not apply to a CCIV or a sub-fund of a CCIV: see Division 4 of

Part 8B.6.

145 Part 5.3B (after the heading)

Insert:

Note:

This Part does not apply to a CCIV or a sub-fund of a CCIV: see Division 4 of

Part 8B.6.

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146 Part 5.4 (after the heading)

Insert:

Note:

This Part applies to a sub-fund of a CCIV in a modified form: see Division 5 of

Part 8B.6.

147 Part 5.4A (after the heading)

Insert:

Note:

This Part applies to a sub-fund of a CCIV in a modified form: see Division 5 of

Part 8B.6.

148 Part 5.4B (after the heading)

Insert:

Note:

This Part applies to a sub-fund of a CCIV in a modified form: see Division 5 of

Part 8B.6.

149 Part 5.4C (after the heading)

Insert:

Note:

This Part does not apply to a CCIV or a sub-fund of a CCIV: see Division 5 of

Part 8B.6.

150 Part 5.5 (after the heading)

Insert:

Note:

This Part applies to a sub-fund of a CCIV in a modified form: see Division 5 of

Part 8B.6.

151 Part 5.6 (after the heading)

Insert:

Note:

This Part applies to a sub-fund of a CCIV in a modified form: see Division 5 of

Part 8B.6.

152 At the end of subsection 530C(1)

Add:

Note:

This section applies to a CCIV in a modified form: see section 1237Z.

153 Part 5.7B (after the heading)

Insert:

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Note:

This Part applies to a sub-fund of a CCIV in a modified form: see Division 3 of

Part 8B.6 (for provisions relating to Division 2B), Division 5 of Part 8B.6 (for

provisions relating to Divisions 2 and 2A) and Division 6 of Part 8B.6 (for provisions

relating to Divisions 3, 4, 5 and 6).

154 Part 5.8 (after the heading)

Insert:

Note:

This Part applies to a sub-fund of a CCIV in a modified form: see Division 7 of

Part 8B.6.

155 At the end of subsection 596(1)

Add:

Note:

This section applies to a CCIV in a modified form: see section 1238F.

156 Part 5.9 (after the heading)

Insert:

Note:

This Part applies to a sub-fund of a CCIV in a modified form: see Division 8 of

Part 8B.6.

157 At the end of section 596A

Add:

Note:

This section applies to a CCIV in a modified form: see section 1237U.

158 Part 5A.1 (after the heading)

Insert:

Note 1: This Part applies to the deregistration of CCIVs with modifications: see Subdivision A

of Division 9 of Part 8B.6.

Note 2: For the deregistration of sub-funds of CCIVs, see Subdivision A of Division 9 of

Part 8B.6.

159 Part 5A.2 (after the heading)

Insert:

Note:

This Part does not apply to a CCIV or a sub-fund of a CCIV: see Subdivision B of

Division 9 of Part 8B.6.

160 Chapter 6 (after the heading)

Insert:

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Note:

This Chapter only applies to acquisitions of interests in a CCIV if the CCIV is a listed

company: see Division 1 of Part 8B.7.

161 Section 660A (note)

Omit "Note", substitute "Note 1".

162 At the end of section 660A

Add:

Note 2:

This Chapter only applies to the acquisition of securities in a CCIV if

the CCIV is a listed company: see section 1240E.

163 At the end of subsection 675(2)

Add:

Note 5:

Subsection (2) has a modified operation in relation to securities in a

CCIV: see section 1240F.

164 At the end of subsection 700(1)

Add:

Note:

In this Chapter, subject to subsection 1240H(6),

securities

also does

not include a security in a CCIV: see section 1240G.

165 Chapter 7 (after the heading)

Insert:

Note:

This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7.

166 Section 761A (paragraph (a) of the definition of financial

services law)

Omit "or 8A", substitute ", 8A or 8B".

167 After paragraph 766A(1)(d)

Insert:

(da) operate the business and conduct the affairs of a CCIV; or

168 Paragraph 766C(4)(c)

After "body corporate", insert "(other than a CCIV)".

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169 After paragraph 766C(4)(c)

Insert:

(ca) a CCIV;

170 Subsection 1212(1)

Repeal the subsection, substitute:

(1) A person may lodge an application with ASIC to have a scheme or

sub-fund in an item in column 1 of the following table (a

collective

investment fund

) registered as a passport fund if the person is the

entity mentioned in the corresponding item in column 2 of the table

(the

proposed operator

of the fund).

Who may apply to be a passport fund

Item

Column 1

Collective investment fund

Column 2

Proposed operator

a managed investment scheme that

is a registered scheme

the responsible entity of the scheme

a managed investment scheme in

respect of which an application for

registration under section 601EB has

been made

the proposed responsible entity of

the scheme

a sub-fund of a retail CCIV

the corporate director of the CCIV

171 Paragraph 1212(2)(b)

Omit "responsible entity for the scheme", substitute "proposed operator

of the collective investment fund".

172 Subparagraph 1212(2)(b)(i)

Omit "responsible entity", substitute "proposed operator".

173 Subparagraph 1212(2)(b)(ii)

Omit "scheme", substitute "fund".

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174 Subsection 1212(3)

Omit "scheme is registered as an Australian", substitute "fund is

registered as a".

175 Section 1212A (heading)

Repeal the heading, substitute:

1212A Registration of Australian passport funds

176 Subsection 1212A(1)

Omit "a registered scheme", substitute "a collective investment fund

that is a registered scheme or a sub-fund of a retail CCIV".

177 Paragraph 1212A(1)(a)

Omit "responsible entity for the scheme", substitute "proposed operator

of the fund".

178 Paragraph 1212A(1)(b)

Omit "scheme", substitute "fund".

179 Subsection 1212A(2)

Omit "A registered scheme", substitute "A collective investment fund".

180 Section 1212B

Omit "registered scheme", substitute "collective investment fund".

181 Section 1212B

Omit "scheme's", substitute "fund's".

182 Subsection 1213B(3)

After "managed investment schemes", insert ", or CCIVs,".

183 At the end of subsection 1272B(1)

Add:

Note:

This subsection has a modified operation in relation to CCIVs: see

section 1242.

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184 At the end of subsection 1274(2)

Add:

Note:

This subsection applies in relation to CCIVs with modifications: see

section 1242A.

185 At the end of subsection 1300(2A)

Add:

Note:

This section applies to a CCIV as if the CCIV were a proprietary

company: see section 1242B.

186 At the end of subsection 1307(1)

Add:

Note:

This subsection applies in relation to CCIVs with modifications: see

section 1242C.

187 At the end of subsections 1309(1) and (2)

Add:

Note:

This subsection applies in relation to CCIVs with modifications: see

section 1242D.

188 At the end of subsections 1309(9) and (10)

Add:

Note:

This subsection applies in relation to information given to CCIVs with

modifications: see section 1242D.

189 Before paragraph 1311(1A)(e)

Insert:

(de) Chapter 8B;

190 At the end of subsection 1317(1)

Add:

Note:

This section applies in relation to a defendant who is a CCIV with

modifications: see section 1242D.

191 Part 9.4AAA (after the heading)

Insert:

Note:

This Part applies in relation to CCIVs with modifications: see 1242E.

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192 In the appropriate position in subsection 1317E(3)

Insert:

subsection 1224D(1)

duties owed by director of a CCIV

corporation/scheme

subsection 1224D(2)

duties owed by director of a retail

CCIV

corporation/scheme

subsection 1224D(4)

duties owed by director of a

wholesale CCIV

corporation/scheme

subsection 1224P(2)

acquisition of share in CCIV by

corporate director of retail CCIV

corporation/scheme

subsection 1225(1)

duties owed by officers of corporate

director of retail CCIV

corporation/scheme

subsection 1225F(1)

duties owed by employees of

corporate director of retail CCIV

corporation/scheme

subsection 1230F(5)

share redemption requirements for

CCIVs

corporation/scheme

subsection 1230S(4)

cross-investment restrictions or

requirements for CCIVs

corporation/scheme

subsection 1231B(4)

unauthorised reduction of share

capital by a CCIV

corporation/scheme

subsection 1231J(5)

directly acquiring own shares

corporation/scheme

subsections 1234J(1), (2)

and (3)

holding of sub-fund assets of a

CCIV

corporation/scheme

193 At the end of subsection 1322(1)

Add:

Note:

This section applies in relation to CCIVs with modifications: see

section 1242F.

194 Sections 1324A and 1324B

Omit "or Part 7.10", substitute ", Part 7.10 or Chapter 8B".

195 Subsection 1325(7) (at the end of the definition of

section 1325 order provision)

Add:

; and (j) a provision of Chapter 8B.

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196 At the end of section 1351

Add:

Note:

Subsection (4) applies in relation to CCIVs with modifications: see

section 1242G.

197 At the end of subsection 70-35(3) of Schedule 2

Add:

Note:

This subsection does not apply for a winding up of a sub-fund of a

CCIV: see section 1237P.

198 At the end of subsection 70-35(4) of Schedule 2

Add:

Note:

This subsection does not apply for a winding up of a sub-fund of a

CCIV: see section 1237P.

199 In the appropriate position in Schedule 3

Insert:

Subsection 1222L(3)

20 penalty units

Subsection 1222L(7)

20 penalty units

Subsection 1222W(1)

30 penalty units

Subsection 1222Z(2)

120 penalty units

Subsection 1223B(3)

20 penalty units

Subsection 1223C(4)

20 penalty units

Subsection 1223C(5)

20 penalty units

Subsection 1223D(3)

20 penalty units

Subsection 1224(1)

2 years imprisonment

Subsection 1224(5)

2 years imprisonment

Subsection 1224A(1)

2 years imprisonment

Subsection 1224A(2)

2 years imprisonment

Subsection 1224G(4)

2 years imprisonment

Subsection 1224G(5)

20 penalty units

Subsection 1224G(6)

60 penalty units

Subsection 1224P(3)

(a) for an individual--5 years imprisonment,

2,000 penalty units, or both; and

(b) for a body corporate--20,000 penalty units

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Subsection 1224Q(4)

30 penalty units

Subsection 1224Q(5)

20 penalty units

Subsection 1224T(3)

20 penalty units

Subsection 1224U(4)

20 penalty units

Subsection 1224V(3)

20 penalty units

Subsection 1224W(2)

20 penalty units

Subsection 1224W(8)

20 penalty units

Subsection 1224Z(1)

20 penalty units

Subsection 1225(2)

5 years imprisonment

Subsection 1225F(2)

5 years imprisonment

Subsection 1226(3)

20 penalty units

Subsection 1226C(2)

60 penalty units

Subsection 1226D(3)

20 penalty units

Subsection 1226D(4)

20 penalty units

Subsection 1226E(3)

20 penalty units

Subsection 1226F(1)

20 penalty units

Subsection 1226G(1)

20 penalty units

Subsection 1226G(3)

60 penalty units

Subsection 1226G(4)

20 penalty units

Subsection 1226H(6)

1 year imprisonment

Paragraph 1226J(1)(a)

20 penalty units

Subsection 1226K(1)

20 penalty units

Subsection 1228D(4)

20 penalty units

Subsection 1230F(4)

(a) for an individual--5 years imprisonment,

2,000 penalty units, or both; and

(b) for a body corporate--20,000 penalty units

Subsection 1230G(1)

20 penalty units

Subsection 1230G(2)

20 penalty units

Subsection 1230G(3)

20 penalty units

Subsection 1230J(5)

20 penalty units

Subsection 1230J(8)

20 penalty units

Subsection 1230M(1)

2 years imprisonment

Subsection 1230S(3)

(a) for an individual--5 years imprisonment,

2,000 penalty units, or both; and

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(b) for a body corporate--20,000 penalty units

Subsection 1231B(3)

(a) for an individual--5 years imprisonment,

2,000 penalty units, or both; and

(b) for a body corporate--20,000 penalty units

Subsection 1231J(6)

(a) for an individual--5 years imprisonment,

2,000 penalty units, or both; and

(b) for a body corporate--20,000 penalty units

Subsection 1233B(4)

2 years imprisonment

Subsection 1233B(5)

60 penalty units

Subsection 1233C(2)

60 penalty units

Subsection 1233D(5)

2 years imprisonment

Subsection 1233D(6)

60 penalty units

Subsection 1233E(5)

2 years imprisonment

Subsection 1233E(6)

60 penalty units

Subsection 1233F(4)

20 penalty units

Subsection 1233G(3)

2 years imprisonment

Subsection 1233G(4)

60 penalty units

Subsection 1233J(6)

2 years imprisonment

Subsection 1233K(5)

2 years imprisonment

Subsection 1233M(6)

2 years imprisonment

Subsection 1233N(5)

2 years imprisonment

Subsection 1233P(3)

20 penalty units

Subsection 1234F(3)

2 years imprisonment

Subsection 1234F(4)

60 penalty units

Subsections 1234J(1), (2) and (3)

60 penalty units

Subsection 1237P(4)

50 penalty units

Subsection 1239D(3)

20 penalty units

Subsection 1239L(1)

20 penalty units

Subsection 1240H(1)

5 years imprisonment

Subsection 1240H(2)

5 years imprisonment

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Schedule 3--Corporate collective investment

vehicles: amendments of other Acts

Australian Securities and Investments Commission Act 2001

1 Subsection 5(1) (paragraph (a) of the definition of eligible

person)

After "body corporate", insert "(other than a CCIV)".

2 Subsection 5(1) (after paragraph (a) of the definition of

eligible person)

Insert:

(aa) if the first-mentioned person is a CCIV--is or has been:

(i) an officer of the CCIV; or

(ii) an officer of an officer of the CCIV; or

3 Subsection 5(1) (at the end of the definition of eligible

person)

Add:

Note:

For paragraph (aa),

officer

is defined in this subsection.

4 Subsection 5(1) (at the end of the definition of financial

service)

Add:

Note:

Some provisions of Chapter 7 of that Act have a modified meaning

when applying to CCIVs (see Part 8B.7 of that Act).

5 After paragraph 12BAB(1)(g)

Insert:

(ga) operate the business and conduct the affairs of a CCIV, and

the person is the corporate director of the CCIV; or

6 At the end of subsection 12BAB(1)

Add:

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Note:

Paragraph (ga) means persons other than the corporate director will

not be treated as providing that financial service if they operate the

business and conduct the affairs of the CCIV while:

(a) acting as an agent of the CCIV, or as an agent or employee of the

corporate director; or

(b) taking steps to wind up a sub-fund of the CCIV.

7 After paragraph 12BAB(14)(d)

Insert:

(da) operating as a CCIV;

(db) operating the business and conducting the affairs of a CCIV;

(dc) holding the money or property of a CCIV;

8 At the end of subsection 12BAB(14)

Add:

Note:

Holding the assets of a sub-fund of a CCIV (within the meaning of

section 1233H of Corporations Act) is covered by paragraph (dc) and

does not constitute providing a

custodial or depository service

9 Paragraph 12GI(2)(b)

After "body corporate", insert "(other than a CCIV)".

10 After paragraph 12GI(2)(b)

Insert:

or (c) in the case of a defendant being a CCIV:

(i) an agent, or the corporate director, of the defendant; or

(ii) a director, employee or agent of the corporate director

of the defendant;

11 Subsection 59(6)

Repeal the subsection, substitute:

(6) A body corporate may be represented at a hearing by:

(a) unless paragraph (b) applies--an officer or employee of the

body corporate approved by ASIC; or

(b) if the body corporate is a CCIV--any of the following

persons approved by ASIC:

(i) an officer of the CCIV (other than the corporate director

of the CCIV);

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(ii) an officer or employee of the corporate director of the

CCIV.

12 Section 84

Repeal the section, substitute:

84 Requirement made of a body corporate

If 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:

(a) unless paragraph (b) applies--an officer or employee of the

body corporate; or

(b) if the body corporate is a CCIV:

(i) an officer of the CCIV; or

(ii) an officer or employee of the corporate director of the

CCIV.

13 At the end of Part 3A

Add:

93BA Undertakings by corporate director of a CCIV

(1) ASIC may accept a written undertaking given by the corporate

director of a CCIV in connection with a matter:

(a) concerning the CCIV; and

(b) in relation to which ASIC has a power or function under the

corporations legislation (other than the excluded provisions).

(2) The corporate director may withdraw or vary the undertaking at

any time, but only with ASIC's consent.

(3) If ASIC considers that the corporate director 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 corporate director has breached a

term of the undertaking, the Court may make all or any of the

following orders:

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(a) an order directing the corporate director to comply with that

term of the undertaking;

(b) an order directing the corporate director to transfer to the

CCIV an amount up to the amount of any financial benefit

that the corporate director has obtained directly or indirectly

and that is reasonably attributable to the breach;

corporate director 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 corporate director 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.

14 After section 243E

Insert:

243F Treat the corporate director of a CCIV as providing financial

services etc. being provided by the CCIV

(1) This section applies to a provision of this Act that applies in

relation to:

(a) a service, or matter, that is a financial service for the

purposes of that provision; or

(b) a financial services business; or

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of this paragraph.

General rule

(2) For the purposes of that provision of this Act:

(a) treat any conduct engaged in by, or on behalf of, a CCIV as

also being engaged in by, or on behalf of, the corporate

director of the CCIV; and

(b) treat any conduct relating to the CCIV that is engaged in by a

person (other than the corporate director of the CCIV) as also

being engaged in by that person in relation to the corporate

director of the CCIV.

(3) In subsection (2),

conduct

means an act, an omission to perform an

act or a state of affairs.

Exceptions

(4) If the CCIV issues a security in the CCIV, then subsection (2) does

not treat the corporate director of the CCIV as also being the issuer

of the security.

(5) If the CCIV is a participant (within the meaning of Chapter 7 of the

Corporations Act) in:

(a) a clearing and settlement facility; or

(b) a financial market;

subsection (2) does not treat the corporate director of the CCIV as

also being a participant (within the meaning of Chapter 7 of the

Corporations Act) in relation to the facility or market.

(6) Subsection (2) does not apply in any circumstances prescribed by

the regulations for the purposes of this subsection.

Personal Property Securities Act 2009

15 At the end of section 267

Add:

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Effect of winding up of a sub-fund of a CCIV

(4) Paragraph (1)(a) applies in relation to a grantor if:

(a) the grantor is a CCIV (within the meaning of the

Corporations Act 2001

); and

(b) the security interest is in personal property that is an asset of

a sub-fund of the CCIV (within the meaning of that Act); and

of the sub-fund.

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Schedule 4--Corporate collective investment

vehicles: contingent amendments

Note:

The amendments in this Schedule only commence if Schedule 2 to the

Corporations

Amendment (Meetings and Documents) Act 2021

has already commenced (see

subsection 2(1) of this Act).

Corporations Act 2001

1 Paragraph 110(2)(a)

Repeal the paragraph, substitute:

(a) a meeting of the members of a company, registered scheme

or sub-fund of a CCIV (including a meeting of a class of

members); or

2 After paragraph 110(2)(b)

Insert:

(ba) a resolution to be considered by the members of a sub-fund

of a CCIV without a meeting; or

3 After paragraph 110C(1)(b)

Insert:

(ba) the corporate director of a CCIV;

4 Paragraph 110C(2)(a)

Repeal the paragraph, substitute:

(a) if the sender is a company, responsible entity of a registered

scheme, or corporate director of a CCIV:

(i) relates to a meeting of the members of the company,

registered scheme or sub-fund of the CCIV (including a

meeting of a class of members); or

(ii) for a company--relates to a resolution to be considered

by the members of the company (including a resolution

to be considered by a class of members of the company)

without a meeting; or

(iii) for the corporate director of a CCIV--relates to a

resolution to be considered by the members of a

sub-fund of the CCIV without a meeting; or

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5 After paragraph 110E(1)(b)

Insert:

(ba) where the sender is the corporate director of a CCIV--the

recipient is a member of the CCIV; or

6 After paragraph 110J(3)(b)

Insert:

(ba) where the sender is the corporate director of a CCIV--the

recipient is a member of the CCIV; or

7 After subsection 110K(2)

Insert:

(2A) A CCIV must:

(a) send the members of the CCIV, at least once in each financial

year, a notice setting out the matters mentioned in

subsection (4); or

(b) make such a notice readily available on a website.

8 Subsections 110K(4) and (5)

After "(2)", insert ", (2A)".

9 Subsection 1232H(1)

Omit "subsection 314(1AA) or (1AE)", substitute

"subsection 314(1AE)".

10 In the appropriate position in Schedule 3

Insert:

Subsection 110K(2A)

30 penalty units

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Schedule 5--Corporate collective investment

vehicles: tax framework

Part 1--Main amendments

Income Tax Assessment Act 1997

1 At the end of Division 195

Add:

Subdivision 195-C--Corporate collective investment vehicles

Guide to Subdivision 195-C

195-100 What this Subdivision is about

The business, assets and liabilities of each sub-fund of a CCIV are

taken to constitute the trust estate of a separate trust (a CCIV

sub-fund trust), of which the CCIV is the trustee and the members

of the sub-fund are the beneficiaries.

This Subdivision sets out further rules to facilitate the CCIV, and

the sub-fund and its members, being taxed on this basis, including:

•

modifications of the rules for determining whether the CCIV

sub-fund trust is a managed investment trust (under

Division 275) and an attribution managed investment trust

(under Division 276); and

Note:

These modifications also affect whether the trust is a withholding

MIT under Subdivision 12-H in Schedule 1 to the

Taxation

Administration Act 1953

•

rules to support the application of Division 6 or 6C of Part III

of the

Income Tax Assessment Act 1936

, to the extent that

Division applies to the trust; and

•

rules to support the application to the trust of relevant rules

about trust losses and capital gains.

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Table of sections

Operative provisions

195-105 Effect of this Subdivision

195-110 Each sub-fund of a CCIV is taken to be a separate trust

195-115 A CCIV sub-fund trust is a unit trust

195-120 Beneficiary of a CCIV sub-fund trust has fixed entitlements to shares of

income and capital of the trust

195-123 How to work out the income of the trust estate of a CCIV sub-fund trust for

an income year

195-125 When a beneficiary of a CCIV sub-fund trust is presently entitled to trust

income

195-127 When a beneficiary of a CCIV sub-fund trust has an individual interest in

exempt income and non-assessable non-exempt income of the trust estate

195-130 Application of Division 275 (managed investment trusts) to a CCIV

sub-fund trust

195-135 Application of Division 276 (AMITs) to a CCIV sub-fund trust

195-140 Entry on Australian Business Register

Operative provisions

195-105 Effect of this Subdivision

(1) This Subdivision has effect for the purposes of all

taxation laws,

to the exclusion of those laws as they would otherwise apply in

relation to

CCIVs and their members (in their capacity as such).

Note:

Subsection (3) excludes some taxation laws from this subsection.

(2) Without limiting the generality of subsection (1), the purposes

referred to in that subsection include how

taxation laws apply in

relation to other entities, in so far as that application is affected by

the application of those laws in relation to

CCIVs and their

members (in their capacity as such).

Note:

For example, in applying subsection 318(1) of the

Income Tax

Assessment Act 1936

to determine whether a CCIV is an associate of a

natural person for the purposes of a provision affecting the income tax

payable by that person:

(a) paragraph 318(1)(d) of that Act (providing for when a trustee of

a trust is an associate of the natural person) would apply; and

(b) paragraph 318(1)(e) of that Act (providing for when a company

is an associate of the natural person) would not apply.

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(3) Subsections (1) and (2) do not apply to the following

taxation

laws:

(a) the

Foreign Acquisitions and Takeovers Act 1975

;

(b) legislative instruments made under that Act.

195-110 Each sub-fund of a CCIV is taken to be a separate trust

(1) For each

sub-fund of a

CCIV, the business,

assets and

liabilities

of the sub-fund are taken to constitute the trust estate of a separate

trust, of which the CCIV is the trustee and the

members of the

sub-fund are the beneficiaries.

(2) A trust that is taken to exist because of the application of

subsection (1) to a

sub-fund of a

CCIV is a

CCIV sub-fund trust

Note:

The combined effect of this section and subsections 960-100(2) and

(3) is that a CCIV is a different entity in its capacity as trustee of each

of its CCIV sub-fund trusts.

Because of subsection 195-105(1), the tax treatment of the CCIV in

those capacities excludes the tax treatment that would otherwise apply

to the CCIV as a company. Also, the tax treatment of members of the

CCIV is based on them being treated as beneficiaries of their

respective CCIV sub-fund trusts, to the exclusion of the tax treatment

that would otherwise apply to them as members of a company.

Example 1: CCIV A has only one sub-fund (sub-fund A). CCIV B has only one

sub-fund (sub-fund B).

CCIV A holds shares in CCIV B. The shares are referable to sub-fund

B. They are assets of sub-fund A.

In its capacity as trustee of the CCIV sub-fund trust for sub-fund A,

CCIV A is a beneficiary of the CCIV sub-fund trust for sub-fund B.

Example 2: A CCIV has 2 sub-funds: sub-fund A and sub-fund B.

As permitted by section 1230Q of the

Corporations Act 2001

, the

CCIV acquires, in respect of sub-fund A, shares that are referable to

sub-fund B. The shares are assets of sub-fund A.

In its capacity as trustee of the CCIV sub-fund trust for sub-fund A,

the CCIV is a beneficiary of the CCIV sub-fund trust for sub-fund B.

195-115 A CCIV sub-fund trust is a unit trust

(1) A

CCIV sub-fund trust is taken to be a unit trust.

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Note:

One consequence of this subsection is that a CCIV sub-fund trust can

be a public unit trust if it meets the other tests in section 102P of the

Income Tax Assessment Act 1936

(2) The

shares that are

referable to the

sub-fund are taken to be the

units in the trust.

(3) The rights, obligations and other characteristics attaching to a unit

in the trust are taken to be the same, as nearly as practicable, as the

rights, obligations and other characteristics attaching to the share

that is taken to be that unit.

Note:

One consequence of this section is that if shares that are referable to

the sub-fund are listed for quotation in the official list of a stock

exchange, the units in the sub-fund trust that those shares are taken to

be will likewise be taken to be listed in that official list.

Examples of provisions to which this is relevant are:

(a) paragraph 275-20(2)(a) (widely-held requirement for managed

investment trusts) of this Act; and

(b) paragraph 102P(1)(a) of the

Income Tax Assessment Act 1936

(public unit trusts).

195-120 Beneficiary of a CCIV sub-fund trust has fixed entitlements

to shares of income and capital of the trust

(1) A

beneficiary of a

CCIV sub-fund trust is taken to have a

fixed

entitlement

to a share of income of the trust that the trust derives

from time to time. At a particular time, that share is equal to the

percentage worked out using the formula:

Beneficiary dividends

100

Total dividends



where:

beneficiary dividends

is the total of the

dividends that the

beneficiary has a right to receive because of

shares that the

beneficiary holds at that time and are

referable to the

sub-fund.

total dividends

is the total of all

dividends that are payable on all

shares that are on issue at that time and are

referable to the

sub-fund.

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(2) A

beneficiary of a

CCIV sub-fund trust is taken to have a

fixed

entitlement

to a share of the capital of the trust at a particular time

equal to the percentage worked out using the formula:

Beneficiary capital distribution

100

Total capital distribution



where:

beneficiary capital distribution

is the amount of a distribution of

paid-up capital (in the event of a return of capital) that the

beneficiary has a right to receive because of

shares that the

beneficiary holds at that time and are

referable to the

sub-fund.

total capital distribution

is the total distribution of paid-up capital

(in that event) payable on all

shares that are on issue at that time

and are

referable to the

sub-fund.

(3) A fixed entitlement that exists because of this section is taken to be

a fixed entitlement within the meaning given by sections 272-5,

272-10, 272-15 and 272-40 in Schedule 2F to the

Income Tax

Assessment Act 1936

Note:

This is relevant to, for example, the definition of

fixed entitlement

subsection 102UC(4) of the

Income Tax Assessment Act 1936

195-123 How to work out the income of the trust estate of a CCIV

sub-fund trust for an income year

(1) The income (the

trust income

) of the trust estate of a

CCIV

sub-fund trust for an income year is worked out in accordance with

this section.

Note:

This is relevant to working out the income tax position of the CCIV

sub-fund trust and its beneficiaries under Division 6 of Part III of the

Income Tax Assessment Act 1936

(2) If:

(a) the

CCIV is a

retail CCIV at the end of the income year;

and

(b) the amount of the

sub-fund's profit for the income year, as

required to be stated in the financial statements included in

the financial report for the sub-fund for the income year that

the CCIV is required to prepare because of

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paragraph 1232C(1)(a) of the

Corporations Act 2001

, is

greater than nil;

the trust income is that profit.

(3) If:

(a) the

CCIV is not a

retail CCIV at the end of the income

year; and

(b) the amount of the

sub-fund's profit for the income year that

would, if the CCIV had been a retail CCIV at the end of the

income year, be required to be stated as mentioned in

paragraph (2)(b) is greater than nil;

the trust income is that profit.

(4) If neither of subsections (2) and (3) applies, the trust income is nil.

195-125 When a beneficiary of a CCIV sub-fund trust is presently

entitled to trust income

(1) A

beneficiary of a

CCIV sub-fund trust is taken to be presently

entitled to a share of the income of the trust estate for an income

year if any of the

sub-fund's profit for the income year was or is

payable to the beneficiary by way of one or more

dividends

declared during, or within 3 months after, the income year.

(2) That share consists of so much of that profit as was or is payable to

the beneficiary by way of one or more such

dividends.

Note:

To the extent that any of that profit is not payable to a beneficiary by

way of such dividends, it will be income to which no beneficiary is

presently entitled. This can have consequences under section 99 or

99A of the

Income Tax Assessment Act 1936

(3) Within 3 months after the end of the income year, the

CCIV must

notify the

beneficiary, in the

approved form, of the following

matters:

(a) whether the beneficiary is presently entitled to a share of the

income of the trust estate for the income year and, if so, the

amount of that share;

(b) for each

dividend that was declared during, or within 3

months after, the income year on

shares referable to the

sub-fund, and was or is payable to the beneficiary:

(i) the amount of the dividend; and

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(ii) how much of the dividend consists of any of the

sub-fund's profit for the income year.

Note:

Failure to comply with this section may constitute an offence against

subsection 8C(1) of the

Taxation Administration Act 1953

(4) For the purposes of this section, an amount is taken to be payable

to the

beneficiary if it is required to be applied or dealt with in any

way on the beneficiary's behalf or as the beneficiary directs.

(5) Except as provided in this section, a

beneficiary of a

CCIV

sub-fund trust is not taken to be presently entitled to a share of

income of the trust estate.

195-127 When a beneficiary of a CCIV sub-fund trust has an

individual interest in exempt income and non-assessable

non-exempt income of the trust estate

(1) A

beneficiary of a

CCIV sub-fund trust:

(a) is taken to have an individual interest in the exempt income

of the trust estate from time to time; and

(b) is taken to have an individual interest in the

non-assessable

non-exempt income of the trust estate from time to time.

(2) The individual interest referred to in paragraph (1)(a) or (b) is the

same as the share (of income that the trust derives from time to

time) to which the beneficiary has a

fixed entitlement under

subsection 195-120(1).

(3) Except as provided in this section, a

beneficiary of a

CCIV

sub-fund trust is not taken to have an individual interest in the

exempt income, or

non-assessable non-exempt income, of the

trust estate.

195-130 Application of Division 275 (managed investment trusts) to

a CCIV sub-fund trust

(1)

This section sets out how to apply Division 275 to a trust that is a

CCIV sub-fund trust.

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Determining whether the trust is a managed investment trust

(2) Section 275-10 has effect in relation to the trust as if the following

paragraph were substituted for paragraph 275-10(3)(c):

sub-fund is being used

for collective investment by pooling the contributions of the

members of the sub-fund as consideration to acquire rights

to benefits produced from those contributions; and

(3) In applying section 275-10 to the trust, disregard the following

provisions:

(a) paragraph 275-10(3)(d);

(b) paragraph 275-10(3)(g).

(4) Section 275-10 has effect in relation to the trust as if the following

paragraph were substituted for paragraph 275-10(3)(e):

(e) the trust satisfies, in relation to the income year:

(i) if, at the time the payment is made, the trust is covered

by section 275-15--either or both of the widely-held

requirements in subsection 275-20(1) and 275-25(1); or

(ii) if, at the time the payment is made, the trust is

not

covered by section 275-15--either or both of the

widely-held requirements in subsections 275-20(2) and

275-25(1); and

Determining whether the trust is a trust with wholesale

membership

(5) In applying section 275-15 to the trust, disregard

paragraph 275-15(a).

Determining whether the trust satisfies the widely-held

requirements

(6) In applying section 275-45 to the trust, disregard

paragraph 275-45(1)(d).

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195-135 Application of Division 276 (AMITs) to a CCIV sub-fund

trust

(1)

This section sets out how to apply Division 276 to a trust that is a

CCIV sub-fund trust.

Determining whether the trust is an attribution managed

investment trust (AMIT)

(2) In applying section 276-10 to the trust, disregard the following

provisions:

(a) paragraph 276-10(1)(b);

(b) paragraph 276-10(1)(e).

Note:

The effect of disregarding paragraph 276-10(1)(e) is that the trustee of

CCIV sub-fund trust does not have a choice as to whether the trust

is an AMIT.

Trustee cannot choose to treat classes of membership interests as

separate AMITs

(3) In applying Division 276 to the trust, disregard section 276-20.

195-140 Entry on Australian Business Register

(1) If a

CCIV sub-fund trust has an

ABN, the

Australian Business

Registrar must enter in the

Australian Business Register in

relation to the trust a statement that:

(a) indicates that the trust is taken to exist for tax purposes

because of the application of section 195-110 to a

sub-fund

of a

CCIV; and

(b) sets out the sub-fund's ARFN (within the meaning of the

Corporations Act 2001

Note:

ARFN is short for Australian Registered Fund Number.

(2) The

Australian Business Registrar must take reasonable steps to

ensure that information entered in the

Australian Business

Registrar may correct or update the information.

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2 Subsection 703-20(2) (after table item 3)

Insert:

A company

The company is a

CCIV at any time during the

income year

3 Subsection 703-20(2) (at the end of the table)

Add:

A trust

The trust is a

CCIV sub-fund trust

4 At the end of section 703-20

Add:

(3) Item 8 of the table in subsection (2) of this section has effect

despite section 713-130 (which enables a public trading trust to

form a consolidated group).

International Tax Agreements Act 1953

5 Subsection 4(2)

Omit "Part IVA of the

Income Tax Assessment Act 1936

", substitute

"the provisions covered by subsection (3)".

6 At the end of section 4

Add:

(3) This subsection covers the following provisions:

(a) Part IVA of the

Income Tax Assessment Act 1936

;

(b) Subdivision 195-C (Corporate collective investment

vehicles) of the

Income Tax Assessment Act 1997

Corporate collective investment vehicles: tax framework

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Consequential amendments

Part 2

No. , 2021

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Measures Bill 2021

247

Part 2--Consequential amendments

A New Tax System (Australian Business Number) Act 1999

7 Paragraph 26(3)(g)

After "section 30-229", insert "or 195-140".

Income Tax Assessment Act 1997

8 Section 9-1 (after table item 3)

Insert:

A company that is a corporate collective

investment vehicle (CCIV)

Subdivision 195-C

The trustee of an attribution managed

investment trust (AMIT)

sections 276-405 to

276-425

9 Section 9-5 (after table item 1)

Insert:

The trustee of an attribution managed

investment trust (AMIT) is liable to pay

income tax on certain amounts reflecting

under-attribution of income or

over-attribution of tax offsets

sections 276-405 to

276-425

10 Subsection 995-1(1)

Insert:

asset

, of a

sub-fund of a

CCIV, means any of the assets of the

sub-fund, ascertained in accordance with Subdivision B of

Division 3 of Part 8B.5 of the

Corporations Act 2001

beneficiary

, of a

CCIV sub-fund trust, means a

member of the

sub-fund who is taken because of subsection 195-110(1) to be a

beneficiary of the trust.

CCIV

: see

corporate collective investment vehicle

Schedule 5

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Part 2

Consequential amendments

248

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

No. , 2021

CCIV sub-fund trust

has the meaning given by

subsection 195-110(2).

corporate collective investment vehicle

CCIV

has the same

meaning as in the

Corporations Act 2001

11 Subsection 995-1(1) (definition of fixed entitlement)

Repeal the definition, substitute:

fixed entitlement

(a) an entity has a

fixed entitlement

to a share of the income or

capital of a company, partnership or trust if the entity has a

fixed entitlement to that share within the meaning of

Division 272 in Schedule 2F to the

Income Tax Assessment

Act 1936

; and

(b) despite paragraph (a) of this definition, a

beneficiary of a

CCIV sub-fund trust is taken to have a

fixed entitlement

to a

share of the income or capital of the trust as provided by

section 195-120 of this Act.

Note:

Section 165-245 of this Act affects when an entity is taken to have

held or had, directly or indirectly, a fixed entitlement to a share of

income or capital of a company.

12 Subsection 995-1(1)

Insert:

liability

, of a

sub-fund of a

CCIV, means any of the liabilities of

the sub-fund, ascertained in accordance with Subdivision C of

Division 3 of Part 8B.5 of the

Corporations Act 2001

13 Subsection 995-1(1) (at the end of the definition of

member)

Add:

; and (f) in relation to a

sub-fund of a

CCIV--means a person who

is, under subsection 1222Q(3) of the

Corporations Act 2001

a member of the sub-fund.

14 Subsection 995-1(1)

Insert:

Corporate collective investment vehicles: tax framework

Schedule 5

Consequential amendments

Part 2

No. , 2021

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

249

referable

: a

share in a

CCIV is

referable

to a

sub-fund of the

CCIV if it is so referable under subsection 1230(1) of the

Corporations Act 2001

retail CCIV

has the meaning given by subsection 1222J(1) of the

Corporations Act 2001

sub-fund

, of a

CCIV, has the meaning given by

subsection 1222Q(1) of the

Corporations Act 2001

Schedule 5

Corporate collective investment vehicles: tax framework

Part 3

Amendments consequential on enactment of the Commonwealth Registers Act

2020

250

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Measures Bill 2021

No. , 2021

Part 3--Amendments consequential on enactment of

the Commonwealth Registers Act 2020

Income Tax Assessment Act 1997

15 Subsection 195-140(1)

Omit "the

Australian Business Registrar must enter in the

Australian

Business Register in relation to the trust", substitute "the

Registrar

must make a record of".

16 Paragraph 195-140(1)(b)

Repeal the paragraph, substitute:

(b) sets out:

(i) the sub-fund's ARFN (within the meaning of the

Corporations Act 2001

); and

(ii) the name of the

corporate director of the CCIV; and

(iii) the number of the corporate director's Australian

financial services licence (within the meaning of that

Act).

17 Subsection 195-140(2)

Repeal the subsection, substitute:

(2) The

Registrar must take reasonable steps to ensure that a

statement recorded under subsection (1) is accurate. For this

purpose, the Registrar may correct or update the record of the

statement.

18 Subsection 995-1(1)

Insert:

corporate director

of a

CCIV has the same meaning as in the

Corporations Act 2001

Schedule 6

Extension of temporary loss carry back

Part 1

Main amendments

252

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Measures Bill 2021

No. , 2021

Schedule 6--Extension of temporary loss

carry back

Part 1--Main amendments

Income Tax Assessment Act 1997

1 Subsection 36-17(1) (note 2)

Omit "2020-21 or 2021-22 income year", substitute "2020-21, 2021-22

or 2022-23 income year".

2 Subsection 36-17(1) (note 2)

Omit "or 2020-21", substitute ", 2020-21 or 2021-2022".

3 Section 36-25 (table dealing with tax losses of corporate tax

entities)

Omit "

or 2021-22

", substitute "

, 2021-22 or 2022-23

4 Division 160 (heading)

Omit "

or 2021-22

", substitute "

, 2021-22 or 2022-23

5 Section 160-1

Omit "2019-20, 2020-21 or 2021-22 against the income tax liability it

had for 2018-19, 2019-20 or 2020-21", substitute "2019-20, 2020-21,

2021-22 or 2022-23 against the income tax liability it had for 2018-19,

2019-20, 2020-21 or 2021-22".

6 Section 160-1

Omit "refundable tax offset for 2020-21 or 2021-22", substitute

"refundable tax offset for 2020-21, 2021-22 or 2022-23".

7 At the end of paragraph 160-5(a)

Add:

or (iii) the 2022-23 income year;

Extension of temporary loss carry back

Schedule 6

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No. , 2021

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8 At the end of paragraph 160-5(c)

Add:

(iv) if the current year is the 2022-23 income year--the

2022-23 income year or the 2021-22 income year;

9 At the end of paragraph 160-5(d)

Add:

(iv) if the current year is the 2022-23 income year and the

2022-23 income year was a loss year--the 2021-22

income year or the 2020-21 income year;

(v) if the current year is the 2022-23 income year and the

2021-22 income year was a loss year--the 2020-21

income year;

10 Section 160-5 (after note 2)

Insert:

Note 2A: The entity can be entitled to only one loss carry back tax offset for

2022-23. However, that offset has 4 components: one relating to

2018-19, one relating to 2019-20, one relating to 2020-21 and one

relating to 2021-22: see section 160-10.

11 At the end of paragraph 160-10(1)(a)

Add:

and (iv) if the current year is the 2022-23 income year--the

2021-22 income year and the 2020-21 income year;

12 Subparagraph 160-10(2)(b)(ii)

Omit "or 3", substitute ", 3 or 4".

13 Subsection 160-10(3) (at the end of the heading)

Add "

--entitlement to loss carry back tax offset for 2021-22 income

year

14 After subsection 160-10(4)

Insert:

Schedule 6

Extension of temporary loss carry back

Part 1

Main amendments

254

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

No. , 2021

Income tax liability for the 2018-19, 2019-20 or 2020-21 income

year already utilised

entitlement to loss carry back tax offset for

2022-23 income year

(4A) Subsection (4B) applies in relation to applying paragraph (2)(b) to

work out the entity's

loss carry back tax offset component for the

2018-19, 2019-20 or 2020-21 income year (the

gain year

) as part

of working out the entity's entitlement to a

loss carry back tax

offset for the 2022-23 income year.

(4B) Disregard so much of the entity's

income tax liability for the gain

year as has previously been included (as part of working out the

entity's entitlement to a

loss carry back tax offset for the 2020-21

or 2021-22 income year) in a

loss carry back tax offset

component.

15 At the end of subsection 160-10(5)

Add:

; and (d) if the current year is the 2022-23 income year:

(i) where the entity carries back an amount to the 2021-22

income year--more than half of the 2021-22 income

year; and

(ii) where the entity carries back an amount to the 2020-21

income year--more than half of the 2020-21 income

year.

16 Subsection 160-15(1)

Omit "2020-21 or 2021-22 income year", substitute "2020-21, 2021-22

or 2022-23 income year".

17 After paragraph 160-15(1)(a)

Insert:

(aa) if the current year is the 2022-23 income year and the

2022-23 income year was a loss year:

(i) how much (expressed as a specified amount) of the

entity's tax loss (if any) for the 2022-23 income year is

to be carried back to the 2021-22 income year; and

Extension of temporary loss carry back

Schedule 6

Main amendments

Part 1

No. , 2021

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Measures Bill 2021

255

(ii) how much (expressed as a specified amount) of the

entity's tax loss (if any) for the 2022-23 income year is

to be carried back to the 2020-21 income year; and

(iii) how much (expressed as a specified amount) of the

entity's tax loss (if any) for the 2022-23 income year is

to be carried back to the 2019-20 income year; and

(iv) how much (expressed as a specified amount) of the

entity's tax loss (if any) for the 2022-23 income year is

to be carried back to the 2018-19 income year;

(ab) if the current year is the 2022-23 income year and the

2021-22 income year was a loss year:

(i) how much (expressed as a specified amount) of the

entity's tax loss (if any) for the 2021-22 income year is

to be carried back to the 2020-21 income year; and

(ii) how much (expressed as a specified amount) of the

entity's tax loss (if any) for the 2021-22 income year is

to be carried back to the 2019-20 income year; and

(iii) how much (expressed as a specified amount) of the

entity's tax loss (if any) for the 2021-22 income year is

to be carried back to the 2018-19 income year;

18 At the end of section 160-25 (after the note)

Add:

(3) If the

current year is the 2022-23 income year:

(a) the entity cannot

carry back an amount of a

tax loss to the

2018-19 income year unless the entity was a

corporate tax

entity throughout:

(i) the 2018-19 income year (disregarding any period when

the entity was not in existence); and

(ii) the 2019-20 income year; and

(iii) the 2020-21 income year; and

(iv) the 2021-22 income year; and

(b) the entity cannot carry back an amount of a tax loss to the

2019-20 income year unless the entity was a corporate tax

entity throughout:

(i) the 2019-20 income year (disregarding any period when

the entity was not in existence); and

Schedule 6

Extension of temporary loss carry back

Part 1

Main amendments

256

Corporate Collective Investment Vehicle Framework and Other

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No. , 2021

(ii) the 2020-21 income year; and

(iii) the 2021-22 income year; and

2020-21 income year unless the entity was a corporate tax

entity throughout:

(i) the 2020-21 income year (disregarding any period when

the entity was not in existence); and

(ii) the 2021-22 income year; and

(d) the entity cannot carry back an amount of a tax loss to the

2021-22 income year unless the entity was a corporate tax

entity throughout the 2021-22 income year (disregarding any

period when the entity was not in existence).

Note:

The entity must be a corporate tax entity throughout 2022-23: see

paragraph 160-5(b).

19 Paragraph 195-15(5)(c)

Omit "or 2021-22", substitute ", 2021-22 or 2022-23".

20 Section 195-37

Omit "or 2021-22", substitute ", 2021-22 or 2022-23".

21 Paragraph 320-149(2)(aa)

Omit "or 2021-22", substitute ", 2021-22 or 2022-23".

22 Subsection 995-1(1) (note to the definition of carry back)

Omit "or 2021-22", substitute ", 2021-22 or 2022-23".

Taxation Administration Act 1953

23 Section 45-340 in Schedule 1 (paragraph (db) of step 1 of

the method statement)

Omit "or 2021-22", substitute ", 2021-22 or 2022-23".

Schedule 7

Deductible gift recipients

258

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

No. , 2021

Schedule 7--Deductible gift recipients

Income Tax Assessment Act 1997

1 In the appropriate position in subsection 30-25(2) (table)

Insert:

2.2.53

SU Australia Ministries Limited

the gift must be made on or

after 1 July 2021 and before

1 July 2023

2 In the appropriate position in subsection 30-50(2) (table)

Insert:

5.2.36

Virtual War Memorial Limited

the gift must be made on or

after 1 July 2021 and before

1 July 2026

3 Subsection 30-80(2) (table item 9.2.15)

Repeal the item.

4 Subsection 30-80(2) (cell at table item 9.2.27, column

headed "Special conditions")

Repeal the cell, substitute:

the gift must be made on or after

1 July 2021 and before 1 July

2026

5 Section 30-105 (cell at table item 13.2.23, column headed

"Special conditions")

Repeal the cell, substitute:

the gift must be made on or after

1 September 2021 and before

1 September 2026

6 In the appropriate position in section 30-105 (table)

Insert:

13.2.29

Australian Associated Press Ltd

the gift must be made on or

after 1 July 2021 and before

Deductible gift recipients

Schedule 7

No. , 2021

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

259

1 July 2026

7 In the appropriate position in section 30-105 (table)

Insert:

13.2.30

The Greek Orthodox Community Of New

South Wales Ltd

the gift must be made on or

after 1 July 2019

8 Section 30-315 (after table item 17)

Insert:

17AAAA

Australian Associated Press Ltd

item 13.2.29

9 Section 30-315 (table item 45B)

Repeal the item.

10 Section 30-315 (after table item 52B)

Insert:

52C

Greek Orthodox Community Of New

South Wales Ltd

item 13.2.30

11 Section 30-315 (before table item 112AG)

Insert:

112AFA

SU Australia Ministries Limited

item 2.2.53

12 Section 30-315 (after table item 121B)

Insert:

121C

Virtual War Memorial Limited

item 5.2.36

Schedule 8

Minor and technical amendments Spring 2021

Part 1

Amendments commencing day after Royal Assent

260

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Measures Bill 2021

No. , 2021

Schedule 8--Minor and technical amendments

Spring 2021

Part 1--Amendments commencing day after Royal

Assent

Australian Prudential Regulation Authority Supervisory

Levies Determination 2021

1 Section 9-2 (cell at table item

3, column headed "Minimum

restricted levy amount ($)")

Omit "7,50", substitute "7,500".

2 At the end of the instrument

Add:

Part 10--Application provisions

10-1 Amendment of section 9-2

The amendment of section 9-2 made by Part 1 of Schedule 8 to

the

Corporate Collective Investment Vehicle Framework and Other

Measures Act 2021

applies for the financial year beginning on

1 July 2021.

Corporations Act 2001

3 Subsection 323DC(1)

Omit "regulators", substitute "operators".

4 At the end of subsection 912D(3)

Add:

; (e) an obligation of a representative of the licensee under the

financial services law, so far as it relates to provisions of this

Act or the ASIC Act referred to in paragraphs (a), (b), (ba)

Minor and technical amendments Spring 2021

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261

and (c) of the definition of

financial services law

section 761A.

5 At the end of section 912D

Add:

(6) Regulations for the purposes of paragraph (4)(b) may prescribe a

civil penalty provision to the extent that it relates to the following:

(a) contraventions of specified provisions;

(b) specified matters.

6 Subsection 916B(3)

Repeal the subsection (not including the note), substitute:

(3) An authorised representative (an

authoriser

) of a financial services

licensee may, in that capacity, give an individual a written notice

authorising that individual, for the purposes of this Chapter, to

provide a specified financial service or financial services on behalf

of the licensee, but only if the licensee consents in writing given to

the authoriser.

7 After subsection 916B(3)

Insert:

(3A) An individual who is authorised as mentioned in subsection (3)

cannot, in that capacity, authorise another person under

subsection (3).

8 Subsection 916B(5A)

Omit "a body corporate", substitute "an authoriser".

9 Paragraph 916B(7)(b)

Omit "the body corporate", substitute "the authoriser".

10 Subsection 916B(9)

Omit "the body corporate", substitute "the authoriser".

11 Subsection 916F(1AA)

Repeal the subsection, substitute:

Schedule 8

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262

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Measures Bill 2021

No. , 2021

(1AA) Subsection (1) does not apply to an authorisation of a

representative by an authorised representative (the

authoriser

) if:

(a) the authorisation is given as mentioned in

subsection 916B(3); and

(b) the relevant consent under subsection 916B(3) was given in

respect of a specified class of individuals of which the

representative is a member; and

(d) the only financial services that the representative is

authorised to provide are one or more of the following:

(i) general advice that relates to financial products covered

by regulations made for the purposes of this paragraph;

(ii) dealing in financial products covered by regulations

made for the purposes of this paragraph;

(iii) personal advice about a basic deposit product or about a

facility for making non-cash payments that relates to a

basic deposit product; and

(e) the authoriser provides information about the representative

and the representative's authorisation when requested.

Note 1:

Regulations made for the purposes of paragraph (d) may be expressed

to cover all financial products, or only 1 or more specified kinds of

financial products.

Note 2:

A defendant bears an evidential burden in relation to the matters in

subsection (1AA). See subsection 13.3(3) of the

Criminal Code

12 Paragraph 946C(3)(c)

Omit "5 days", substitute "5 business days".

13 Paragraph 1019B(3)(b)

Omit "5th day", substitute "fifth business day".

14 In the appropriate position in Chapter 10

Insert:

Minor and technical amendments Spring 2021

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Amendments commencing day after Royal Assent

Part 1

No. , 2021

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Measures Bill 2021

263

Part 10.62--Application provisions relating to

Schedule 8 to the Corporate Collective

Investment Vehicle Framework and Other

Measures Act 2021

1689 Definitions

In this Part:

amending Part

means Part 1 of Schedule 8 to the

Corporate

Collective Investment Vehicle Framework and Other Measures Act

2021

commencement day

means the day the amending Part commences.

1690 Application of paragraph 912D(3)(e)

(1) Paragraph 912D(3)(e), as inserted by the amending Part, applies in

relation to a reportable situation that arises on or after 1 October

2021 and relates to a breach of an obligation referred to in that

paragraph.

(2) If:

(a) due to subsection (1), a financial services licensee is required,

under a provision of Division 3 of Part 7.6, to do a thing in

relation to a reportable situation that arose before the

commencement day; and

(b) that thing must be done within a period of a specified number

of days after the licensee first knows about, or is reckless

with respect to, particular matters; and

then that requirement is taken to be a requirement to do the thing

within the specified number of days after the commencement day.

1691 Application of subsection 912D(6)

Subsection 912D(6), as inserted by the amending Part, applies in

relation to a reportable situation that arises on or after the

commencement day.

Schedule 8

Minor and technical amendments Spring 2021

Part 1

Amendments commencing day after Royal Assent

264

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Measures Bill 2021

No. , 2021

1692 Saving of regulation 7.6.04A of the Corporations

Regulations 2001

Regulation 7.6.04A of the

Corporations Regulations 2001

, as in

force immediately before the commencement day, has effect, on

and after the commencement day, as if the regulation had been

made for the purposes of paragraph 916F(1AA)(1)(d) as inserted

by the amending Part.

Foreign Acquisitions and Takeovers Act 1975

15 Paragraph 62A(3)(b)

Omit "subsection (1)", substitute "subsection (2)".

16 Subsection 76(4)

Omit "paragraph (1)(c)", substitute "subparagraph (1)(b)(i)".

Income Tax Rates Act 1986

17 At the end of subsection 3A(1)

Add:

; or (d) a COVID-19 pandemic event 408 visa (as defined by

subclause 9204(1) of Schedule 13 to the

Migration

Regulations 1994

18 Application of amendment

The amendment of subsection 3A(1) of the

Income Tax Rates Act 1986

made by this Part applies to an individual in relation to a particular time

if:

(a) the time is in an income year (a

pre-commencement income

year

) that begins on or after 1 July 2019 but before the first

1 July to occur after the day this Part commences and the

individual is a non-resident taxpayer in relation to that

income year; or

(b) the time:

(i) is in a pre-commencement income year in relation to

which there are one or more part-year residency periods

in relation to the individual; and

Minor and technical amendments Spring 2021

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No. , 2021

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265

(ii) is not in one of those part-year residency periods; or

1 July to occur after the day this Part commences.

National Consumer Credit Protection Act 2009

19 Paragraph 50A(3)(c)

Repeal the paragraph, substitute:

Commonwealth legislation that is:

(i) covered by paragraph (d) of the definition of

credit

legislation

in subsection 5(1); and

(ii) specified in regulations made for the purposes of this

subparagraph.

20 At the end of subsection 50A(3)

Add:

; (d) an obligation of a representative of the licensee under this

Act, the Transitional Act, Division 2 of Part 2 of the ASIC

Act or regulations made for the purpose of that Division.

21 After subsection 50A(5)

Insert:

(5A) Regulations for the purposes of paragraph (4)(b) may prescribe a

civil penalty provision to the extent that it relates to the following:

(a) contraventions of specified provisions;

(b) specified matters.

National Consumer Credit Protection (Transitional and

Consequential Provisions) Act 2009

22 In the appropriate position

Insert:

Schedule 8

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Amendments commencing day after Royal Assent

266

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

No. , 2021

Schedule 20--Application provisions relating

to Schedule 8 to the Corporate

Collective Investment Vehicle

Framework and Other Measures Act

2021

1 Definitions

In this Schedule:

amending Part

means Part 1 of Schedule 8 to the

Corporate Collective

Investment Vehicle Framework and Other Measures Act 2021

commencement day

means the day the amending Part commences.

2 Application of paragraph 50A(3)(d) of the National Credit

Act

(1)

Paragraph 50A(3)(d) of the National Credit Act, as inserted by the

amending Part, applies in relation to a reportable situation that arises on

or after 1 October 2021 and relates to a breach of an obligation referred

to in that paragraph.

(2)

If:

(a) due to subitem (1), a licensee is required, under a provision

of Division 5 of Part 2-2 of the National Credit Act, to do a

thing in relation to a reportable situation that arose before the

commencement day; and

(b) that thing must be done within a period of a specified number

of days after the licensee first knows about, or is reckless

with respect to, particular matters; and

then, that requirement is taken to be a requirement to do the thing

within the specified number of days after the commencement day.

Minor and technical amendments Spring 2021

Schedule 8

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No. , 2021

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3 Application of paragraph 50A(3)(c) and subsection 50A(5)

of the National Credit Act

Paragraph 50A(3)(c) and subsection 50A(5) of the National Credit Act,

as inserted by the amending Part, apply in relation to a reportable

situation that arises on or after the commencement day.

Payment Times Reporting Act 2020

23 Section 5 (definition of volunteering entity)

Omit "paragraph 7(1)(b)", substitute "subsection 7(1A)".

24 Subsection 7(1)

Repeal the subsection, substitute:

(1) A constitutionally covered entity becomes a

reporting entity

at the

start of an income year for the entity if the entity is covered by

subsection (2).

(1A) If a constitutionally covered entity gives the Regulator notice in

writing that the entity elects to become a reporting entity, the entity

becomes a

reporting entity

when the notice is given.

Note:

A reporting entity that is a reporting entity only because of an election

under subsection (1A) is a

volunteering entity

: see section 5.

25 Section 8

Omit "Each", substitute "(1) Subject to subsections (2) and (3), each".

26 At the end of section 8

Add:

(2) If a volunteering entity becomes a reporting entity within the first 6

months of an income year for the entity, the first 6 months of that

income year is not a reporting period for the entity.

(3) If a volunteering entity becomes a reporting entity after the first 6

months of an income year for the entity, no period in that income

year is a reporting period for the entity.

Schedule 8

Minor and technical amendments Spring 2021

Part 1

Amendments commencing day after Royal Assent

268

Corporate Collective Investment Vehicle Framework and Other

Measures Bill 2021

No. , 2021

27 Application of volunteering entity amendments

The amendments of sections 5, 7 and 8 of the

Payment Times Reporting

Act 2020

made by this Part apply in relation to an election to become a

reporting entity given by an entity on or after the commencement of this

Part.

28 Paragraph 14(1)(h)

Repeal the paragraph, substitute:

(h) state the proportion, determined by total value, of all invoices

paid by the entity during the reporting period that were small

business invoices; and

29 Subsection 14(2)

Repeal the subsection, substitute:

(2) The rules may prescribe the method for working out any of the

matters mentioned in paragraph (1)(e), (f), (g) or (h), including in

relation to the issue or payment of small business invoices.

30 Application of amendments of section 14

(1)

Paragraph 14(1)(h) of the

Payment Times Reporting Act 2020

inserted by this Part,

applies in relation to a payment times report given

on or after the commencement of this Part, including a payment times

report for a reporting period that began before that commencement.

(2)

Subsection 14(2) of the

Payment Times Reporting Act 2020

as inserted

by this Part,

applies in relation to a payment times report given on or

after the commencement of this Part, including a payment times report

for a reporting period that began before that commencement.

(3)

Rules that were:

(a) made for the purposes of subsection 14(2) of the

Payment

Times Reporting Act 2020

;

and

(b) in force immediately before the commencement of this Part;

have effect, on and after that commencement as if they had been made

for the purposes of subsection 14(2) of the

Payment Times Reporting

Act 2020

as inserted by this Part.

Minor and technical amendments Spring 2021

Schedule 8

Amendments commencing day after Royal Assent

Part 1

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31 Paragraphs 27(3)(a) and (b)

Repeal the paragraphs.

Taxation Administration Act 1953

32 Subsection 350-10(4) in Schedule 1

Omit "the matters set out in the document to the same extent as the

original document would have been evidence of those matters",

substitute "a matter to the same extent as the original document would

have been evidence of the matter".

Schedule 8

Minor and technical amendments Spring 2021

Part 2

Amendments commencing first day of next quarter

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Part 2--Amendments commencing first day of next

quarter

Income Tax Assessment Act 1997

33 Paragraph 840-905(b)

Repeal the paragraph, substitute:

(b) that you

derive at a time when you are a foreign resident

and:

(i) you hold a Temporary Work (International Relations)

Visa (subclass 403); or

(ii) you hold a Temporary Activity Visa (subclass 408)

having previously held a Temporary Work

(International Relations) Visa (subclass 403).

34 Application of amendment

The amendment of paragraph 840-905(b) of the

Income Tax Assessment

Act 1997

made by this Part applies in relation to income derived on or

after 1 July 2019.

Taxation Administration Act 1953

35 Paragraph 12-319A(b) in Schedule 1

Repeal the paragraph, substitute:

(b) at a time when the employee is a foreign resident and:

(i) the employee holds a Temporary Work (International

Relations) Visa (subclass 403); or

(ii) the employee holds a Temporary Activity Visa

(subclass 408) having previously held a Temporary

Work (International Relations) Visa (subclass 403).

36 Application of amendment

The amendment of paragraph 12-319A(b) in Schedule 1 to the

Taxation

Administration Act 1953

made by this Part applies in relation to salary,

wages, commission, bonuses or allowances paid on or after 1 July 2019.

Minor and technical amendments Spring 2021

Schedule 8

Amendments with contingent commencement

Part 4

No. , 2021

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Measures Bill 2021

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Part 4--Amendments with contingent

commencement

Income Tax Assessment Act 1936

39 After subsection 204(2)

Insert:

(2A) The Commissioner may disclose the tax file number of a person to

a registrar specified in subsection 355-67(2) in Schedule 1 to the

Taxation Administration Act 1953

if:

(a) the Commissioner is appointed as that registrar; and

(b) no other person or body is appointed as that registrar; and

or system that is used for the performance of functions, or the

exercise of powers, of both the Commissioner and that

registrar; and

(d) use of the application or system by that registrar is on the

condition that tax file numbers disclosed through use of the

application or system are only to be recorded, used, divulged,

disclosed or communicated to the extent reasonably

necessary for the application or system to be used for the

performance of that registrar's functions, or the exercise of

that registrar's powers.

40 Subsection 204(3)

Omit "or (2)", substitute ", (2) or (2A)".

Taxation Administration Act 1953

41 After paragraph 8WB(1A)(b)

Insert:

(ba) in connection with the first-mentioned person exercising

powers or performing functions of a registrar specified in

subsection 355-67(2) in Schedule 1; or

Schedule 8

Minor and technical amendments Spring 2021

Part 4

Amendments with contingent commencement

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No. , 2021

42 Subsection 8WB(2)

After "(b)", insert ", (ba)".

43 Application of amendments

The amendments of section 204 of the

Income Tax Assessment Act 1936

and section 8WB of the

Taxation Administration Act 1953

made by this

Part apply, from the commencement of this Part, in relation to a tax file

number issued before, on or after that commencement.

Retirement income covenant

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No. , 2021

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Measures Bill 2021

275

Schedule 9--Retirement income covenant

Superannuation Industry (Supervision) Act 1993

1 After subsection 52(8)

Insert:

Retirement income covenants

(8A) The covenants referred to in subsection (1) include the following

covenants by each trustee of the entity:

(a) to formulate, review regularly and give effect to a retirement

income strategy that meets the requirements in section 52AA;

(b) to take reasonable steps to gather the information necessary

to inform the formulation and review of the strategy;

(d) to record in the document in which the strategy is recorded:

(i) each determination made by the trustee for the purposes

of the strategy, and the reasons for the determination;

and

(ii) each other decision made by the trustee in formulating

reviewing or giving effect to the strategy that the trustee

considers to be significant, and the reasons for the

decision; and

(iii) the steps taken to gather the information that informed

the formulation of the strategy, and the reasons for

taking those steps;

(e) to make a summary of the strategy publicly available on the

website of the entity.

(8B) Subsection (8A) does not apply if the entity is a regulated

superannuation fund, and the only benefits it provides to, or in

respect of, its members are any of the following:

(a) death benefit;

(b) permanent incapacity benefit;

temporary incapacity (within the meaning of the

superannuation data and payment standards).

Schedule 9

Retirement income covenant

276

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No. , 2021

2 After section 52

Insert:

52AA Retirement income strategy requirements--registrable

superannuation entities

(1) A retirement income strategy formulated for an entity by a trustee

for the purposes of subsection 52(8A) must meet the requirements

in this section.

(2) The strategy must be for the benefit of beneficiaries of the entity

who are retired or who are approaching retirement and must

address how the trustee will assist those beneficiaries to achieve

and balance the following objectives:

(a) to maximise expected retirement income over the period of

retirement;

(b) to manage expected risks to the sustainability and stability of

retirement income over the period of retirement of the

following kinds:

(i) longevity risks;

(ii) investment risks;

(iii) inflation risks;

(iv) any other risks to the sustainability and stability of the

retirement income;

retirement.

Determining the class of beneficiaries who are retired or who are

approaching retirement

(3) The trustee must determine the class of beneficiaries of the entity

who are retired or who are approaching retirement for the purposes

of the strategy. The class may be determined excluding

beneficiaries who:

(a) only hold a defined benefit interest in the entity; and

(b) are not eligible to commute that benefit (whether during the

period of retirement or otherwise).

(4) The strategy may divide the class of beneficiaries into sub-classes

and make different provision in respect of those sub-classes.

Retirement income covenant

Schedule 9

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Determining meaning of retirement income and period of

retirement

(5) The trustee must determine the meaning of retirement income for

the purposes of the strategy, which:

(a) must include income, net of tax, received during the period of

retirement of the following kinds:

(i) income paid from, or supported by, a superannuation

interest in the entity;

(ii) income from an age pension under the

Social Security

Act 1991

; and

(b) may include income from any other source if the trustee

determines that it is appropriate to include income from that

source.

(6) The trustee must determine the meaning of period of retirement for

the purposes of the strategy.

3 Application of this Schedule

(1)

The amendments of the

Superannuation Industry (Supervision) Act

1993

made by this Schedule apply, on and after the commencement of

this Schedule, in relation to a registrable superannuation entity

(including a registrable superannuation entity in existence before that

commencement).

(2)

Despite subitem (1), a trustee of the entity is not required to have

formulated a retirement income strategy or published a summary of a

retirement income strategy before 1 July 2022.

Schedule 10

Employee share schemes: removing cessation of employment as a taxing

point

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Schedule 10--Employee share schemes:

removing cessation of employment as

a taxing point

Income Tax Assessment Act 1997

1 Section 83A-

100 (paragraph beginning "If there is a real

risk")

Omit "If you cease employment earlier, or if 15 years pass", substitute

"If 15 years pass".

2 Subsection 83A-115(2)

Omit "earliest of the times mentioned in subsections (4) to (6)",

substitute "earlier of the times mentioned in subsections (4) and (6)".

3 Subsection 83A-115(5)

Repeal the subsection.

4 Subsection 83A-115(6)

Omit "3rd", substitute "2nd".

5 Subsection 83A-120(2)

Omit "subsections (4) to (7)", substitute "subsections (4), (6) and (7)".

6 Subsection 83A-120(5)

Repeal the subsection.

7 Subsection 83A-120(6)

Omit "3rd", substitute "2nd".

8 Subsection 83A-120(7)

Omit "4th", substitute "3rd".

Employee share schemes: removing cessation of employment as a taxing point

Schedule 10

No. , 2021

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Measures Bill 2021

279

9 Application of amendments

The amendments made by this Schedule apply in relation to each ESS

interest for which the ESS deferred taxing point occurs on or after:

(a) unless paragraph (b) applies--the first 1 July to occur after

the day on which this Act receives the Royal Assent; or

(b) if this Act receives the Royal Assent on a 1 July--that 1 July.

Commonwealth of Australia Bills

CORPORATE COLLECTIVE INVESTMENT VEHICLE FRAMEWORK AND OTHER MEASURES BILL 2021