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CORPORATIONS ACT 1989 No. 109 of 1989 - SECT 9
Dictionary
9. Unless the contrary intention appears: "accounting records" includes:
(a) invoices, receipts, orders for the payment of money, bills of
exchange, cheques, promissory notes, vouchers and other documents of
prime entry; and
(b) such working papers and other documents as are necessary to explain
the methods and calculations by which accounts are made up;
"accounting standard", except in sections 283 and 288, means an instrument in
force under section 283, or a provision of such an instrument;
"accounts", in Parts 3.6 and 3.7, means profit and loss accounts and
balance-sheets and includes statements, reports and notes, other than
auditors' reports and directors' reports, attached to or intended to be read
with any of those profit and loss accounts or balance-sheets;
"acquire":
(a) in relation to a futures contract-has the meaning given by sections
23 , 26, 27 and 28;
(b) in relation to shares-has, in Chapters 6 and 7, the meaning given by
subsection 51 (1); or
(c) in relation to marketable securities within the meaning of Chapter
6-has, in Chapter 6, the meaning given by subsection 51(1) as applying
by virtue of section 605;
"Act", in the case of a reference to this Act, includes the regulations;
"adjustment agreement" means a standardised agreement the effect of which is
that:
(a) a particular person will either be under a Chapter 8 obligation to
pay, or will have a Chapter 8 right to receive, an amount of money;
(b) whether the person will be under such an obligation to pay, or will
have such a right to receive, the amount of money will depend on a
particular state of affairs existing at a particular future time,
including, without limiting the generality of the foregoing, a state
of affairs that relates to fluctuations in the value or price of a
commodity or other property, or in an index or other factor; and
(c) the amount of money will be calculated in a particular manner by
reference to that state of affairs;
whether or not the agreement has any other effect or is capable of being
varied or discharged before that future time;
"affidavit" includes affirmation;
"agency" means an agency, authority, body or person;
"agreement" means:
(a) in Chapter 6 or 7-a relevant agreement; or
(b) in Chapter 8-a Chapter 8 agreement;
"amount" includes a nil amount and zero;
"ancillary offence" means an offence against:
(a) section 6, 7 or 7A of the Crimes Act 1914; or
(b) subsection 86 (1) of that Act by virtue of paragraph 86 (1) (a) of
that Act;
"annual general meeting", in relation to a company, means a meeting of the
company that section 245 requires to be held;
"annual return" means the return that section 335 requires to be made and
includes any document accompanying the return;
"applicable accounting standard", in relation to, or in relation to accounts
or group accounts forming part of, a company's financial statements for a
financial year, means an accounting standard that, when the financial
statements are made out:
(a) applies to that financial year; and
(b) is relevant to the financial statements;
"approved securities organisation" means a body corporate:
(a) that is an eligible corporation; and
(b) in relation to which an approval under section 770 is in force;
"arbitrage transaction" means a purchase or sale of securities effected in the
ordinary course of trading on a stock market together with an offsetting sale
or purchase of those securities effected at the same time, or at as nearly the
same time as practicable, in the ordinary course of trading on another
stock market for the purpose of obtaining a profit from the difference between
the prices of those securities in the 2 stock markets;
"arrangement", in Part 5.1, includes a reorganisation of the share capital of
a body corporate by the consolidation of shares of different classes, by the
division of shares into shares of different classes, or by both of those
methods;
"articles" means articles of association;
"assets" means:
(a) in relation to the holder of a futures brokers licence-all the assets
of the holder, whether or not used in connection with a business of
dealing in futures contracts; and
(b) in relation to the holder of a dealers licence-all the assets of the
holder, whether or not used in connection with a securities business;
"associate" has the meaning given by Division 2;
"Australia" includes:
(a) except in Parts 3.5 and 5.2-an external Territory to which this Act
extends; and
(b) in Part 3.5 or 5.2-all the external Territories;
"Australian bank" means:
(a) a bank as defined in section 5 of the Banking Act 1959; or
(b) a bank constituted by or under a law of a State or Territory;
"Australian company law" means:
(a) this Act; or
(b) the company law of a State or Territory;
"Australian court" means a federal court or a court of a State or Territory;
"Australian law" means a law of the Commonwealth or of a State or Territory;
"authorised trustee corporation" means a body corporate that is declared by
the regulations to be an authorised trustee corporation for the purposes of
the provision in which the expression appears;
"available", in relation to a name, means available by virtue of Part 4.2;
"banker's books" means:
(a) books of an Australian bank, including documents used in the ordinary
business of an Australian bank;
(b) cheques, orders for the payment of money, bills of exchange and
promissory notes in an Australian bank's possession;
(c) scrip in an Australian bank's possession, whether by way of pledge or
otherwise; or
(d) documents that create or evidence futures contracts and are in an
Australian bank's possession;
"banking corporation" means a body corporate that carries on, as its sole or
principal business, the business of banking (other than State banking not
extending beyond the limits of the State concerned);
"banning order" means:
(a) in Chapter 7-an order by the Commission in force under Division 5 of
Part 7.3; or
(b) in Chapter 8-an order by the Commission in force under Division 5 of
Part 8.3;
"benefit" means any benefit, whether by way of payment of cash or otherwise;
"Board" means:
(a) in Part 3.6 or 3.7-the Accounting Standards Review Board;
(b) in Part 7.10-the board of SEGC; or
(c) in Part 9.2-the Companies Auditors and Liquidators Disciplinary
Board; "board", in relation to a body corporate, means the committee of
management, board of directors, council or other governing authority of the
body corporate;
"body" includes a society or association;
"body corporate" includes:
(a) a foreign company; and
(b) a body corporate or foreign company that is being wound up or has been
dissolved;
"books" includes:
(a) a register;
(b) any other record of information;
(c) accounts or accounting records, however compiled, recorded or stored;
and
(d) a document;
"borrowing corporation" means a body corporate that is or will be under a
liability to repay any money received or to be received by it in response to:
(a) an invitation to subscribe for or buy debentures of the body corporate
or an offer of debentures of the body corporate for subscription or
purchase; or (b) an offer of debentures as consideration for the
acquisition, under a takeover scheme, of shares in a body corporate;
"bought position" means:
(a) in relation to a commodity agreement, or in relation to a futures
contract, being a commodity agreement-the position of a person who, by
virtue of the agreement, is under a Chapter 8 obligation to accept
delivery in accordance with the agreement; or
(b) in relation to a futures contract, being an adjustment agreement-the
position of a person who, by virtue of the agreement:
(i) will, if the value or worth of the agreement (as determined in
accordance with the agreement) as at a particular future time
is less by a particular amount than the value or worth of the
agreement (as so determined) as at a particular earlier time,
be under a Chapter 8 obligation to pay that amount; and
(ii) will, if the value or worth of the agreement (as so determined)
as at a particular future time exceeds by a particular amount
the value or worth of the agreement (as so determined) as at a
particular earlier time, have a Chapter 8 right to receive that
amount;
"branch register" means:
(a) in relation to a company-a branch register, kept under section 214, of
members of the company; or
(b) in relation to a foreign company-except in section 351, a branch
register, kept under section 352, of members of the foreign company;
"business day" means a day that is not a Saturday, a Sunday or a public
holiday or bank holiday in the place concerned;
"buy-back arrangements", in relation to a deed relating to prescribed
interests, means arrangements made to ensure that the management company can
comply with a buy-back covenant contained in the deed;
"buy-back covenant", in relation to a deed relating to prescribed interests,
means a covenant binding the management company that it will, if asked by the
holder of a prescribed interest to which the deed relates, buy the prescribed
interest, or cause it to be bought, from the holder at a price calculated in
accordance with the deed; "Capital Territory" means the Australian Capital
Territory and the Jervis Bay Territory;
"carry on" has a meaning affected by Division 3;
"cash management trust interest" means a prescribed interest:
(a) in relation to which there is in force a deed that, for the purposes
of Division 5 of Part 7.12, is an approved deed; and
(b) that relates to an undertaking, scheme, enterprise, contract or
arrangement of the kind commonly known as a cash management trust;
"cause" includes procure;
"certified" means:
(a) in relation to a copy of, or extract from, a document-certified by a
statement in writing to be a true copy of, or extract from, the
document; or
(b) in relation to a translation of a document-certified by a statement in
writing to be a correct translation of the document into English;
"Chapter 8 agreement" means:
(a) a relevant agreement;
(b) a proposed relevant agreement;
(c) a relevant agreement as varied, or as proposed to be varied;
(d) where a relevant agreement has been varied-the relevant agreement as
in force at any time before the variation; or
(e) where a relevant agreement has been discharged-the relevant agreement
as in force at any time before its discharge;
"Chapter 8 obligation" has the meaning given by section 55;
"Chapter 8 right" has the meaning given by section 55;
"charge" means a charge created in any way and includes a mortgage and an
agreement to give or execute a charge or mortgage, whether on demand or
otherwise;
"chargee" means the holder of a charge and includes a person in whose favour a
charge is to be given or executed, whether on demand or otherwise, under an
agreement;
"class" has:
(a) in relation to futures contracts-a meaning affected by subsection 72
(3); and
(b) in relation to shares-a meaning affected by section 57;
"clearing house" means:
(a) in relation to a body corporate:
(i) in any case-a person who provides, or proposes to provide,
clearing house facilities for a futures market conducted by
that body; or
(ii) in the case of a futures exchange-a body corporate that is an
eligible corporation and in relation to which an approval as a
clearing house for that futures exchange is in force under
subsection 1131 (2); and
(b) in relation to a futures market:
(i) in any case-a person who provides, or proposes to provide,
clearing house facilities for that futures market; or
(ii) in the case of a futures market of a futures exchange-a body
corporate that is an eligible corporation and in relation to
which an approval as a clearing house for that futures exchange
is in force under subsection 1131 (2);
"clearing house facilities", in relation to a futures market, means facilities
for the registration of futures contracts acquired or disposed of on that
futures market;
"client", in relation to a futures broker, means, except in Division 2 of Part
8.3, a person on whose behalf the broker deals, or from whom the broker
accepts instructions to deal, in futures contracts;
"clients' segregated account", in relation to a person, means an account that:
(a) is maintained by the person with an Australian bank;
(b) is designated as a clients' segregated account; and
(c) does not contain money other than money deposited by the person in the
account under section 1209 or a corresponding law;
"close corporation" means a close corporation registered under the Close
Corporations Act 1989 ;
"close out", in relation to a futures contract, means:
(a) discharge the Chapter 8 obligations of the person in the bought
position, or sold position, under the futures contract as a result of
the matching up of the futures contract with a futures contract of the
same kind under which the person has assumed an offsetting
sold position, or offsetting bought position, as the case may be; or
(b) otherwise discharge the Chapter 8 obligations of a party to the
futures contract;
"commencement", in relation to an accounting standard, means the time when:
(a) in the case of an accounting standard as originally in effect-the
accounting standard took effect; or
(b) in the case of an accounting standard as varied by a particular
provision of an instrument made under subsection 283 (1)-that
provision took effect;
"Commission" means the Australian Securities Commission;
"Commission Act" means the Australian Securities Commission Act 1989;
"Commission delegate" has the same meaning as in the Commission Act;
"commodity", except in Part 4.4, means:
(a) any thing that is capable of delivery pursuant to an agreement for its
delivery; or
(b) without limiting the generality of paragraph (a), an instrument
creating or evidencing a thing in action;
"commodity agreement" means a standardised agreement the effect of which is
that:
(a) a person is under a Chapter 8 obligation to make delivery; or
(b) a person is under a Chapter 8 obligation to accept delivery;
at a particular future time of a particular quantity of a particular commodity
for a particular price or for a price to be calculated in a particular manner,
whether or not:
(c) the subject matter of the agreement is in existence;
(d) the agreement has any other effect; or
(e) the agreement is capable of being varied or discharged before that
future time;
"company" means:
(a) except in relation to a State or Territory or in Chapter 6:
(i) a company incorporated under Division 1 of Part 2.2; or
(ii) a body corporate that is a company by virtue of subsection 150
(3);
(b) in relation to a State or Territory-a body corporate that is a company
for the purposes of the company law of the State or Territory; and
(c) in Chapter 6-a body corporate that is incorporated in Australia and
has a share capital;
"company having a share capital" includes an unlimited company with a share
capital;
"company law", in relation to a State or Territory, means the law, or a
previous law, of the State or Territory relating to companies;
"company limited by guarantee" means a company formed on the principle of
having the liability of its members limited by the memorandum to the
respective amounts that the members undertake to contribute to the property of
the company if it is wound up;
"company limited by shares" means:
(a) except in relation to a State or Territory-a company; or
(b) in relation to a State or Territory-a company of the State or
Territory;
formed on the principle of having the liability of its members limited by the
memorandum to the amount (if any) unpaid on the shares respectively held by
them;
"condition", in relation to a licence, means a condition or restriction to
which the licence is subject, or will be subject, as the case requires;
"conduct":
(a) in relation to a futures market, a stock market, or any other market,
exchange, place or facility-includes maintain or provide; and
(b) in Chapter 7-has a meaning affected by section 762;
"constitution", in relation to a body corporate or an unincorporated body,
means:
(a) in the case of a company, a company of a State or Territory, or any
other body that has a memorandum and articles-the memorandum and
articles of the company or other body; or
(b) in any other case:
(i) the body's charter or memorandum; or
(ii) any other instrument or law (other than this Act or the company
law of a State or Territory) constituting, or defining the
constitution of, the body or governing activities or conduct of
the body or its members;
"contributing member", in relation to a futures organisation, means:
(a) in the case of a futures exchange-a member or member organisation of
the futures exchange; or
(b) in the case of a futures association:
(i) a member of that futures association that is a member of no
futures exchange; or
(ii) a member organisation of that futures association that is a
member organisation of no futures exchange;
"contributory" means:
(a) in relation to a company other than a no liability company:
(i) a person liable as a member or past member to contribute to the
property of the company if it is wound up;
(ii) in the case of a company having a share capital-a holder of
fully paid shares in the company; and
(iii) before the final determination of the persons who are
contributories by virtue of subparagraphs (i) and (ii)-a person
alleged to be such a contributory;
(b) in relation to a body corporate to which Part 5.7 applies:
(i) a person who is a contributory by virtue of section 586; and
(ii) before the final determination of the persons who are
contributories by virtue of that section-a person alleged to be
such a contributory; and
(c) in relation to a no liability company-subject to section 385, a member
of the company;
"convertible note" has the same meaning as in Division 3A of Part III of the
Income Tax Assessment Act 1936;
"corporation" means:
(a) a foreign corporation;
(b) a trading corporation;
(c) a body corporate that is incorporated in a Territory or in an
excluded Territory;
(d) a banking corporation;
(e) an insurance corporation;
(f) a company or a close corporation; or
(g) a holding company of a body corporate of a kind referred to in
paragraph (a), (b), (c), (d), (e) or (f);
"corresponding", in relation to a law, has the meaning given by section 58;
"Court" means the Federal Court of Australia or the Supreme Court of a State
or Territory;
"creditors' voluntary winding up" means a winding up under Part 5.5, other
than a members' voluntary winding up; "daily newspaper" means a newspaper
that is ordinarily published on each day that is a business day in the place
where the newspaper is published, whether or not the newspaper is ordinarily
published on other days;
"deadline", in relation to a financial year of a company, means:
(a) if, before the end of the period within which section 245 requires the
company to hold an annual general meeting in relation to that
financial year, the company so holds an annual general meeting notice
of which was sent, at least 14 days before the last day of that
period, to persons entitled to receive notice of general meetings of
the company:
(i) if notice of the meeting was so sent at least 14 days before
the day of the meeting-the end of the fourteenth day before
that day; or
(ii) otherwise-the time when notice of the meeting was so sent; or
(b) otherwise-the end of the fourteenth day before the last day of the
period within which section 245 requires the company to hold an
annual general meeting in relation to that financial year;
"deal":
(a) in relation to a futures contract-has the meaning given by Division 4;
(b) in relation to securities-subject to subsection 93 (4), means
(whether as principal or agent) acquire, dispose of, subscribe for or
underwrite the securities, or make or offer to make, or induce or
attempt to induce a person to make or to offer to make, an agreement:
(i) for or with respect to acquiring, disposing of, subscribing for
or underwriting the securities; or
(ii) the purpose or purported purpose of which is to secure a profit
or gain to a person who acquires, disposes of, subscribes for
or underwrites the securities or to any of the parties to the
agreement in relation to the securities;
"dealer" means:
(a) a person who carries on a securities business; or
(b) 2 or more persons who together carry on a securities business;
"dealers licence" means a dealers licence granted under Part 7.3;
"debenture", in relation to a body corporate, means a document issued by the
body that evidences or acknowledges indebtedness of the body in respect of
money that is or may be deposited with or lent to the body, whether
constituting a charge on property of the body or not, other than:
(a) a document acknowledging a debt incurred by a body corporate:
(i) in the ordinary course of carrying on so much of a business as
neither comprises, nor forms part of, a business of borrowing
money and providing finance; and
(ii) in respect of money that is or may be deposited with or lent to
the body by a person in the ordinary course of a business
carried on by the person;
(b) a document that merely acknowledges the receipt of money by a
corporation where, in respect of the money, the corporation issues, in
compliance with section 1023, a document prescribed by subsection 1023
(2) and complies with the other requirements of that section;
(c) a document issued by an Australian bank in the ordinary course of its
banking business that evidences or acknowledges indebtedness of the
bank arising in the ordinary course of that business;
(d) a cheque, order for the payment of money or bill of exchange;
(e) a promissory note having a face value of not less than $50,000; or
(f) for the purposes of the application of this definition to a provision
in respect of which the regulations provide that the word "debenture" does not
include a prescribed document or a document in a prescribed class of
documents-that document or a document in that class, as the case may be;
and includes a unit of a debenture;
"deed" includes an instrument having the effect of a deed and, in relation to
prescribed interests, includes an instrument amending or affecting the deed
concerned;
"defalcation", in Part 7.9, includes a contravention of subsection 870 (3);
"director" has the meaning given by section 60;
"discretionary account" has the meaning given by section 61;
"dispose of":
(a) in relation to a futures contract-has the meaning given by sections
24 , 26, 27 and 28;
(b) in relation to shares-has, in Chapter 6, the meaning given by
subsection 51 (2); or
(c) in relation to marketable securities within the meaning of Chapter
6-has, in Chapter 6, the meaning given by subsection 51 (2) as
applying by virtue of section 605;
"Division 1 company" means a company incorporated under Division 1 of Part
2.2;
"Division 2 company" means a body corporate that, because of its registration
under Division 2 of Part 2.2, is a company by virtue of subsection 150 (3);
"Division 2 or 3 company" means a Division 2 company or a Division 3 company;
"Division 3 company" means a body corporate that, because of its registration
under Division 3 of Part 2.2, is a company by virtue of subsection 150 (3);
"Division 4 company" means a body corporate that, because of its registration
under Division 4 of Part 2.2, is a company by virtue of subsection 150 (3);
"document" includes:
(a) any paper or other material on which there is writing or printing or
on which there are marks, figures, symbols or perforations having a
meaning for persons qualified to interpret them;
(b) a disc, tape or other article from which sounds, images or messages
are capable of being reproduced; and
(c) a disc, tape or other article, or any material, from which sounds,
images, writings or messages are capable of being reproduced with or
without the aid of any other article or device;
and without limiting the generality of the foregoing, includes any summons,
order and other legal process and any notice;
"document of title", in relation to securities, includes an instrument of
transfer relating to the securities;
"dormant", in relation to a body corporate, has the meaning given by section
62 ;
"eligible circumstances" has the meaning given by section 63;
"eligible commodity agreement" means a commodity agreement (in this
definition called the "relevant agreement"), where, at the time when the
relevant agreement:
(a) unless paragraph (b) applies-is entered into; or
(b) if the relevant agreement is not a commodity agreement at the time
when it is entered into-becomes a commodity agreement;
it appears likely, having regard to all relevant circumstances (other than the
respective intentions of the person in the sold position, and the person in
the bought position, under the relevant agreement), including, without
limiting the generality of the foregoing:
(c) the provisions of any agreement;
(d) the rules and practices of any market; and
(e) the manner in which the respective Chapter 8 obligations of persons in
sold positions, and persons in bought positions, under agreements of
the same kind as the first-mentioned agreement are generally
discharged;
that:
(f) the Chapter 8 obligation of the person in the sold position under the
relevant agreement to make delivery in accordance with the
relevant agreement will be discharged otherwise than by the person so
making delivery;
(g) the Chapter 8 obligation of the person in the bought position under
the relevant agreement to accept delivery in accordance with the
relevant agreement will be discharged otherwise than by the person so
accepting delivery; or
(h) the person in the sold position, or bought position, under the
relevant agreement will assume an offsetting bought position, or
offsetting sold position, as the case may be, under an agreement of
the same kind as the relevant agreement;
"eligible communications service" means a postal, telegraphic, telephonic or
other like service, within the meaning of paragraph 51 (5) of the
Constitution;
"eligible corporation" means a foreign corporation or a trading corporation;
"eligible exchange-traded option" means a contract that is entered into on a
futures market of a futures exchange and under which a party acquires from
another party an option or right, exercisable at or before a specified time:
(a) to purchase from, or to sell to, that other party a specified quantity
of a specified commodity at a price specified in, or to be determined
in accordance with, the contract; or
(b) to be paid by that other party an amount of money to be determined by
reference to the amount by which a specified number is greater or less
than the number of a specified index, being the Australian
Stock Exchanges All Ordinaries Price Index or a prescribed index, as
at the time when the option or right is exercised;
"eligible futures advice business" has the meaning given by section 71;
"eligible futures adviser" means:
(a) a corporation that holds a futures advisers licence, or is an exempt
futures adviser by virtue of subsection 67 (1);
(b) a person, in so far as the person carries on a futures advice business
in a capacity referred to in any of paragraphs 67 (4) (a) to (g),
inclusive; or
(c) a prescribed person, in so far as is prescribed;
"eligible futures broker" means:
(a) a corporation that holds a futures brokers licence, or is an exempt
futures broker by virtue of subsection 67 (1);
(b) a person, in so far as the person carries on a futures broking
business in a capacity referred to in any of paragraphs 67 (4) (a) to
(g), inclusive; or
(c) a prescribed person, in so far as is prescribed;
"eligible futures broking business" means, subject to subsection 25 (4):
(a) a business of dealing in futures contracts on behalf of corporations;
or
(b) a business of dealing in futures contracts, in eligible circumstances,
on behalf of other persons;
"eligible futures conduct" means conduct in the course of, for the purposes
of, or otherwise in connection with:
(a) if the person who engages in, or proposes, or represents that the
person proposes, to engage in, the conduct is a corporation:
(i) dealing in futures contracts;
(ii) advising a person about futures contracts; or
(iii) giving to a person a futures report; or
(b) in any other case, but without prejudice to the effect of this
definition by virtue of paragraph (a):
(i) dealing in futures contracts on behalf of a corporation;
(ii) dealing in futures contracts in eligible circumstances;
(iii) advising a corporation, or giving to a corporation an analysis
or report, about futures contracts; or
(iv) doing in eligible circumstances any of the following:
(A) advising a person about futures contracts;
(B) giving to a person a futures report;
"eligible futures contract" means a futures contract acquired, or to be
acquired, in eligible circumstances or on an eligible futures market;
"eligible futures market" means:
(a) a futures market conducted by a corporation; or
(b) a futures market, in so far as it is conducted in eligible
circumstances;
"eligible investment advice business" has the meaning given by section 77;
"eligible money market dealer" means a body corporate in respect of which a
declaration is in force under paragraph 65 (1) (a);
"eligible negotiable instrument", in relation to a body corporate, means:
(a) a bill of exchange, promissory note, cheque or other negotiable
instrument;
(b) an indorsement on, or order in, a bill of exchange, promissory note,
cheque or other negotiable instrument; or
(c) a letter of credit;
of, or purporting to be issued or signed by or on behalf of, the body;
"eligible securities" means:
(a) debentures, stocks or bonds issued or proposed to be issued by the
Commonwealth or an authority of the Commonwealth or by the Government
of a Territory or of a foreign country or an authority of such a
Government;
(b) shares in, debentures of, or prescribed interests made available by, a
corporation;
(c) a contract under which a party acquires from another party an option
or right, exercisable at or before a specified time, to buy from, or
to sell to, that other party a number of specified securities of a
kind mentioned in paragraph (a) or (b), at a price specified in, or to
be determined in accordance with, the contract; or
(d) a contract that is entered into on a stock market of a securities
exchange within the meaning of Chapter 7 or on an exempt stock market
and under which a party acquires from another party an option or
right, exercisable at or before a specified time, to buy from, or to
sell to, that other party an amount of a specified foreign currency at
a price specified in, or to be determined in accordance with, the
contract;
but does not include a futures contract or an excluded security;
"eligible securities business" has the meaning given by section 93;
"eligible securities conduct" means conduct in the course of, for the purposes
of, or otherwise in connection with:
(a) if the person who engages in, or proposes, or represents that the
person proposes, to engage in, the conduct is a corporation:
(i) dealing in securities;
(ii) advising a person about securities; or
(iii) giving to a person a securities report; or
(b) in any other case, but without prejudice to the effect of this
definition by virtue of paragraph (a):
(i) dealing in eligible securities;
(ii) dealing in securities on behalf of a corporation;
(iii) dealing in securities in eligible circumstances;
(iv) advising a person, or giving to a person an analysis or report,
about eligible securities;
(v) advising a corporation, or giving to a corporation an analysis
or report, about securities; or
(vi) doing in eligible circumstances any of the following:
(A) advising a person about securities;
(B) giving to a person a securities report;
"emoluments" means the amount or value of any money, consideration or benefit
given, directly or indirectly, to a director of a body corporate in connection
with the management of affairs of the body or of any holding company or
subsidiary of the body, whether as a director or otherwise, but does not
include amounts in payment or reimbursement of out-of-pocket expenses incurred
for the benefit of the body;
"enter into":
(a) in relation to a futures contract-has a meaning affected by
subsection 72 (2);
(b) in relation to a transaction, in relation to shares or securities,
has, in section 51 and Chapter 6, the meaning given by section 64;
"event" includes any happening, circumstance or state of affairs;
"Exchange" means Australian Stock Exchange Limited;
"exchange member", in relation to a futures exchange, means:
(a) a corporation that is a member of the futures exchange;
(b) a partnership that is a member of the futures exchange; or
(c) a member of such a partnership;
"Exchange subsidiary", in Chapter 6 or 7, means a securities exchange or
stock exchange within the meaning of that Chapter that is a subsidiary of the
Exchange; EXCLUDED
"excluded corporation" has the meaning given by section 65;
"excluded invitation", in relation to securities, has the meaning given by
subsection 66 (3);
"excluded issue", in relation to securities, has the meaning given by
subsection 66 (2);
"excluded offer", in relation to securities, has the meaning given by
subsection 66 (3);
"excluded security" means:
(a) where:
(i) there is attached to a share or debenture a right to
participate in a retirement village scheme; and
(ii) each of the other rights, and each interest (if any), attached
to the share or debenture is a right or interest that is merely
incidental to the right referred to in subparagraph (i);
the share or debenture or a unit in the share or debenture; or
(b) a prescribed interest constituted by a right to participate in a
retirement village scheme;
"excluded Territory" means an external Territory to which this Act does not
extend;
"executive officer", in relation to a body corporate, means a person, by
whatever name called and whether or not a director of the body, who is
concerned, or takes part, in the body's management and, in the case of a close
corporation, includes a member of the body; EXEMPT
"exempt broker" means a person who is an exempt broker by virtue of section
67 ;
"exempt dealer" has the meaning given by section 68;
"exempt foreign company" means a foreign company of a kind referred to in
subsection 349 (8), whether or not Division 2 of Part 4.1 applies to it;
"exempt futures market" means a futures market in relation to which a
declaration under section 1127 is in force;
"exempt investment adviser" has the meaning given by section 68;
"exempt proprietary company" has the meaning given by section 69;
"exempt public authority" means a body corporate that is incorporated within
Australia and is a public authority or an authority of the Crown in right of
the Commonwealth or of a State, Territory or excluded Territory;
"exempt stock market" means a stock market in relation to which, or a stock
market in a class of stock markets in relation to which, a declaration is in
force under section 771;
"expert", in relation to a matter, means a person whose profession or
reputation gives authority to a statement made by him or her in relation to
that matter;
"extend", in relation to a period:
(a) includes further extend; and
(b) has a meaning affected by section 70;
"externally-administered body corporate" means a body corporate:
(a) that is being wound up;
(b) in respect of property of which a receiver, or a receiver and manager,
has been appointed (whether or not by a court) and is acting;
(c) that is under official management; or
(d) that has entered into a compromise or arrangement with another person
the administration of which has not been concluded; "fidelity fund" means:
(a) in relation to a futures organisation-the fidelity fund (if any) that
section 1228 requires the futures organisation to keep; or
(b) in relation to a securities exchange within the meaning of Chapter
7-the fidelity fund (if any) that section 895 requires or required the
securities exchange to keep;
"financial corporation" means a financial corporation within the meaning of
paragraph 51 (20) of the Constitution;
"financial statements", in relation to a financial year of a body corporate,
means the accounts, and the group accounts (if any), of the body required by
Part 3.6 or a corresponding law to be made out in relation to that financial
year;
"financial year", in relation to a body corporate, means any of the following,
whether ending before, at or after the commencement of this section:
(a) if the body is a company-a period of 12 months, or such other period
(whether longer or shorter that 12 months) of not more than 18 months
as the directors (subject to the requirements of section 245 as to the
holding of annual general meetings of the body) resolve (even if at
the time of the resolution the body is not a company), beginning:
(i) if there has been no previous financial year of the body-on the
day of the body's incorporation; or
(ii) otherwise-at the end of the previous financial year of the
body;
(b) if the body has been, but is no longer, a company-a period that:
(i) ended at a time when the body was a company; and
(ii) was a financial year of the body for the purposes of this Act
as in force at that time;
(c) if the body is a close corporation-a period that is a financial year
of the body for the purposes of the Close Corporations Act 1989;
(d) if the body has been, but is no longer, a close corporation-a period
that:
(i) ended at a time when the body was a close corporation; and
(ii) was a financial year of the body for the purposes of the Close
Corporations Act 1989 as in force at that time;
(e) in any case-a period that:
(i) ended at a time when the body was not a company but was a
company of a State or Territory; and
(ii) was a financial year of the body for the purposes of the
company law of that State or Territory as in force at that
time; or
(f) in any case-a period that:
(i) ended at a time when the body was neither a company nor a
company of a State or Territory; and
(ii) in respect of which a profit and loss account of the body was
made out, or was required by the law of the body's
incorporation as at that time to be made out;
and, in relation to a deed within the meaning of Division 5 of Part 7.12,
means the 12 months ending on 30 June or on such other day as the deed
specifies instead of 30 June;
"floating charge" includes a charge that conferred a floating security at the
time of its creation but has since become a fixed or specific charge;
"foreign companies law", in relation to a State, Territory or excluded
Territory, means the law, or a previous law, of that State, Territory or
excluded Territory relating to foreign companies within the meaning of that
law or previous law;
"foreign company" means:
(a) a foreign corporation;
(b) a body corporate incorporated in an excluded Territory; or
(c) an unincorporated body that:
(i) is formed in an excluded Territory or outside Australia and the
external Territories;
(ii) under the law of its place of formation, may sue or be sued, or
may hold property in the name of its secretary or of an officer
of the body duly appointed for that purpose; and
(iii) does not have its head office or principal place of business in
Australia;
but does not include a corporation sole or an exempt public authority;
"foreign corporation" means a foreign corporation within the meaning of
paragraph 51 (20) of the Constitution;
"function" includes a duty;
"Fund" means the National Guarantee Fund established under subsection 929 (1);
FUTURES
"futures advice business" has the meaning given by section 71;
"futures adviser" means a person who carries on, or 2 or more persons who
together carry on, a futures advice business;
"futures advisers licence" means a futures advisers licence granted under Part
8.3;
"futures association" means a body corporate:
(a) that is an eligible corporation; and
(b) in relation to which an approval under section 1132 is in force;
"futures broker" means:
(a) except in Parts 8.4 and 8.5:
(i) a person who carries on, or 2 or more persons who together
carry on, a futures broking business, whether or not the
person, or any of the persons, also deals in futures contracts
on the person's own account; or
(ii) the holder of a futures brokers licence; and
(b) in Part 8.4 or 8.5-a corporation that holds a futures brokers
licence; "futures brokers licence" means a futures brokers licence granted
under Part 8.3;
"futures broking business", in relation to a person, means, subject to
subsection 25 (4), a business of dealing in futures contracts on behalf of
other persons;
"futures contract" has the meaning given by section 72;
"futures exchange" means a body corporate:
(a) that is an eligible corporation; and
(b) in relation to which an approval under section 1126 is in force;
"futures law" means a provision of, or a law corresponding to a provision of,
Chapter 8;
"futures licence" means a futures brokers licence or a futures advisers
licence;
"futures licensee" means a person who holds a futures licence;
"futures market" means a market, exchange or other place at which, or a
facility by means of which, futures contracts are regularly acquired or
disposed of;
"futures option" means an option or Chapter 8 right to assume, at a specified
price or value and within a specified period, a bought position, or a
sold position, in relation to an eligible commodity agreement or in relation
to an adjustment agreement;
"futures organisation" means:
(a) except in Part 8.6-a futures exchange or a futures association; or
(b) in Part 8.6:
(i) a futures exchange; or
(ii) a futures association, other than a futures association each of
whose members is also a member of a futures exchange;
"futures report" means an analysis or report about futures contracts;
"futures representative" has the meaning given by section 73; "Gazette
notice" means a notice published in the Gazette;
"group", in relation to a company that is a group holding company at the end
of a financial year, means all of the following:
(a) the company;
(b) its subsidiaries as at the end of that financial year;
"group accounts", in relation to a body corporate, means, if the body is a
group holding company at the end of the financial year concerned:
(a) a set of consolidated accounts for the group;
(b) 2 or more sets of consolidated accounts together covering the group;
(c) separate accounts for each body corporate in the group; or
(d) the combination of one or more sets of consolidated accounts, and one
or more sets of separate accounts, together covering the group;
"group holding company" has the meaning given by section 74;
"guarantor body", in relation to a borrowing corporation, means a body
corporate that has guaranteed, or has agreed to guarantee, the repayment of
any money received or to be received by the borrowing corporation in response
to:
(a) an invitation to subscribe for or buy debentures of the borrowing
corporation or an offer of debentures of the borrowing corporation for
subscription or purchase; or
(b) an offer of debentures as consideration for the acquisition, under a
takeover scheme, of shares in a body corporate;
"have", in relation to information, includes be in possession of the
information;
"hold", in relation to a person, in relation to a document that is, or
purports to be, a copy of a licence, means have in the person's possession;
"holding company" means:
(a) in relation to a body corporate-a body corporate of which the
first-mentioned body is a subsidiary by virtue of Division 6; or
(b) in Part 3.6 or 3.7-a company of which some body corporate is a
subsidiary by virtue of Division 6 of this Part;
"included", in relation to an official list, has the meaning given by
section 75;
"incorporate", except in section 112, includes form;
"incorporated in Australia" has a meaning affected by section 76;
"industrial instrument" means:
(a) a contract of employment; or
(b) a law, award, determination or agreement relating to terms or
conditions of employment;
"information" includes complaint;
"information service" means:
(a) a broadcasting service;
(b) an interactive or broadcast videotext or teletext service or a similar
service;
(c) an online database service or a similar service; or
(d) any other prescribed service;
"injury compensation" means compensation payable under any law relating to
workers compensation;
"inside information", in relation to a futures contract, means information
that is not generally available but, if it were generally available, would be
likely to affect materially the price for dealing in:
(a) that futures contract; or
(b) a futures contract of the same kind as that futures contract;
"insolvent under administration" means a person who:
(a) under the Bankruptcy Act 1966 or the law of an external Territory, is
a bankrupt in respect of a bankruptcy from which the person has not
been discharged; or
(b) under the law of a country other than Australia or the law of an
external Territory, has the status of an undischarged bankrupt;
and includes:
(c) a person who has executed a deed of arrangement under Part X of the
Bankruptcy Act 1966 or the corresponding provisions of the law of an
external Territory or of the law of a country other than Australia,
where the terms of the deed have not been fully complied with; and
(d) a person whose creditors have accepted a composition under Part X of
the Bankruptcy Act 1966 or the corresponding provisions of the law of
an external Territory or of the law of a country other than Australia
where a final payment has not been made under that composition;
"insurance corporation" means a body corporate that carries on, as its sole or
principal business, insurance (other than State insurance not extending beyond
the limits of the State concerned);
"interstate", in relation to carrying on business, has the meaning given by
section 22;
"invalid futures authority" has the meaning given by subsection 87 (2);
"invalid securities authority" has the meaning given by subsection 88 (2);
"investment advice business" has the meaning given by section 77;
"investment adviser" means a person who carries on, or 2 or more persons who
together carry on, an investment advice business;
"investment advisers licence" means an investment advisers licence granted
under Part 7.3;
"investment contract" means any contract, scheme or arrangement that, in
substance and irrespective of its form, involves the investment of money in or
under such circumstances that the investor acquires or may acquire an interest
in, or right in respect of, property, whether in Australia or elsewhere, that,
under, or in accordance with, the terms of investment will, or may at the
option of the investor, be used or employed in common with any other interest
in, or right in respect of, property, whether in Australia or elsewhere,
acquired in or under like circumstances;
"involved", in relation to a contravention, has the meaning given by section
79 ;
"issue" includes:
(a) in relation to prescribed interests-make available; and
(b) otherwise-circulate, distribute and disseminate;
"Judge" means a judge of the Court;
"law", in relation to a State or Territory, means, subject to section 58, a
law of, or a law in force in, the State or Territory;
"lawyer" means a duly qualified legal practitioner and, in relation to a
person, means such a practitioner acting for the person;
"leave of absence" means long service leave, extended leave, recreation leave,
annual leave, sick leave or any other form of leave of absence from
employment;
"licence" means:
(a) in Chapter 7-a securities licence; or
(b) in Chapter 8-a futures licence;
"licensee" means:
(a) in Chapter 7-a securities licensee;
(b) in Chapter 8-a futures licensee; or
(c) in relation to a licence-the person who holds the licence;
"limited company" means a company limited by shares, a company limited by
guarantee or a company limited both by shares and by guarantee, but does not
include a no liability company;
"liquidating trade" means a transaction whereby, for the purpose of closing
out a futures contract, the person in the bought position, or sold position,
under the futures contract assumes an offsetting sold position, or offsetting
bought position, as the case may be, under another futures contract;
"liquidator", in sections 475, 531, 532 and 535 to 540, inclusive, and in
Chapters 7 and 8, includes a provisional liquidator;
"listed corporation" means a body corporate that is included in an official
list of a securities exchange in Australia or an external Territory;
"listing rules" has:
(a) in Chapter 6-the meaning given by section 603; or
(b) in Chapter 7-the meaning given by section 761;
"local agent", in relation to a foreign company, means a person who is a
local agent of the foreign company by virtue of subsection 346 (5);
"lodge" means lodge with the Commission; "machine-copy", in relation to a
document, means a copy made of the document by any machine in which, or
process by which, an image of the contents of the document is reproduced from
surface contact with the document or by the use of photo-sensitive material
other than transparent photographic film;
"management company", in relation to any prescribed interests made available
or proposed to be made available or in relation to any deed that relates to
prescribed interests made available or proposed to be made available, means
the corporation by or on behalf of which the prescribed interests have been or
are proposed to be made available, and includes any person for the time being
exercising the functions of the management company;
"manager" has a meaning affected by section 90;
"marketable securities" means debentures, stocks, shares or bonds of any
Government, of any local government authority or of any corporation,
association or society, and includes any right or option in respect of shares
in any corporation and any prescribed interest;
"member":
(a) in relation to a securities exchange or stock exchange within the
meaning of the provision where the expression occurs-means, except in
paragraph (a) of the definition of "member organisation", a person who is, or
who is a partner in, a member organisation of the securities exchange; or
(b) in relation to a body corporate that is, or proposes to become, a
futures organisation-has a meaning affected by section 56;
"member firm", in relation to a securities exchange within the meaning of
Chapter 7, means a partnership that is a member organisation of the securities
exchange;
"member organisation" means:
(a) in relation to a securities exchange or stock exchange within the
meaning of the provision where the expression occurs:
(i) a member of the securities exchange who carries on a business
of dealing in securities otherwise than in partnership; or
(ii) a partnership that the securities exchange recognises as a
member organisation or member firm and that carries on a
business of dealing in securities; and
(b) in relation to a futures organisation:
(i) a member of the futures organisation that carries on a business
of dealing in futures contracts otherwise than in partnership;
or
(ii) a partnership that the futures organisation recognises as a
member organisation, that carries on a business of dealing in
futures contracts and each partner in which is a member of some
futures organisation;
"members' voluntary winding up" means a winding up under Part 5.5 where a
declaration has been made and lodged pursuant to section 494;
"memorandum" means memorandum of association;
"minerals" means minerals in any form, whether solid, liquefied or gaseous and
whether organic or inorganic;
"minimum subscription", in relation to any shares offered to the public for
subscription or for which the public are invited to subscribe, means the
amount stated in the prospectus relating to the offer or invitation under
section 1035 as the minimum amount that, in the opinion of the directors, must
be raised by the issue of the shares;
"mining company" means a company:
(a) whose memorandum contains a provision stating the objects of the
company; and
(b) whose sole objects are mining purposes;
"mining purposes" means any or all of the following purposes:
(a) prospecting for ores, metals or minerals;
(b) obtaining, by any mode or method, ores, metals or minerals;
(c) the sale or other disposal of ores, metals, minerals or other products
of mining;
(d) the carrying on of any business or activity necessary for, or
incidental to, any of the foregoing purposes;
whether in Australia or elsewhere, but does not include quarrying operations
for the sole purpose of obtaining stone for building, roadmaking or similar
purposes;
"Minister", in relation to a State, means:
(a) in the case of the Northern Territory-a person holding Ministerial
office within the meaning of the
Northern Territory (Self-Government) Act 1978 ; or
(b) in any other case-a Minister of the Crown of that State;
"Ministerial Council" means the Ministerial Council for Companies and
Securities established by the Agreement made on 22 December 1978 between the
Commonwealth and the States a copy of which is set out in the Schedule to the
National Companies and Securities Commission Act 1979, being that agreement as
amended or affected by any other agreement;
"modifications" includes additions, omissions and substitutions;
"money" includes a payment order; "NCSC" means the National Companies and
Securities Commission;
"negative", in relation to a document, means a transparent negative photograph
used, or intended to be used, as a medium for reproducing the contents of the
document, and includes a transparent photograph made from surface contact with
the original negative photograph;
"new company" has the meaning given by section 81;
"no liability company" means a company that does not have under its
constitution a contractual right to recover calls made on its shares from a
shareholder who defaults in payment of those calls;
"nominee corporation" means a body corporate whose principal business is the
business of holding marketable securities as a trustee or nominee;
"non-broker" means a person who is neither a futures broker nor one of 2 or
more persons who together constitute a futures broker;
"non-dealer" means a person who is neither a dealer nor one of 2 or more
persons who together constitute a dealer;
"non-voting share", in relation to a body corporate, means an issued share in
the body that is not a voting share in the body;
"notice" includes a circular and an advertisement;
"NSEGC" means the National Securities Exchanges Guarantee Corporation referred
to in a law corresponding to Part 7.10;
"oath" includes affirmation;
"of", in relation to securities, means, in the case of prescribed interests,
made available by;
"offence" means an offence against a law of the Commonwealth or a State or
Territory;
"officer", in relation to a body corporate, includes:
(a) a director, secretary, executive officer or employee of the body;
(b) a receiver and manager, appointed under a power contained in an
instrument, of property of the body;
(c) an official manager, or deputy official manager, of the body;
(d) a liquidator of the body appointed in a voluntary winding up of the
body;
(e) a trustee or other person administering a compromise or arrangement
made between the body and any other person or persons; and
(f) in the case of a close corporation-a member of the body;
but does not include:
(g) a receiver who is not also a manager;
(h) a receiver and manager appointed by a court; or
(j) a liquidator appointed by a court;
"official liquidator" means a person registered as an official liquidator
under section 1283 or deemed to be registered as an official liquidator under
this Act;
"official manager" means a person appointed as an official manager under Part
5.3;
"on", in relation to a stock market or futures market, includes at or by means
of;
"on behalf of" includes on the instructions of;
"open", in relation to the registered office of a body corporate, means open
and accessible to the public;
"option contract", in Chapter 7, means:
(a) a contract under which a party acquires from another party an option
or right, exercisable at or before a specified time, to buy from, or
to sell to, that other party a number of specified securities, or of a
specified class of securities, being:
(i) debentures, stocks or bonds issued or proposed to be issued by
a government or an authority of a government; or
(ii) shares in, debentures of, or prescribed interests made
available by, a body corporate;
at a price specified in, or to be determined in accordance with, the contract;
or
(b) a contract entered into on a stock market of a securities exchange
within the meaning of Chapter 7 or on an exempt stock market, being a
contract under which a party to the contract acquires from another
party to the contract an option or right, exercisable at or before a
specified time:
(i) to buy from, or to sell to, that other party an amount of a
specified foreign currency, or a quantity of a specified
commodity, at a price specified in, or to be determined in
accordance with, the contract; or
(ii) to be paid by that other party an amount of money to be
determined by reference to the amount by which a specified
number is greater or less than the number of a specified index,
being the Australian Stock Exchanges All Ordinaries Price Index
or a prescribed index, as at the time when the option or right
is exercised;
"own account" has:
(a) in relation to a person dealing in a futures contract-a meaning
affected by section 29; or
(b) in relation to a person dealing in, or entering into a transaction in
relation to, securities-a meaning affected by section 84; "paid up", in Part
4.3, includes credited as paid up;
"Part 5.1 body" means:
(a) a company;
(b) a registered Australian corporation; or
(c) a foreign corporation that is a registered foreign company;
"Part 5.7 body" means a Type A body or Type B body;
"participation interest" means any right to participate, or any interest:
(a) in any profits, assets or realisation of any financial or business
undertaking or scheme whether in Australia or elsewhere;
(b) in any common enterprise, whether in Australia or elsewhere, in
relation to which the holder of the right or interest is led to expect
profits, rent or interest from the efforts of the promoter of the
enterprise or a third party; or
(c) in any investment contract;
whether or not the right or interest is enforceable, whether the right or
interest is actual, prospective or contingent, whether or not the right or
interest is evidenced by a formal document and whether or not the right or
interest relates to a physical asset, but does not include:
(d) such a right that is a right to participate in a time-sharing scheme;
(e) any share in, unit of a share in, or debenture of, a body corporate;
(f) any interest in, or arising out of, a policy of life insurance;
(g) an interest in a partnership agreement, unless the agreement or
proposed agreement:
(i) relates to an undertaking, scheme, enterprise or investment
contract promoted by or on behalf of a person whose ordinary
business is or includes the promotion of similar undertakings,
schemes, enterprises or investment contracts, whether or not
that person is, or is to become, a party to the agreement or
proposed agreement; or
(ii) subject to section 85, is or would be an agreement, or is or
would be within a class of agreements, prescribed by the
regulations for the purposes of this paragraph;
(h) a cheque, order for the payment of money, bill of exchange or
promissory note;
(j) a document issued or executed by an Australian bank in the ordinary
course of its banking business, being a document that evidences or
acknowledges indebtedness of the bank arising in the ordinary course
of that business; or
(k) a document that is not a debenture by virtue of paragraph (a) or (f)
of the definition of "debenture" in this section;
"party", in relation to a Chapter 8 agreement, means, in the case of a
proposed or discharged relevant agreement, a person who would be a party to
the relevant agreement if it were in effect;
"payment order" means a cheque, bank cheque, bank draft, money order or postal
order;
"place of origin" means:
(a) in relation to a registrable Australian corporation-the State or
Territory in which the corporation is incorporated; or
(b) in relation to a foreign company or a Part 5.7 body-the place of
incorporation of the foreign company or Part 5.7 body;
"possession" has a meaning affected by section 86;
"power" includes an authority;
"premises" includes:
(a) a structure, building, aircraft, vehicle or vessel;
(b) any land or place (whether enclosed or built on or not); and
(c) a part of a structure, building, aircraft, vehicle or vessel or of
such a place;
"prescribed" means prescribed by this Act, by the regulations or by the rules;
"prescribed interest" means:
(a) a participation interest; or
(b) a right, whether enforceable or not, whether actual, prospective or
contingent and whether or not evidenced by a formal document, to
participate in a time-sharing scheme;
but does not include a right or interest, or a right or interest included in a
class or kind of rights or interests, declared by the regulations to be an
exempt right or interest, or a class or kind of exempt rights or interests,
for the purposes of Chapter 7;
"previous Fund" means the National Guarantee Fund that was established under a
law corresponding to section 929;
"price", in relation to a commodity agreement or a futures contract, or in
Chapter 8, includes any amount payable for the delivery of a commodity under
an agreement;
"principal Australian register", in relation to a foreign company, means a
branch register, kept under section 351, of members of the foreign company;
"principal executive officer", in relation to a company, means the principal
executive officer of the company for the time being, by whatever name called,
and whether or not he or she is a director;
"principal register", in relation to a company, means the register, kept under
section 209, of members of the company;
"printed" includes type-written, lithographed or reproduced by any mechanical
means;
"procure" includes cause;
"profit and loss account" includes income and expenditure account, revenue
account or any other account showing the results of the business of a person
or body for a period and, if the person or body concerned is engaged in the
development or exploration of natural resources, also includes an operations
account or any like account and a development account or any like account;
"profit or loss", in Parts 3.6 and 3.7, means:
(a) in relation to a company-the profit or loss resulting from operations
of the company; and
(b) in relation to 2 or more bodies corporate-the profit or loss resulting
from operations of those bodies;
"promoter", in relation to a prospectus issued by or in connection with a
body corporate, means a promoter of the body who was a party to the
preparation of the prospectus or of any relevant portion of the prospectus,
but does not include a person merely because of the person acting in the
proper performance of the functions attaching to the person's professional
capacity or to the person's business relationship with a promoter of the body;
"proper authority" has:
(a) in relation to a futures licensee-the meaning given by subsection 87
(1); and
(b) in relation to a securities licensee-the meaning given by subsection
88 (1);
"property" means any legal or equitable estate or interest (whether present or
future and whether vested or contingent) in real or personal property of any
description and includes a thing in action;
"proprietary company" means:
(a) except in relation to a State or Territory:
(i) a company incorporated as a proprietary company by virtue of
section 116;
(ii) a company converted into a proprietary company under
subsection 168 (1); or
(iii) a body corporate registered as a proprietary company under
subsection 129 (4) or 137 (4);
being a company that has not since ceased under section 168 or 170 to be a
proprietary company; and
(b) in relation to a State or Territory-a body corporate:
(i) that is a proprietary company for the purposes of the company
law of the State or Territory;
(ii) that has a share capital;
(iii) that has under its constitution a contractual right to recover
calls made on its shares from a shareholder who defaults in
payment of those calls; and
(iv) whose constitution contains proprietary company provisions;
"proprietary company provisions" means the restrictions, limitations and
prohibitions that section 116 requires to be included in the constitution of a
company that may be incorporated as a proprietary company;
"prospectus", in relation to securities of a corporation, means a written
notice or other instrument:
(a) inviting applications or offers to subscribe for or buy the
securities; or
(b) offering the securities for subscription or purchase;
"prove" includes establish in any way;
"public company" means:
(a) except in relation to a State or Territory-a company other than a
proprietary company; and
(b) in relation to a State or Territory-a company, other than a
proprietary company, of the State or Territory;
"public corporation" means:
(a) a public company; or
(b) in relation to a prescribed interest that relates to an undertaking,
scheme, enterprise, contract or arrangement (in this paragraph called
the
"relevant undertaking")-a body corporate, other than a public company, that:
(i) is an eligible corporation or is incorporated in a Territory or
in an excluded Territory; and
(ii) is declared by the Commission, by writing, to be a public
corporation for the purposes of Part 7.12 in relation to the
relevant undertaking or in relation to a class of undertakings,
schemes, enterprises, contracts or arrangements that includes
the relevant undertaking;
"public document", in relation to a body corporate, means a business letter,
statement of account, invoice, receipt, order for goods, order for services,
official notice or publication of, or purporting to be issued or signed by or
on behalf of, the body;
"publish":
(a) in relation to a notice-means, in Chapter 7, publish by any means,
including in a newspaper or periodical, by broadcasting or televising
or in a cinematograph film; and
(b) in any case-includes issue;
"qualified privilege" has the meaning given by section 89;
"quarter day" means 31 March, 30 June, 30 September or 31 December;
"quotation", in relation to securities, in relation to a stock market of a
securities exchange, or of a stock exchange, within the meaning of the
provision where the expression occurs, includes the displaying or providing,
on a stock market of the securities exchange or stock exchange, of information
concerning:
(a) if offers to sell, purchase or exchange the securities at particular
prices, or for particular consideration, are made or accepted on that
stock market-those prices or that consideration;
(b) if offers or invitations are made on that stock market, being offers
or invitations that are intended, or may reasonably be expected, to
result in the making or acceptance of offers to sell, purchase or
exchange the securities at particular prices, or for particular
consideration-those prices or that consideration; or
(c) in any case-the price at which, or the consideration for which,
particular persons, or particular classes of persons, propose, or may
reasonably be expected, to sell, purchase or exchange the securities;
"receiver and manager" has a meaning affected by section 90;
"recognised futures exchange" means a body corporate that:
(a) conducts a futures market outside Australia; and
(b) is prescribed for the purposes of this definition;
"register" means:
(a) in relation to a name-register under Part 4.2;
(b) otherwise-register under this Act; REGISTERED
"registered Australian corporation" means a registrable Australian corporation
that is registered under Division 1 of Part 4.1;
"registered body" means a registered Australian corporation or a registered
foreign company;
"registered company auditor" means a person registered as an auditor, or
deemed to be registered as an auditor, under this Act and, in relation to a
body corporate that is not a company, includes a person qualified to act as
the body's auditor under the law of the body's incorporation;
"registered foreign company" means a foreign company that is registered under
Division 2 of Part 4.1;
"registered liquidator" means a person registered as a liquidator under
subsection 1282 (1) or (2) or deemed to be registered as a liquidator under
this Act;
"registered office", in relation to a body corporate, means the body's
registered office under:
(a) in the case of a company- section 217; or
(b) in the case of a registered body- section 359;
"registrable Australian corporation" means a corporation incorporated in a
State or Territory, but does not include:
(a) a company of that State or Territory;
(b) an exempt public authority; or
(c) a corporation sole;
"registrable body" means a registrable Australian corporation or a foreign
company;
"registration application", in relation to a company, means the application
that the Commission registered in the course of registering the company under
Division 1, 2, 3 or 4, as the case requires, of Part 2.2;
"registration day" means:
(a) in relation to a Division 1 company-the day specified in a certificate
under section 121 as the day of commencement of the company's
registration under Division 1 of Part 2.2; or
(b) in relation to a body corporate that is, or has applied to be,
registered as a company under Division 2, 3 or 4 of Part 2.2-the day
that is, or will be if the application is granted, specified under
subsection 148 (2) as the day of commencement of the registration;
"registration number" means:
(a) in relation to a company-the number allotted to it under subsection
120 (1), 129 (2) or 137 (2), as the case requires; or
(b) in relation to a registered body-the number allotted to it under
section 341 or 344, as the case requires;
"related body corporate", in relation to a body corporate, means a body
corporate that is related to the first-mentioned body by virtue of section 50
;
"relative", in relation to a person, means the spouse, parent or remoter
lineal ancestor, son, daughter or remoter issue, or brother or sister of the
person;
"relevant agreement" means an agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal;
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not
based on legal or equitable rights;
"relevant date", in relation to a winding up, means:
(a) in the case of a company ordered to be wound up by the Court that has
not previously commenced to be wound up voluntarily-the date of the
winding up order; or
(b) otherwise-the date of the commencement of the winding up;
"relevant interest":
(a) in relation to a share-has the meaning given by Division 5 (other than
section 44);
(b) in relation to securities-has the meaning given by Division 5 as it
applies by virtue of section 44;
(c) in relation to marketable securities within the meaning of Chapter
6-has, in Chapter 6, the meaning given by Division 5 as applying by
virtue of section 605;
"representative" means:
(a) in Chapter 7-a securities representative; or
(b) in Chapter 8-a futures representative;
"reproduction", in relation to a document, means a machine-copy of the
document or a print made from a negative of the document;
"reserve", in relation to a name, means reserve under Part 4.2;
"resolution", in relation to a body corporate, means a resolution other than a
special resolution;
"resolution for voluntary winding up" means the special resolution referred to
in section 491;
"responsible officer" means:
(a) in relation to a body corporate that is, or proposes to be, a member
of another body corporate:
(i) a director or executive officer of the first-mentioned body; or
(ii) a person who has control or substantial control of the
first-mentioned body; and
(b) in relation to a body corporate that applies for a licence-an officer
of the body who would perform duties in connection with the holding of
the licence;
"result" includes:
(a) when used as a verb-result indirectly; and
(b) when used as a noun-an indirect result;
"retirement village scheme" means a scheme, undertaking or enterprise (in
this definition called the "relevant scheme"), in Australia, that is being, or
is proposed to be, carried out or undertaken with the intention that the
participants, or a majority of the participants, in the relevant scheme be
provided, in connection with the relevant scheme, with residential
accommodation within a retirement community, whether or not the entitlement of
a participant to be provided with such accommodation derives from a
proprietary interest held by the participant in the premises where the
accommodation is provided, but does not include a time-sharing scheme;
"revoke", in relation to an accounting standard, means, in the case of a
provision of an accounting standard, vary the last-mentioned accounting
standard by omitting the provision;
"rules" means rules of the Court;
"same kind", in relation to a Chapter 8 agreement, has the meaning given by
section 54;
"scrip" means documents that are, or are documents of title to, securities;
" section 229 prohibition" has the meaning given by subsection 91 (1);
" section 230 order" has the meaning given by subsection 91 (2);
" section 599 order" has the meaning given by subsection 91 (3);
" section 600 notice" has the meaning given by subsection 91 (4); SECURITIES
"securities" has the meaning given by section 92;
"securities adviser" means a dealer, an investment adviser or a securities
representative of a dealer or of an investment adviser;
"securities business" has the meaning given by section 93;
"securities exchange" means:
(a) in a provision (other than a provision of Chapter 6 or 7) for the
purposes of which a regulation is in force defining that expression-a
securities exchange as defined by that regulation;
(b) in Chapter 6:
(i) the Exchange;
(ii) Australian Stock Exchange (Adelaide) Limited;
(iii) Australian Stock Exchange (Brisbane) Limited;
(iv) Australian Stock Exchange (Hobart) Limited;
(v) Australian Stock Exchange (Melbourne) Limited;
(vi) Australian Stock Exchange (Perth) Limited;
(vii) Australian Stock Exchange (Sydney) Limited; or
(viii) a body corporate that is declared by the regulations to be a
securities exchange for the purposes of that Chapter; or
(c) in Chapter 7-a stock exchange within the meaning of that Chapter or an
approved securities organisation;
"securities law" means a provision of, or a law corresponding to a provision
of, Chapter 6 or 7;
"securities licence" means a dealers licence or an investment advisers
licence;
"securities licensee" means a person who holds a securities licence;
"securities recommendation" means a recommendation with respect to eligible
securities or a class of eligible securities, whether made expressly or by
implication;
"securities report" means an analysis or report about securities;
"securities representative" has the meaning given by section 94;
"SEGC" means a body corporate in relation to which a nomination as the
Securities Exchanges Guarantee Corporation is in force under subsection 925
(1); "serious fraud" means an offence involving fraud or dishonesty, being an
offence:
(a) against an Australian law or any other law; and
(b) punishable by imprisonment for life or for a period, or maximum
period, of at least 3 months;
"share" means a share in the share capital of a body corporate, and includes
stock except where a distinction between stock and shares is expressed or
implied;
"sheriff" includes a person charged with the execution of a writ or other
process;
"sign" has, in subsection 117 (1) or (3), 125 (1) or (4) or 153 (1) or (7), a
meaning affected by section 95;
"sold position" means:
(a) in relation to a commodity agreement, or in relation to a futures
contract, being a commodity agreement-the position of a person who, by
virtue of the agreement, is under a Chapter 8 obligation to make
delivery in accordance with the agreement; or
(b) in relation to a futures contract, being an adjustment agreement-the
position of a person who, by virtue of the agreement:
(i) will, if the value or worth of the agreement (as determined in
accordance with the agreement) as at a particular future time
exceeds by a particular amount the value or worth of the
agreement (as so determined) as at a particular earlier time,
be under a Chapter 8 obligation to pay that amount; and (ii)
will, if the value or worth of the agreement (as so determined)
as at a particular future time is less by a particular amount
than the value or worth of the agreement (as so determined) as
at a particular earlier time, have a Chapter 8 right to receive
that amount;
"sole trader" means a person who is a member organisation of a securities
exchange within the meaning of Chapter 7;
"special resolution" has the meaning given by section 253;
"staff member", in relation to the Commission, means a person who is a staff
member for the purposes of the Commission Act;
"standardised agreement" means a Chapter 8 agreement that is one of 2 or more
Chapter 8 agreements each of which is a Chapter 8 agreement of the same kind
as the other, or as each of the others, as the case may be;
"State" includes the Northern Territory;
"statement", in Chapter 7, includes matter that is not written but conveys a
message;
"statutory meeting" means the meeting referred to in section 244;
"statutory report" means the report referred to in section 244;
"stock exchange" means:
(a) in a provision (other than a provision of Chapter 6 or 7) for the
purposes of which a regulation is in force defining that expression-a
stock exchange as defined by that regulation;
(b) in Chapter 6:
(i) the Exchange;
(ii) Australian Stock Exchange (Adelaide) Limited;
(iii) Australian Stock Exchange (Brisbane) Limited;
(iv) Australian Stock Exchange (Hobart) Limited;
(v) Australian Stock Exchange (Melbourne) Limited;
(vi) Australian Stock Exchange (Perth) Limited;
(vii) Australian Stock Exchange (Sydney) Limited; or
(viii) a body corporate that is declared by the regulations to be a
stock exchange for the purposes of that Chapter; or
(c) in Chapter 7-any of the following that is an eligible corporation:
(i) the Exchange;
(ii) Australian Stock Exchange (Adelaide) Limited;
(iii) Australian Stock Exchange (Brisbane) Limited;
(iv) Australian Stock Exchange (Hobart) Limited;
(v) Australian Stock Exchange (Melbourne) Limited;
(vi) Australian Stock Exchange (Perth) Limited;
(vii) Australian Stock Exchange (Sydney) Limited;
(viii) the Stock Exchange of Bendigo Limited;
(ix) the Stock Exchange of Ballarat Limited;
(x) the Stock Exchange of Newcastle Limited;
(xi) a body corporate that is approved by the Minister under
section 769 ;
"stock market" means, subject to section 97, a market, exchange or other place
at which, or a facility by means of which:
(a) offers to sell, purchase or exchange securities are regularly made or
accepted;
(b) offers or invitations are regularly made, being offers or invitations
that are intended, or may reasonably be expected, to result, whether
directly or indirectly, in the making or acceptance of offers to sell,
purchase or exchange securities; or
(c) information is regularly provided about the prices at which, or the
consideration for which, particular persons, or particular classes of
persons, propose, or may reasonably be expected, to sell, purchase or
exchange securities;
and, in Chapter 6, has a meaning affected by the definition of "stock
market" in section 603;
"subscriber", in relation to securities, means, in the case of prescribed
interests, any person accepting an offer, or making an offer pursuant to an
invitation, in respect of, or subscribing for or buying, any such prescribed
interests;
"subsidiary", in relation to a body corporate, means a body corporate that is
a subsidiary of the first-mentioned body by virtue of Division 6;
"substantial part", in relation to activities, includes the whole of those
activities;
"suspend", in relation to a licence, includes, except in sections 827 and
1192, make under section 827 or 1192, as the case requires, an order
prohibiting the licensee as mentioned in paragraph 827 (1) (d) or 1192 (1)
(d); "Table A" means Table A in Schedule 1;
"Table A proprietary company" means:
(a) except in relation to a State or Territory-a company limited by shares
that is a proprietary company; or
(b) in relation to a State or Territory-a company of the State or
Territory that is a company limited by shares, and a
proprietary company, of the State or Territory;
"Table B" means Table B in Schedule 1;
"takeover scheme" means a takeover scheme referred to in section 634;
"Territory" means:
(a) the Capital Territory; or
(b) an external Territory to which this Act extends;
"this Act" includes the regulations;
"time-sharing scheme" means a scheme, undertaking or enterprise, whether in
Australia or elsewhere:
(a) participants in which are, or may become, entitled to use, occupy or
possess, for 2 or more periods during the period for which the scheme,
undertaking or enterprise is to operate, property to which the scheme,
undertaking or enterprise relates; and
(b) that is to operate for a period of not less than 3 years;
"trade", in relation to securities, in relation to a stock market, includes:
(a) make or accept on that stock market an offer to sell, buy or exchange
the securities; and
(b) make on that stock market an offer or invitation that is intended, or
may reasonably be expected, to result in the making or acceptance of
an offer to sell, buy or exchange the securities;
"trading activities", in relation to an existing or proposed body corporate,
includes financial activities but does not include activities that the body
engages in, or will engage in, in the course of carrying on, as its sole or
principal business, the business of banking or insurance;
"trading corporation" means a body corporate that is, for the purposes of
paragraph 51 (20) of the Constitution, a trading corporation, or a financial
corporation, formed within the limits of the Commonwealth;
"trading floor", in relation to a futures market conducted by a body
corporate, means a place or facility that the body maintains or provides for
the acquisition or disposal of futures contracts by members of the body, or by
such members and other persons;
"transfer day" has the meaning given by section 98;
"transmission" means a transmission, by means of electric or electromagnetic
energy, of:
(a) sounds, including speech and music;
(b) visual images;
(c) signals for the communication, whether as between persons and persons,
persons and things or things and things, of any matter otherwise than
in the form of sounds or visual images; or
(d) signals for the actuation or control of machinery or apparatus;
"transparency", in relation to a document, means:
(a) a developed negative or positive photograph of that document (in this
definition called an "original photograph") made, on a transparent base, by
means of light reflected from, or transmitted through, the document;
(b) a copy of an original photograph made by the use of photo-sensitive
material (being photo-sensitive material on a transparent base) placed
in surface contact with the original photograph; or
(c) any one of a series of copies of an original photograph, the first of
the series being made by the use of photo-sensitive material (being
photo-sensitive material on a transparent base) placed in surface
contact with a copy referred to in paragraph (b), and each succeeding
copy in the series being made, in the same manner, from any preceding
copy in the series;
"Tribunal" means the Administrative Appeals Tribunal;
"Type A body" means:
(a) a foreign company;
(b) a corporation (other than a company) that consists of more than 5
members; or
(c) a partnership, or an unincorporated body, that:
(i) was formed in a Territory, in an excluded Territory or outside
Australia and the external Territories; and
(ii) consists of more than 5 members;
but does not include a close corporation or an exempt public authority;
"Type B body" means:
(a) a body corporate that is incorporated in a State; or
(b) a partnership, or an unincorporated body, that was formed in a State
or outside Australia and the external Territories;
and consists of more than 5 members, but does not include an exempt public
authority; "ultimate holding company", in relation to a body corporate,
means a body corporate that:
(a) is a holding company of the first-mentioned body; and
(b) is itself a subsidiary of no body corporate;
"unauthorised futures market" means a futures market that is neither a
futures market of a futures exchange nor an exempt futures market;
"unauthorised stock market" means a stock market that is neither a stock
market of a securities exchange nor an exempt stock market;
"underlying", in relation to securities, has the meaning given by section 99
;
"underwrite" includes sub-underwrite.
"unit", in relation to a share, debenture or other interest (whether a
prescribed interest or not), means a right or interest, whether legal or
equitable, in the share, debenture or other interest, by whatever term called,
and includes an option to acquire such a right or interest in the share,
debenture or other interest;
"unlimited company" means:
(a) except in relation to a State or Territory-a company; or
(b) in relation to a State or Territory-a company of the State or
Territory;
formed on the principle of having no limit placed on the liability of its
members; "value", in relation to an asset, includes amount;
"voting share", in relation to a body corporate, means an issued share in the
body that confers a right to vote, not being a right to vote that is
exercisable only in one or more of the following circumstances:
(a) during a period during which a dividend (or part of a dividend) in
respect of the share is in arrears;
(b) on a proposal to reduce the body's share capital;
(c) on a proposal that affects rights attached to the share;
(d) on a proposal to wind up the body;
(e) on a proposal for the disposal of the whole of the body's property,
business and undertaking;
(f) during the winding up of the body;
"wages", in relation to a company, means amounts payable to or in respect of
an employee of the company (whether the employee is remunerated by salary,
wages, commission or otherwise) under an industrial instrument, including
amounts payable by way of allowance or reimbursement but excluding amounts
payable in respect of leave of absence;
"wholly-owned subsidiary", in relation to a body corporate, means a body
corporate none of whose members is a person other than:
(a) the first-mentioned body;
(b) a nominee of the first-mentioned body;
(c) a subsidiary of the first-mentioned body, being a subsidiary none of
whose members is a person other than:
(i) the first-mentioned body; or
(ii) a nominee of the first-mentioned body; or
(d) a nominee of such a subsidiary.
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