Commonwealth Consolidated Acts Commonwealth Consolidated ActsAustralian Securities and Investments Commission Act 2001
1 At the end of section 12DA
Add:
(3) If a person engages in conduct that:
(a) does not contravene subsection 674A(2) of the Corporations Act, but would contravene that subsection if paragraph 674A(2)(d) of the Corporations Act contained the same text as paragraph 674(2)(d) of the Corporations Act; or
(b) does not contravene subsection 675A(2) of the Corporations Act, but would contravene that subsection if paragraph 675A(2)(b) of the Corporations Act contained the same text as paragraph 675(2)(b) of the Corporations Act;
the person's engaging in that conduct does not contravene subsection (1) of this section.
Note: The subsections mentioned in paragraphs (a) and (b) deal with continuous disclosure of information by disclosing entities.
(4) For the purposes of subsection (3), a person engages in conduct that contravenes a provision even if engaging in the conduct does not constitute an offence, or lead to a liability, because of the availability of a defence.
2 Section 674 (heading)
Repeal the heading, substitute:
3 Paragraph 674(2)(c)
Repeal the paragraph, substitute:
(c) the information is not generally available; and
(d) a reasonable person would expect the information, if it were generally available, to have a material effect on the price or value of ED securities of the entity;
4 Subsection 674(2) (note 2)
Repeal the note.
5 Subsections 674(2A) and (2B)
Repeal the subsections.
6 Subsection 674(5) (note)
Repeal the note, substitute:
Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Note 2: This subsection is not a civil penalty provision, as it is not listed in the table in subsection 1317E(3).
7 After section 674
Insert:
(1) Subsection (2) applies to a listed disclosing entity if provisions of the listing rules of a listing market in relation to that entity require the entity to notify the market operator of information about specified events or matters as they arise for the purpose of the operator making that information available to participants in the market.
(2) If:
(a) this subsection applies to a listed disclosing entity; and
(b) the entity has information that those provisions require the entity to notify to the market operator; and
(c) the information is not generally available; and
(d) the entity knows, or is reckless or negligent with respect to whether, the information would, if it were generally available, have a material effect on the price or value of ED securities of the entity;
the entity must notify the market operator of that information in accordance with those provisions.
Note 1: Except for paragraph (d), this subsection is identical to subsection 674(2).
Note 2: This subsection is a financial services civil penalty provision (see section 1317E). As a result, compensation orders are available for contraventions of this subsection (see section 1317HA). For relief from liability relating to this subsection, see section 1317S.
Note 3: This subsection does not create an offence (see subsection 1311(1A)).
(3) A person who is involved in a listed disclosing entity's contravention of subsection (2) contravenes this subsection.
Note 1: This subsection is a financial services civil penalty provision (see section 1317E). As a result, compensation orders are available for contraventions of this subsection (see section 1317HA). For relief from liability relating to this subsection, see section 1317S.
Note 2: Section 79 defines involved .
(4) A person does not contravene subsection (3) if the person proves that the person:
(a) took all steps (if any) that were reasonable in the circumstances to ensure that the listed disclosing entity complied with its obligations under subsection (2); and
(b) after doing so, believed on reasonable grounds that the listed disclosing entity was complying with its obligations under that subsection.
(5) For the purposes of this section, subsections 674(3) and (3A) apply as if each reference in those subsections to subsection 674(2) were replaced by a reference to subsection (2) of this section.
(6) Nothing in subsection (2) is intended to affect or limit the situations in which action can be taken in respect of a failure to comply with provisions referred to in subsection (1).
(7) Subsection 1317QB(1) (state of mind) does not apply in relation to subsections (2) and (3) of this section.
Note: In relation to subsection (3) of this section, see also subsection 1317QB(2).
8 Section 675 (heading)
Repeal the heading, substitute:
675 Continuous disclosure--other disclosing entities--reasonable person's expectations
9 Subsection 675(2)
Omit "the disclosing entity becomes aware of information".
10 Paragraphs 675(2)(a) and (b)
Repeal the paragraphs, substitute:
(a) the disclosing entity becomes aware of information that is not generally available; and
(b) a reasonable person would expect the information, if it were generally available, to have a material effect on the price or value of ED securities of the entity; and
11 Subsection 675(2) (note 2)
Repeal the note.
12 Subsections 675(2A) and (2B)
Repeal the subsections.
13 After section 675
Insert:
675A Continuous disclosure--other disclosing entities--knowledge, recklessness or negligence
(1) This section applies to:
(a) a listed disclosing entity if:
(i) there is only one listing market in relation to the entity and the listing rules of that market do not contain provisions of a kind referred to in subsection 674A(1); or
(ii) there is more than one listing market in relation to the entity and none of those markets have listing rules that contain provisions of a kind referred to in subsection 674A(1); or
(b) an unlisted disclosing entity.
(2) If:
(a) the disclosing entity becomes aware of information that is not generally available; and
(b) the entity knows, or is reckless or negligent with respect to whether, the information would, if it were generally available, have a material effect on the price or value of ED securities of the entity; and
(c) either:
(i) if those securities are not managed investment products or foreign passport fund products--the information is not required to be included in a supplementary disclosure document or a replacement disclosure document in relation to the entity; or
(ii) if those securities are managed investment products or foreign passport fund products--the information has not been included in a Product Disclosure Statement, a Supplementary Product Disclosure Statement, or a Replacement Product Disclosure Statement, a copy of which has been lodged with ASIC; and
(d) regulations made for the purposes of this paragraph do not provide that disclosure under this section is not required in the circumstances;
the disclosing entity must, as soon as practicable, lodge a document with ASIC containing the information.
Note 1: Except for paragraph (b), this subsection is identical to subsection 675(2).
Note 2: This subsection is a financial services civil penalty provision (see section 1317E). As a result, compensation orders are available for contraventions of this subsection (see section 1317HA). For relief from liability relating to this subsection, see section 1317S.
Note 3: This subsection does not create an offence (see subsection 1311(1A)).
Note 4: This subsection has an extended operation in relation to disclosing entities that have made recognised offers of securities under Chapter 8 (see section 1200K).
(3) A person who is involved in a disclosing entity's contravention of subsection (2) contravenes this subsection.
Note 1: This subsection is a financial services civil penalty provision (see section 1317E). As a result, compensation orders are available for contraventions of this subsection (see section 1317HA). For relief from liability relating to this subsection, see section 1317S.
Note 2: Section 79 defines involved .
(4) A person does not contravene subsection (3) if the person proves that the person:
(a) took all steps (if any) that were reasonable in the circumstances to ensure that the disclosing entity complied with its obligations under subsection (2); and
(b) after doing so, believed on reasonable grounds that the disclosing entity was complying with its obligations under that subsection.
(5) For the purposes of this section, subsections 675(3) and (4) apply as if each reference in those subsections to subsection 675(2) were replaced by a reference to subsection (2) of this section.
(6) Subsection 1317QB(1) (state of mind) does not apply in relation to subsections (2) and (3) of this section.
Note: In relation to subsection (3) of this section, see also subsection 1317QB(2).
14 Section 676 (heading)
Repeal the heading, substitute:
676 When information is generally available
15 Subsection 676(1)
Omit "674 and 675", substitute "674, 674A, 675 and 675A".
16 Section 677 (heading)
Repeal the heading, substitute:
677 Material effect on price or value
17 Section 677
Before "For the purposes of sections 674 and 675", insert "(1)".
18 At the end of section 677
Add:
(2) For the purposes of sections 674A and 675A:
(a) an entity knows information would have a material effect on the price or value of ED securities of the entity if the entity knows the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether to acquire or dispose of the ED securities; and
(b) an entity is reckless or negligent with respect to whether information would have a material effect on the price or value of ED securities of the entity if the entity is reckless or negligent with respect to whether the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether to acquire or dispose of the ED securities.
19 Subsection 1041H(3)
Omit "Conduct", substitute "If a person engages in conduct".
20 Subsection 1041H(3)
Omit all the words from and including "does not contravene" to and including "availability of a defence", substitute "the person's engaging in that conduct does not contravene subsection (1) of this section".
21 At the end of section 1041H
Add:
(4) If a disclosing entity engages in conduct that:
(a) does not contravene subsection 674A(2), but would contravene that subsection if paragraph 674A(2)(d) contained the same text as paragraph 674(2)(d); or
(b) does not contravene subsection 675A(2), but would contravene that subsection if paragraph 675A(2)(b) contained the same text as paragraph 675(2)(b); or
the disclosing entity's engaging in that conduct does not contravene subsection (1) of this section.
Note: The subsections mentioned in paragraphs (a) and (b) deal with continuous disclosure of information by disclosing entities.
(5) For the purposes of subsections (3) and (4), a person or disclosing entity engages in conduct that contravenes a provision even if engaging in the conduct does not constitute an offence, or lead to a liability, because of the availability of a defence.
22 Subsection 1317E(3) (table item dealing with subsections 674(2), 674(2A), 675(2) and 675(2A))
Repeal the item, substitute:
subsections 674A(2), 674A(3), 675A(2) and 675A(3) | continuous disclosure--knowledge, recklessness or negligence | financial services |
23 Subsection 1325(7) (paragraph (c) of the definition of section 1325 order provision )
After "a provision of Chapter 6CA", insert "(other than sections 674 and 675)".
Part 2 -- Consequential amendments
Australian Securities and Investments Commission Act 2001
24 Subparagraph 127(2D)(b)(ii)
Omit "674 and 675", substitute "674, 674A, 675 and 675A".
25 Section 9 (paragraph (a) of the definition of continuous disclosure notice )
Omit "subsection 674(1)", substitute "subsections 674(1) and 674A(1)".
26 Section 9 (paragraph (b) of the definition of continuous disclosure notice )
Omit "section 675", substitute "section 675 or 675A".
27 Subsection 111AP(1)
Omit "674 and 675", substitute "674, 674A, 675 and 675A".
28 Paragraph 111AR(1)(d)
Omit "674 and 675", substitute "674, 674A, 675 and 675A".
29 Paragraph 708AA(3)(c)
Omit "674 or 675", substitute "674, 674A, 675 or 675A".
30 Subparagraph 708AA(7)(c)(ii)
Omit "section 674", substitute "sections 674 and 674A".
31 Paragraph 708A(2)(c)
Omit "674 or 675", substitute "674, 674A, 675 or 675A".
32 Subparagraph 708A(6)(d)(ii)
Omit "section 674", substitute "sections 674 and 674A".
33 Paragraph 713(6)(aa)
Omit "subsection 674(2) or 675(2)", substitute "subsection 674(2), 674A(2), 675(2) or 675A(2)".
34 Paragraph 713A(23)(c)
Omit "674 or 675", substitute "674, 674A, 675 or 675A".
35 Paragraph 1012DAA(3)(b)
Omit "674 or 675", substitute "674, 674A, 675 or 675A".
36 Paragraph 1012DAA(3)(ba)
Omit "674 or 675", substitute "674, 674A, 675 or 675A".
37 Subparagraph 1012DAA(7)(d)(ii)
Omit "section 674 as it", substitute "sections 674 and 674A as they".
38 Subparagraph 1012DAA(7)(da)(ii)
Omit "section 674 as it applies", substitute "sections 674 and 674A as they apply".
39 Paragraph 1012DA(2)(b)
Omit "674 or 675", substitute "674, 674A, 675 or 675A".
40 Paragraph 1012DA(6)(e)
Omit "section 674", substitute "sections 674 and 674A".
41 Subparagraph 1013F(2)(d)(ii)
Omit "674 and 675", substitute "674, 674A, 675 and 675A".
42 Subparagraph 1013FA(3)(a)(ii)
Omit "subsection 674(2) or 675(2)", substitute "subsection 674(2), 674A(2), 675(2) or 675A(2)".
43 Subsection 1017B(2) (note 1)
Omit "(sections 674 - 677)".
44 Section 1200K
Omit "section 675 also has the operation it would have if paragraph 675(2)(c)", substitute "sections 675 and 675A also have the operation they would have if paragraphs 675(2)(c) and 675A(2)(c)".
45 Paragraph 1317DAA(2)(e)
Repeal the paragraph.
46 Paragraph 1317DAA(3)(e)
Repeal the paragraph.
47 At the end of section 1317DAA
Add:
(4) For the purposes of this Part, in determining whether a disclosing entity has contravened subsection 674(2) or 675(2), treat the offences created by those subsections as being offences of strict liability.
48 Subsection 1317DAB(1)
Omit "as an alternative to proceedings for civil penalties under Part 9.4B".
49 Paragraph 1317DAE(1)(f)
Repeal the paragraph.
50 Paragraph 1317DAE(3)(d)
Repeal the paragraph, substitute:
(d) a civil penalty order under Part 9.4B has at any time been made against the disclosing entity in relation to a contravention of subsection 674(2) or 675(2) (as those subsections applied before the commencement of Part 1 of Schedule 2 to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 ); or
51 Paragraph 1317DAE(5)(b)
Repeal the paragraph, substitute:
(b) a civil penalty order under Part 9.4B has at any time been made against the disclosing entity in relation to a contravention of subsection 674(2) or 675(2) (as those subsections applied before the commencement of Part 1 of Schedule 2 to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 ); or
52 Subsection 1317DAG(2)
Repeal the subsection.
53 Subsection 1317DAG(3)
Omit "no other proceedings (whether criminal or civil)", substitute "no proceedings".
54 Paragraph 1317DAI(6)(d)
Repeal the paragraph.
Part 3 -- Application provisions
55 In the appropriate position in Chapter 10
Insert:
In this Part:
"amending Act" means the Treasury Laws Amendment (2021 Measures No. 1) Act 2021 .
The amendments made by Parts 1 and 2 of Schedule 2 to the amending Act to apply in relation to conduct that is engaged in on or after the commencement of those Parts.
1683B Review of operation of laws
(1) The Minister must cause a review of the operation of the amendments made by Parts 1 and 2 of Schedule 2 to the amending Act to be conducted by an independent expert within 6 months after the second anniversary of the commencement of this section.
(2) The person who conducts the review must give the Minister a written report of the review.
(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.
Recommendations
(4) The report may set out recommendations to the Commonwealth Government.
(5) If the report sets out one or more recommendations to the Commonwealth Government, the report must set out the reasons for those recommendations.
Government response to recommendations
(6) If the report sets out one or more recommendations to the Commonwealth Government, as soon as practicable, and in any event within 3 months, after the report is first tabled in a House of the Parliament, the Minister must cause:
(a) a statement setting out the Commonwealth Government's response to each of the recommendations to be prepared; and
(b) the statement to be published on the Department's website.
(1) This section applies if the Minister:
(a) fails to cause a review to be conducted in accordance with subsection 1683B(1) within the period required by that subsection; or
(b) is given a written report of a review conducted in accordance with subsection 1683B(1), but fails to cause a copy of the report to be tabled in each House of the Parliament within the period required by subsection 1683B(3); or
(c) is given a written report of a review conducted in accordance with subsection 1683B(1) that sets out one or more recommendations to the Commonwealth Government, but fails to cause a statement to be published on the Department's website within the period required by subsection 1683B(6).
(2) This Act and the ASIC Act have effect, on or after the day mentioned in subsection (3), as if the amendments made by Parts 1, 2 and 4 of Schedule 2 to the amending Act had not been made.
(3) The day (the sunsetting day ) is:
(a) the day after the end of the period referred to in the applicable paragraph of subsection (1), unless paragraph (b) of this subsection applies; or
(b) if there is more than one applicable paragraph in subsection (1)--the earliest day determined under paragraph (a) of this subsection for each of those paragraphs.
(4) To avoid doubt, nothing in this section affects the validity of anything that is done, or not done, in reliance on this Act or the ASIC Act as in force before the sunsetting day.
Part 4 -- Contingent amendments
56 Subparagraph 675A(2)(c)(ii)
Omit "ASIC", substitute "the Registrar".
57 Subsection 675A(2)
Omit "ASIC containing the information.", substitute "the Registrar containing the information. The notice must meet any requirements of the data standards.".