disclosure
document for an offer of securities means:
- (a)
- a prospectus for the offer; or
- (b)
- a profile statement for the offer; or
- (c)
- an offer information statement for the offer.
8 Section 9 (definition of eligible communications service )
Repeal the
definition.
9 Section 9 (definition of excluded invitation )
Repeal the
definition.
10 Section 9 (definition of excluded issue )
Repeal the
definition.
11 Section 9 (definition of excluded offer )
Repeal the
definition.
12 Section 9 (definition of excluded prospectus )
Repeal the
definition.
13 Section 9
Insert: financial report means an annual
financial report or a half-year financial report prepared under Chapter 2M.
- Note: Section 295 deals with the contents of annual financial reports and
section 302 deals with the contents of half-year financial reports.
14 Section 9 (definition of minimum subscription )
Repeal the definition.
15
Section 9
Insert: offer information statement means an offer information
statement that is lodged with ASIC.
16 Section 9
Insert: profile statement means a profile statement that is
lodged with ASIC.
17 Section 9 (definition of promoter )
Repeal the definition.
18 Section 9
(definition of prospectus )
Repeal the definition, substitute: prospectus
means a prospectus that is lodged with ASIC.
19 Section 9
Insert: qualified accountant means a member of a professional
body that is approved by ASIC in writing for the purposes of this definition.
20 Section 9 (definition of replacement prospectus )
Repeal the definition.
21 Section 9 (paragraph (c) of the definition of securities exchange )
Omit
"Part 7.12", substitute "Chapter 6D".
22 Section 9 (definition of securities
law )
After "6", insert ", 6A, 6B, 6C, 6D".
23 Section 9 (definition of
stock exchange )
Omit ", section 869 or 1115 or Part 7.12", substitute "or
section 869 or 1115".
24 Section 9
Insert: State Fair Trading Act means
the following Acts for each jurisdiction:
25
Section 9 (definition of supplementary prospectus )
Repeal the definition.
26 Section 9 (definition of underlying )
Repeal the definition.
27 Section 9
Insert: underlying securities means:
- (a)
- in relation to an option over securities—those securities; and
- (b)
- in relation to scrip that is constituted by documents that are, or are
documents of title to, securities—those securities.
28 Subsection 45A(1) (note 2)
Omit "lodgment of a prospectus under Part
7.12", substitute "disclosure to investors under Chapter 6D".
29 Subsection
57A(3)
Repeal the subsection, substitute:
- (3)
- A financial institution (as
defined by section 111AZA) is not a corporation for the purposes of this Law.
30 Section 66
Repeal the section.
31 Section 69A
Repeal the section.
32
Section 78
Repeal the section.
33 Section 79
Omit "Subject to section 1006,
a person", substitute "A person".
34 Subsections 92(3), (4), (5) and (6)
Repeal the subsections, substitute:
- (3)
- In Chapters 6 to 6D (inclusive):
securities means:
- (a)
- shares in a body
- (b)
- debentures of a body
- (c)
- interests in a registered managed investment scheme
- (d)
- legal or equitable rights or interests in:
- (i)
- shares; or
- (ii)
- debentures; or
- (iii)
- interests in a registered managed investment scheme
- (e)
- options to acquire (whether by way of issue or transfer) a security
covered by paragraph (a), (b), (c) or (d).
It does not cover a futures contract or an option approved by a securities
exchange as an exchange traded option.
- Note: Section 9 defines body and sections 9 and 72 define futures contract .
35 Section 99
Repeal the section.
36 Subsection 102A(3)
Omit "1020A,".
37
Paragraph 111AF(1)(a)
Repeal the paragraph, substitute:
- (a)
- a disclosure
document in relation to securities in that class has been lodged with ASIC
under Chapter 6D; or
38 Paragraphs 111AF(1)(b) and (c)
Omit "prospectus" (wherever occurring),
substitute "disclosure document".
39 Section 111AQ
Omit "1022AA", substitute
"713".
40 Section 111AQ
Omit "1022", substitute "710"
41 Section 111AX
Omit "1084", substitute "741".
42 Subsection 111AZF(2) (table item 4)
Omit
"Parts 7.11 and 7.12", substitute "Chapter 6D and Part 7.11".
43 Subsection
111AZF(2) (table item 4)
Omit "The application of those Parts to financial
institutions is subject to the exceptions in sections 1015A and 1083A."
44
Section 8 of the Small business guide in Part 1.5
Omit "the company to lodge
a prospectus with ASIC", substitute "disclosure to investors under Chapter
6D".
45 Section 11 of the Small business guide in Part 1.5 (note at end)
Omit "1018", substitute "707".
46 Subsection 113(3)
Omit "the lodgment with
ASIC of a prospectus under Part 7.12", substitute "disclosure to investors
under Chapter 6D".
47 Subsection 163(3) (note)
Repeal the note, substitute:
- Note: An offer of shares associated with a proposed change of type may need
disclosure to investors under Part 6D.2 (see sections 706, 707 and 708).
48 Section 254Y (note)
Omit "subsection 1024E(7)", substitute "subsections
258E(2) and (3)".
49 Paragraph 258E(b)
Omit "share capital; or", substitute
"share capital.".
50 Paragraph 258E(c)
Repeal the paragraph.
51 At the end
of section 258E
Add:
- (2)
- A company may cancel shares returned to it under
section 651C, 724(2), 737 or 738 and any reduction in the company's share
capital that is involved is authorised by this subsection.
- (3)
- Any reduction in a company's share capital because of an order under
section 1325A is authorised by this subsection.
52 Subsection 601ED(2)
Omit "were excluded issues (disregarding paragraph
66(2)(da))", substitute "did not need disclosure to investors under Part 6D.2
(see sections 706 and 708)".
53 Paragraph 601MB(1)(b)
Omit "Part 7.12",
substitute "Chapter 6D".
54 Paragraph 601PA(2)(b)
Omit "excluded issues",
substitute "Chapter 6D not applying".
55 Subsection 765(2)
Repeal the
subsection.
56 Division 1 of Part 7.11
Repeal the Division.
57 Part 7.12
Repeal the Part.
58 Subparagraph 995(2)(b)(ii)
Repeal the subparagraph,
substitute:
- (ii)
- a notice published in relation to securities;
59 After subsection 995(2)
Insert:
- (2A)
- Conduct that contravenes:
- (a)
- section 670A (misleading or deceptive takeover document); or
- (b)
- section 728 (misleading or deceptive fundraising document);
does not contravene subsection (2). For this purpose, conduct contravenes the
provision even if the conduct does not constitute an offence, or does not lead
to any liability, because of the availability of a defence.
60 Subsection 995(4)
Omit "Part 7.12", substitute "Chapter 6D".
61 After
section 995
Insert: 995A Application of State Fair Trading Act provisions
The provisions of the State Fair Trading Act do not apply to dealings in
securities.
62 Section 996
Repeal the section.
63 Paragraph 1001B(1)(b)
Omit
"prospectus" (twice occurring), substitute "disclosure document".
64 Division
3 of Part 7.11
Repeal the Division.
65 Subsection 1005(1)
Omit "or Part
7.12".
- Note: The heading to section 1005 is altered by omitting " or Part
7.12 ".
66 Subsection 1005(4)
Omit "or Part 7.12" (twice occurring).
67 Subdivision
B of Division 4 of Part 7.11
Repeal the Subdivision.
68 Division 5 of Part
7.11
Repeal the Division.
69 Subparagraph 1274(2)(a)(ia)
Omit "7.12 or".
70 After section 1324
Insert: 1324A Provisions relating to prosecutions
In the prosecution of a person for an offence in respect of a contravention of
a provision of Chapter 5C or 6D or Part 7.11, the Court may do either or both
of the following:
- (a)
- grant an injunction under section 1324 against the person in relation to:
- (i)
- the conduct that constitutes, or is alleged to constitute, the offence; or
- (ii)
- other conduct of that kind
- (b)
- make an order under section 1324B in respect of the person.
1324B Order to disclose information or publish advertisements
Without limiting section 1324, if, on the application of ASIC, the Court is
satisfied that a person has engaged in conduct constituting a contravention of
a provision of Chapter 5C or 6D or Part 7.11, the Court may make either or
both of the following orders against that person or a person involved in the
contravention:
- (a)
- an order requiring the person to whom it is directed to disclose, in the
manner specified in the order, to:
- (i)
- the public; or
- (ii)
- a particular person; or
- (iii)
- a particular class of persons;
the information, or information of a kind, that is specified in the order and
is in the person's possession or to which the person has access
- (b)
- an order requiring the person to whom it is directed to publish, at the
person's own expense, in the manner and at times specified in the order,
advertisements whose terms are specified in, or are to be determined in
accordance with, the order.
71 Subsection 1325(1)
Omit "Part 7.11 or 7.12" (wherever occurring),
substitute "Chapter 5C or 6D or Part 7.11".
72 Subsection 1325(2)
Omit "Part
7.11 or 7.12", substitute "Chapter 5C or 6D or Part 7.11".
73 Subsection
1325(3)
Omit "Part 7.11 or 7.12" (wherever occurring), substitute "Chapter 5C
or 6D or Part 7.11".
74 Section 1326
After "1324", insert ",1324A, 1324B,".
75 Schedule 3
Repeal the items relating to sections 996, 1018, 1019 and 1020,
subsections 1023A(1), 1023B(2), 1024(2), 1024C(3), 1024D(2), 1024E(8) and
1024G(4) to (7), sections 1025, 1026, 1027 and 1028, subsections 1031(6),
1031(8) and 1031(9) and sections 1032, 1036, 1040, 1043, 1043B 1078, 1079 and
1081 and insert each of the following items in their appropriate place
according to the order that the provision referred to in the item appears in
the Corporations Law:
Subsection 721(1)
|
200 penalty units or imprisonment
for 5 years, or both.
|
Subsection 721(4)
|
200 penalty units or imprisonment
for 5 years, or both.
|
Subsection 722(1)
|
25 penalty units or imprisonment
for 6 months, or both.
|
Subsection 724(1)
|
25 penalty units or imprisonment
for 6 months, or both.
|
Subsection 725(1)
|
25 penalty units or imprisonment
for 6 months, or both.
|
Section 726
|
200 penalty units or imprisonment for 5
years, or both.
|
Subsection 727(1)
|
200 penalty units or imprisonment for 5
years, or both.
|
Subsection 727(2)
|
200 penalty units or imprisonment for 5
years, or both.
|
Subsection 727(3)
|
200 penalty units or imprisonment for 5
years, or both.
|
Subsection 727(4)
|
200 penalty units or imprisonment for 5
years, or both.
|
Subsection 728(3)
|
200 penalty units or imprisonment for 5
years, or both.
|
Section 730
|
50 penalty units or imprisonment for 1 year, or
both.
|
Subsection 734(1)
|
25 penalty units or imprisonment for 6 months, or
both.
|
Subsection 734(2)
|
25 penalty units or imprisonment for 6 months, or
both.
|
Section 735
|
10 penalty units or imprisonment for 3 months, or both.
|
Subsection 736(1)
|
25 penalty units or imprisonment for 6 months, or both.
|
Part 2—Amendments relating to new Chapter 2L (Debentures)
76 Section 9 (definition of borrowing corporation )
Repeal the definition.
77 Section 9
Insert: borrower , in relation to a debenture, means the body
that is or will be liable to repay money under the debenture.
78 Section 9 (definition of debenture )
Repeal the definition, substitute:
debenture of a body means a chose in action that includes an undertaking by
the body to repay as a debt money deposited with or lent to the body. The
chose in action may (but need not) include a charge over property of the body
to secure repayment of the money. However, a debenture does not include:
- (a)
- an undertaking to repay money deposited with or lent to the body by a
person if:
- (i)
- the person deposits or lends the money in the ordinary course of a
business carried on by the person; and
- (ii)
- the body receives the money in the ordinary course of carrying on a
business that neither comprises nor forms part of a business of borrowing
money and providing finance
- (b)
- an undertaking by an Australian ADI to repay money deposited with it, or
lent to it, in the ordinary course of its banking business
- (c)
- an undertaking to pay money under:
- (i)
- a cheque; or
- (ii)
- an order for the payment of money; or
- (iii)
- a bill of exchange
- (d)
- an undertaking to pay money under a promissory note that has a face value
of at least $50,000
- (e)
- an undertaking by a body corporate to pay money to a related body
corporate
- (f)
- an undertaking to repay money that is prescribed by the regulations.
For the purposes of this definition, if a chose in action that includes an
undertaking by a body to pay money as a debt is offered as consideration for
the acquisition of securities under an off-market takeover bid, or is issued
under a compromise or arrangement under Part 5.1, the undertaking is taken to
be an undertaking to repay as a debt money deposited with or lent to the body.
79 Section 9 (definition of eligible money market dealer )
Omit "paragraph
65(1)(a)", substitute "section 65".
80 Section 9 (definition of excluded
corporation )
Repeal the definition.
81 Section 9 (definition of exempt
securities )
Repeal the definition.
82 Section 9 (definition of guarantor
body )
Repeal the definition.
83 Section 9
Insert: guarantor , in
relation to a debenture, means a body that has guaranteed, or has agreed to
guarantee, the repayment of any money deposited or lent to the borrower under
the debenture.
84 Section 65
Repeal the section, substitute: 65 Eligible money market
dealer
ASIC may declare a body corporate to be an authorised dealer in the short term
money market by notice published in the Gazette .
85 Paragraph 111AH(1)(a)
Omit "1047", substitute "601CZB".
86 Section 111AI
Repeal the section, substitute: 111AI Debentures that need trustee appointed
under section 260FA
Debentures of a borrower are ED securities if section 260FA requires the
borrower to appoint a trustee.
87 At the end of paragraph 124(1)(b)
Add "(despite any rule of law or equity
to the contrary, this power includes a power to issue debentures that are
irredeemable, redeemable only if a contingency, however remote, occurs, or
redeemable only at the end of a period, however long)".
88 Subsection 168(2)
Repeal the subsection, substitute:
- (2)
- For the purposes of this Chapter,
choses in action (including an undertaking) that fall into one of the
exceptions in paragraphs (a), (b), (e) and (f) of the definition of debenture
in section 9 must also be entered into the register of debenture holders.
89 Paragraph 260C(3)(a)
Omit "borrowing corporation", substitute "borrower in
relation to debentures".
- Note: The heading to subsection 260C(3) is altered
by omitting " borrowing corporation " and substituting " debenture issuers ".
90 Paragraph 260C(3)(b)
Omit "borrowing corporation", substitute "borrower".
91 Paragraph 260C(3)(c)
Repeal the paragraph, substitute:
- (c)
- the borrower
is a borrower in relation to the debentures because it is or will be liable to
repay the money; and
92 Section 302 (note 3)
Omit "borrowing corporations", substitute "borrowers
in relation to debentures".
93 Subsection 313(1)
Omit "A borrowing
corporation's auditor", substitute "The auditor of a borrower in relation to
debentures".
- Note: The heading to section 313 is altered by omitting "
borrowing corporations and guarantor bodies " and substituting " debenture
issuers and guarantors ".
94 Paragraph 313(1)(a)
Omit "borrowing corporation", substitute "borrower".
95 Subsection 313(1)
Omit "borrowing corporation" (last occurring),
substitute "borrower".
96 Subsection 313(2)
Omit "a borrowing corporation or
guarantor body", substitute "a borrower, or guarantor, in relation to
debentures".
97 Subsection 313(2)
Omit "the borrowing corporation or
guarantor body", substitute "the borrower or guarantor".
98 Subsection 318(1)
Omit "borrowing corporation", substitute "borrower in relation to debentures".
99 Subsection 318(4)
Omit "borrowing corporation", substitute "borrower in
relation to debentures".
100 At the end of section 601CD
Add:
- (2)
- For the
purposes of this Division, a foreign company carries on business in this
jurisdiction if it:
- (a)
- offers debentures in this jurisdiction; or
- (b)
- is a guarantor body for debentures offered in this jurisdiction;
and Part 2L.1 applies to the debentures.
101 After Division 3 of Part 5B.2
Insert: Division 4—Register of
debenture holders for non-companies 601CZA Certain documents are debentures
For the purposes of this Division, choses in action (including an undertaking)
that fall into one of the exceptions in paragraphs (a), (b), (e) and (f) of
the definition of debenture in section 9 must also be entered into the
register of debenture holders.
601CZB Register of debenture holders to be maintained by non-companies - (1)
- A
body that is not a company must set up and maintain a register of debenture
holders if it issues debentures covered by Chapter 2L.
- Note 1: Companies have to keep a register of debenture holders under sections
168 and 171.
Note 2: The register may be kept on computer (see section 1306).
- (2)
- The register must contain the following information about each debenture
holder:
- (a)
- their name and address
- (b)
- the amount of the debentures held.
- (3)
- A body's failure to comply with this section in relation to a debenture
does not affect the debenture itself.
601CZC Location of register - (1)
- The register must be kept at:
- (a)
- the body's registered office; or
- (b)
- the body's principal place of business in Australia; or
- (c)
- a place in Australia (whether of the body or of someone else) where the
work involved in maintaining the register is done; or
- (d)
- another place approved by ASIC.
- (2)
- The body must lodge with ASIC a notice of the address at which the
register is kept within 7 days after the register is:
- (a)
- established at an office that is neither the body's registered office nor
at its principal place of business; or
- (b)
- moved from one office to another.
Notice is not required for moving the register between the registered office
and an office at the principal place of business.
601CZD Application of sections 173 to 177
Sections 173 to 177 apply to a register kept under this Division as if it were
kept under Chapter 2C.
- Note: Sections 173 to 177 deal with rights to inspect the register and get
copies, the obligations of agents who maintain the register, correction of the
register, the evidential value of the register and the use of information on
the register.
102 After section 563A
Insert: 563AAA Redemption of debentures
Priorities
- (1)
- Debentures of a company under a trust deed that are issued in place of
debentures under that deed that have been redeemed have the priority that the
redeemed debentures would have had if they had never been redeemed.
Deposit of debentures to secure advance
- (2)
- Debentures of a company are not
to be taken to be redeemed merely because:
- (a)
- the debentures secure advances on current account or otherwise; and
- (b)
- the company's account ceases to be in debit while those debentures remain
available.
103 Subsection 1302(1)
Omit "or 1047".
104 Schedule 3
Repeal the items
relating to sections 1052 and 1054. Insert each of the following items in
their appropriate place according to the order that the provision referred to
occurs in the Corporations Law:
Subsection 260FA(1)
|
25 penalty units or
imprisonment for 6 months, or both.
|
Subsection 260FA(3)
|
25 penalty units or
imprisonment for 6 months, or both.
|
Section 260FB
|
25 penalty units or
imprisonment for 6 months, or both.
|
Subsection 260FC(1)
|
25 penalty units or
imprisonment for 6 months, or both.
|
Subsection 260FC(2)
|
25 penalty units or
imprisonment for 6 months, or both.
|
Subsection 260GH(1)
|
200 penalty units
or imprisonment for 5 years, or both.
|
Section 260GI
|
25 penalty units or
imprisonment for 6 months, or both.
|
Section 260HE
|
25 penalty units or
imprisonment for 6 months, or both.
|
Subsection 601CZB(1)
|
10 penalty units
or imprisonment for 3 months, or both.
|
Section 601CZC
|
10 penalty units or
imprisonment for 3 months, or both.
|
Part 3—Amendments relating to new Chapter 2D (Officers)
105 Section 9 (definition of administration )
Omit "or relevant body".
106
Section 9 (paragraph (a) of the definition of administrator )
Omit "or
relevant body".
107 Section 9 (definition of benefit )
Repeal the
definition, substitute: benefit :
- (a)
- means any benefit, whether by way of payment of cash or otherwise; and
- (b)
- when used in Division 2 of Part 2D.2 (sections 200B to 1813)—means:
- (i)
- a payment or other valuable consideration; or
- (ii)
- an interest in property of any kind; and
- (iii)
- any other benefit.
108 Section 9
Insert:
board or managerial office (when used in Division 2 of Part 2D.2 (sections
200B to 1813) in relation to a body corporate) means:
- (a)
- an office of director of the body corporate; and
- (b)
- any other office in connection with the management of the body corporate's
affairs that is held by:
- (i)
- a person who also holds an office of director of the body corporate or a
related body corporate; or
- (ii)
- a person who has held an office of director of the body corporate or a
related body corporate at any time within the 12 months immediately before the
loss of, or retirement from, that office.
109 Section 9 (definition of director )
Repeal the definition, substitute:
director of a company or other body means:
- (a)
- a person who:
- (i)
- is appointed to the position of a director; or
- (ii)
- is appointed to the position of an alternate director and is acting in
that capacity;
regardless of the name that is given to their position; and
- (b)
- unless the contrary intention appears, a person who is not validly
appointed as a director if:
- (i)
- they act in the position of a director; or
- (ii)
- the directors of the company or body are accustomed to act in accordance
with the person's instructions or wishes.
Subparagraph (b)(ii) does not apply merely because the directors act on advice
given by the person in the proper performance of functions attaching to the
person's professional capacity, or the person's business relationship with the
directors or the company or body.
- Note: Paragraph (b)—Contrary intention—Examples of provisions for
which a person referred to in paragraph (b) would not be included in the term
"director" are:
* section 249C (power to call meetings of a company's members)
* subsection 251A(3) (signing minutes of meetings)
* section 205B (notice to ASIC of change of address).
110 Section 9
Insert:
general law means the principles and rules of the common law and equity.
111 Section 9 (definition of manage )
Repeal the definition.
112 Section 9
(definition of officer )
Repeal the definition, substitute: officer of a
corporation means:
- (a)
- a director or secretary of the corporation; or
- (b)
- a person:
- (i)
- who makes, or participates in making, decisions that affect the whole, or
a substantial part, of the business of the corporation; or
- (ii)
- who has the capacity to affect significantly the corporation's financial
standing; or
- (iii)
- in accordance with whose instructions or wishes the directors of the
corporation are accustomed to act (excluding advice given by the person in the
proper performance of functions attaching to the person's professional
capacity or their business relationship with the directors or the
corporation); or
- (c)
- a receiver, or receiver and manager, of the property of the corporation;
or
- (d)
- an administrator of the corporation; or
- (e)
- an administrator of a deed of company arrangement executed by the
corporation; or
- (f)
- a liquidator of the corporation; or
- (g)
- a trustee or other person administering a compromise or arrangement made
between the corporation and someone else.
- Note: Section 201B contains rules about who is a director of a corporation.
113 Section 9
Insert: payment (when used in Division 2 of Part 2D.2
(sections 200B to 1813)) includes a payment by way of damages for breach of
contract.
114 Section 9 (definition of person )
Repeal the definition, substitute:
person :
- (a)
- has a meaning affected by section 85A; and
- (b)
- when used in Division 2 of Part 2D.2 (sections 200B to 1813)—includes
a superannuation fund.
115 Section 9 (paragraph (a) of the definition of public company )
Omit
"paragraph 228(1)(b) and subsection 879(1)", substitute "subsection 849(1)".
116 Section 9 (paragraph (b) of the definition of public company )
Omit
"232A", substitute "195".
117 Section 9 (definition of relevant body )
Repeal the definition.
118 Section 9 (definition of section 229 prohibition )
Repeal the definition.
119 Section 9 (definition of section 230 order )
Repeal the definition.
120 Section 9 (definition of section 599 order )
Repeal the definition.
121 Section 9 (definition of section 600 notice )
Repeal the definition.
122 Paragraph 43(a)
Omit "235", "substitute "205G".
123 Section 60
Repeal the section.
124 Subsection 83(2)
Repeal the
subsection.
125 Section 91A
Repeal the section.
126 Paragraph 103(2)(a)
Omit "232A, 232B".
127 Subsection 109X(2)
Omit "242(1), or (3)", substitute
205B(1), (2) or (4)".
128 Subsection 117(2) (note 2)
Omit "242AA",
substitute "205D".
129 Subsection 135(1) (note)
Omit "section 224B",
substitute "sections 198E, 201F and 202C".
130 Section 141 (table item 1)
Omit "224C", substitute "201G".
131 Section 141 (table item 2)
Omit "224D",
substitute "201H".
132 Section 141 (table item 3)
Omit "225A", substitute
"201K".
133 Section 141 (table item 4)
Omit "226A", substitute "198A".
134
Section 141 (table item 5)
Omit "226B", substitute "198B".
135 Section 141
(table item 6)
Omit "226C", substitute "198C, 201J, 203F".
136 Section 141
(table item 7)
Repeal the item.
137 Section 141 (table item 8)
Omit "226E",
substitute "203C".
138 Section 141 (table item 9)
Omit "227A", substitute
"203A".
139 Section 141 (table item 11)
Omit "236A", substitute "202A".
140
Section 141 (table item 11)
Repeal the item, substitute:
10
| Material
interests—directors of proprietary companies
| 194
|
141
Section 141 (table item 31)
Omit "240(4A)", substitute "204F".
142
Subsection 248B(2) (note 1)
Omit "231,".
143 Section 248C (note)
Omit
"section 225A", substitute "subsection 201K(2)".
144 Section 248F (note 1)
Omit "sections 232A and 232B", substitute "section 195".
145 Paragraph
249H(3)(a)
Omit "227", substitute "203D".
146 Paragraph 249H(3)(b)
Omit
"section; or", substitute "section.".
147 Paragraph 249H(3)(c)
Repeal the
paragraph.
148 Section 260E
Omit "section 232", substitute "sections 180,
181, 182, 183 and 184".
149 Paragraph 300(8)(a)
Omit "241(2) or (3)",
substitute "199A(2) or (3)".
150 Paragraph 300(8)(b)
Omit "and that is
covered by subsection 241A(3)", substitute "for legal costs".
151 Subsection
300(8)
Omit "For the purposes of this subsection, officer has the same
meaning as in section 241.".
152 Subsection 300(8) (note)
Omit "241 and
241A", substitute "199A and 199B".
153 Subsection 300(11) (note)
Omit "235",
substitute "205G".
154 Subsection 420A(2)
Omit "232", substitute "180, 181,
182, 183 or 184".
155 Section 348 (table item 5)
Omit " section 242AA ",
substitute " subsection 205D(2) ".
156 Subsection 497(6)
After "secretary",
insert "(if the company has one)".
157 At the end of subsection 497(6)
Add:
If the company has 2 or more directors, the director so appointed must not
also attend in the capacity of a secretary.
158 Division 7 of Part 5.7B (heading)
Repeal the heading, substitute:
Division 7—Person managing a corporation while disqualified may become
liable for corporation's debts
159 Subparagraph 588Z(b)(i)
Omit "229, 230,
599, 600 or 1317EF", substitute "206A".
160 Paragraph 588Z(b)
Omit "(as
defined by section 91A)".
161 Section 599
Repeal the section.
162 Section
600
Repeal the section.
163 Subsection 601BC(2) (note 1)
Omit "242AA",
substitute "205D".
164 Paragraph 601CE(c)
Omit "242(2)", substitute
"205B(3)".
165 Paragraph 1015(1)(a)
Omit "subsection 232(7)", substitute
"Part 9.4B".
166 Paragraph 1265(3)(a)
Omit "subsection 232(7)", substitute
"Part 9.4B".
167 Subparagraph 1274(2)(a)(iaa)
Omit "242AA(3)", substitute
"205D(3)".
168 After section 1274
Insert: 1274AA Register of disqualified
company directors and other officers
- (1)
- ASIC must keep a register of
persons who have been disqualified from managing corporations under this Part
or prohibited from managing a corporation under any previous Law.
- (2)
- The register must contain a copy of:
- (a)
- each order made by the Court disqualifying a person from managing a
corporation, or prohibiting a person from managing a corporation, under a
corresponding previous law of this jurisdiction before the commencement of
this Part; and
- (b)
- every notice that was served under:
- (i)
- section 206F; or
- (ii)
- a previous law of this jurisdiction before the commencement of this Part
that corresponds to section 206F; and
- (c)
- every order lodged under section 206G.
- (3)
- Subsections 1274(2) and (5) apply to a copy of an order or notice as if
that copy were a document lodged with ASIC.
169 After section 1274B
Insert: 1274C ASIC certificate
ASIC may certify that a person was a director or secretary of a company at a
particular time or during a particular period. In the absence of evidence to
the contrary, a certificate is proof of the matters stated in it.
- Note: See section 1274B for the evidentiary status of documents prepared by
ASIC from the national database.
170 Subsection 1280(3)
Omit all the words after "a person who", substitute
"is disqualified from managing corporations under Part 2D.6".
171 Subsection
1282(4)
Omit all the words after "a person who", substitute "is disqualified
from managing corporations under Part 2D.6".
172 Subsection 1287(4)
Repeal
the subsection, substitute:
- (4)
- If a person who is registered as an auditor,
as a liquidator or as a liquidator of a specified corporate body is
disqualified from managing corporations under Part 2D.6, then, within a period
of 3 days after they become disqualified, they must lodge written particulars
in the prescribed form of the circumstances because of which they become
disqualified.
173 Paragraph 1292(7)(a)
Repeal the paragraph, substitute:
- (a)
- that the
person is disqualified from managing corporations under Part 2D.6; or
174 Paragraph 1381(a)
Omit "or relevant body".
175 Paragraph 1381(b)
Omit
"or relevant body".
176 Paragraph 1381(c)
Omit "or relevant body".
177
Paragraph 1381(d)
Omit ", of a relevant body,".
178 Section 1424 (table item
7)
Omit "subsection 227(3A)", substitute "subsection 203D(2)".
179 Schedule
3
Omit the items relating to sections 222A, 229, 230, 231, 235 and 236,
subsections 242(1), (3) and (4) and 1317(1) and (4) and sections 242A, 599 and
600. Insert each of the following items in their appropriate place according
to the order that the provision referred to occurs in the Corporations Law:
Section 184
Penalty: 200 penalty units or imprisonment for 5 years, or both.
|
Subsections 188(1) and (2)
Penalty: 5 penalty units.
|
Subsection 191(1)
Penalty: 10 penalty units or imprisonment for 3 months, or both.
|
Subsection
195(1)
Penalty: 5 penalty units.
|
Section 199B
Penalty: 5 penalty units.
|
Subsection 200B(1)
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
|
Section 200C
Penalty: 25 penalty units or imprisonment for 6 months,
or both.
|
Section 200D
Penalty: 25 penalty units or imprisonment for 6
months, or both.
|
Subsection 201D(1)
Penalty: 10 penalty units or
imprisonment for 3 months, or both.
|
Subsection 201D(2)
Penalty: 5 penalty
units.
|
Subsection 202B(1)
Penalty: 5 penalty units.
|
Subsections 203D(3) and
(5)
Penalty: 5 penalty units.
|
Section 204A
Penalty: 5 penalty units.
|
Subsections 204C(1) and (2)
Penalty: 5 penalty units.
|
Subsections 205B(1),
(2), (4) and (5)
Penalty: 10 penalty units or imprisonment for 3 months, or
both.
|
Subsections 205C(1) and (2)
Penalty: 10 penalty units or imprisonment
for 3 months, or both.
|
Subsection 205E(2)
Penalty: 10 penalty units or
imprisonment for 3 months, or both.
|
Section 205F
Penalty: 10 penalty units
or imprisonment for 3 months, or both.
|
Subsections 205G(1), (3) and (4)
Penalty: 10 penalty units or imprisonment for 3 months, or both.
|
Subsection
206A(1)
Penalty: 50 penalty units or imprisonment for 1 year, or both.
|
Section 224
Penalty: 200 penalty units or imprisonment for 5 years, or both.
|
Section 225
Penalty: 5 penalty units.
|
Part 4—Amendments relating to new Chapter 2E (Related Parties)
180 Subparagraph 8(5)(c)(vi)
Omit "243L(2)", substitute "213(2)".
181
Section 9 (definition of child entity )
Repeal the definition.
182 Section 9
(definition of control )
Repeal the definition, substitute: control has the
meaning given by section 50AA.
183 Section 9
Insert: entity : for the purposes of Chapter 2E an entity is
any of the following:
- (a)
- a body corporate
- (b)
- a partnership
- (c)
- an unincorporated body
- (d)
- an individual
- (e)
- for a trust that has only 1 trustee—the trustee
- (f)
- for a trust that has more than 1 trustee—the trustees together.
184 Section 9 (definition of financial benefit )
Repeal the definition,
substitute: financial benefit (when used in Chapter 2E) has a meaning that
is affected by section 229.
185 Section 9 (definition of parent entity )
Repeal the definition.
186
Section 9 (definition of related party )
Repeal the definition, substitute:
related party (when used in Chapter 2E) has the meaning given by section 228.
187 Section 9
Insert: remuneration of an officer or employee of a
corporation. A benefit given to an officer or employee of a corporation is
remuneration if and only if the benefit, were it received by a director of the
corporation, would be remuneration of the director for the purposes of an
accounting standard that deals with disclosure in companies' financial reports
of information about related parties. For the purposes of this definition, the
following are not officers of a corporation:
- (a)
- a receiver, or receiver and manager, of the property of the corporation
- (b)
- an administrator of the corporation
- (c)
- an administrator of a deed of company arrangement executed by the
corporation
- (d)
- a liquidator of the corporation
- (e)
- a trustee or other person administering a compromise or arrangement made
between the corporation and someone else.
188 Section 9 (definition of sibling entity )
Repeal the definition.
189
After section 50
Insert in Division 6 of Part 1.2: 50AA Control
- (1)
- For
the purposes of this Law, an entity controls a second entity if the first
entity has the capacity to determine the outcome of decisions about the second
entity's financial and operating policies.
- (2)
- In determining whether the first entity has this capacity:
- (a)
- the practical influence the first entity can exert (rather than the rights
it can enforce) is the issue to be considered; and
- (b)
- any practice or pattern of behaviour affecting the second entity's
financial or operating policies is to be taken into account (even if it
involves a breach of an agreement or a breach of trust).
- (3)
- The first entity does not control the second entity merely because the
first entity and a third entity jointly have the capacity to determine the
outcome of decisions about the second entity's financial and operating
policies.
- (4)
- If the first entity:
- (a)
- has the capacity to influence decisions about the second entity's
financial and operating policies; and
- (b)
- is under a legal obligation to exercise that capacity for the benefit of
someone other than the first entity's members;
the first entity is taken not to control the second entity.
190 Paragraph 103(2)(a)
Omit "243H, 243ZE", substitute "208, 209".
191
Section 256E (table item 5)
Omit "members of a public company, or diminish or
endanger its resources", substitute "a public company's members as a whole".
192 Subsection 300(4)
Repeal the subsection.
193 Section 601LA
Omit "Part
3.2A", substitute "Chapter 2E".
194 Sections 601LB to 601LE
Repeal the
sections, substitute: 601LB Replacement section 207
Chapter 2E applies as if section 207 were replaced by the following section:
207 Purpose
The rules in this Chapter, as they apply to a registered scheme, are designed
to protect the interests of the scheme's members as a whole, by requiring
member approval for giving financial benefits to the responsible entity or its
related parties that come out of scheme property or that could endanger those
interests.
601LC Replacement section 208
Chapter 2E applies as if section 208 were replaced by the following section:
208 Need for member approval for financial benefit - (1)
- If all the following
conditions are satisfied in relation to a financial benefit:
- (a)
- the benefit is given by:
- (i)
- the responsible entity of a registered scheme; or
- (ii)
- an entity that the responsible entity controls; or
- (iii)
- an agent of, or person engaged by, the responsible entity
- (b)
- the benefit either:
- (i)
- is given out of the scheme property; or
- (ii)
- could endanger the scheme property
- (c)
- the benefit is given to:
- (i)
- the person or a related party; or
- (ii)
- another person referred to in paragraph (a) or a related party of that
person;
then, for the person referred to in paragraph (a) to give the benefit,
either:
- (d)
- the person referred to in paragraph (a) must:
- (i)
- obtain the approval of the scheme's members in the way set out in sections
217 to 227; and
- (ii)
- give the benefit within 15 months after the approval; or
- (e)
- the giving of the benefit must fall within an exception set out in
sections 210 to 216.
- Note: Section 228 defines related party , section 191 defines entity , section
191 defines control and section 229 affects the meaning of giving a financial
benefit .
- (2)
- If:
- (a)
- the giving of the benefit is required by a contract; and
- (b)
- the making of the contract was approved in accordance with subparagraph
(1)(d)(i) as a financial benefit given to the entity or related party; and
- (c)
- the contract was made:
- (i)
- within 15 months after that approval; or
- (ii)
- before that approval, if the contract was conditional on the approval
being obtained;
member approval for the giving of the benefit is taken to have been given and
the benefit need not be given within the 15 months.
- (3)
- Subsection (1) does not prevent the responsible entity from paying itself
fees, and exercising rights to an indemnity, as provided for in the scheme's
constitution under subsection 601GA(2).
601LD Omission of sections 213, 214 and 224
Chapter 2E applies as if sections 213, 214 and 224 were omitted.
- Note: Instead of section 224, the rule in section 253E will apply.
601LE Modification of section 225
Chapter 2E applies as if subsection 225(1) were amended by omitting
"subsection 224(1)" and substituting "section 253E".
195 Schedule 3
Repeal the items relating to sections 243ZF and 243ZH. Insert
the following item in its appropriate place according to the order that the
provision referred to occurs in the Corporations Law:
Subsection 209(3)
Penalty: 2000 penalty units, or imprisonment for 5 years, or both.
|
Part 5—Amendments relating to new Part 2F.1 (Oppressive conduct of
affairs)
196 Section 53
Omit " or 246AA", substitute "232, 233 or 234".
197 At the
end of paragraph 136(1)(b)
Add "or a court order is made under section 233
that requires the company to adopt the constitution".
198 At the end of
subsection 136(2)
Add:
- Note: The company may need leave of the Court to
modify or repeal its constitution if it was adopted as the result of a Court
order (see subsection 233(3)).
199 Section 137
Repeal the section, substitute: 137 Date of effect of
adoption, modification or repeal of constitution
If a new constitution is adopted or an existing constitution is modified or
repealed, that adoption, modification or repeal takes effect:
- (a)
- if it is the result of a special resolution:
- (i)
- on the date on which the resolution is passed if it specified no later
date; or
- (ii)
- on a date specified in, or determined in accordance with, the resolution
if the relevant date is later than the date on which the resolution is passed;
or
- (b)
- if it is the result of a Court order made under section 233:
- (i)
- on the date on which the order is made if it specifies no later date; or
- (ii)
- on a date specified by the order.
200 Section 459B
Omit "246AA", substitute "234".
- Note: The heading to
section 459B of the Corporations Law is altered by omitting " 246AA " and
substituting " 234 ".
201 Paragraph 459C(1)(a)
Omit "246AA", substitute "234".
202 Section 467B
Omit "246AA", substitute "233".
203 Section 513A
Omit "246AA", substitute
"233".
204 Paragraph 513D(a)
Omit "246AA", substitute "233".
205 Schedule 3
Repeal the item relating to section 246AA and insert the following item in its
appropriate place according to the order that the provision referred to occurs
in the Corporations Law:
Section 235
|
Penalty: 50 penalty units or
imprisonment for 1 year, or both.
|
Part 6—Amendments relating to new Part 2F.1A (Proceedings on behalf of a
company by members and others)
206 At the end of section 247A
Add:
- (3)
- A person who:
- (a)
- is granted leave under section 237; or
- (b)
- applies for leave under that section; or
- (c)
- is eligible to apply for leave under that section;
may apply to the Court for an order under this section.
- (4)
- On application, the Court may make an order authorising:
- (a)
- the applicant to inspect books of the company; or
- (b)
- another person to inspect books of the company on the applicant's behalf.
- (5)
- The Court may make the order only if it is satisfied that:
- (a)
- the applicant is acting in good faith; and
- (b)
- the inspection is to be made for a purpose connected with:
- (i)
- applying for leave under section 237; or
- (ii)
- bringing or intervening in proceedings with leave under that section.
- (6)
- A person authorised to inspect books may make copies of the books unless
the Court orders otherwise.
207 At the end of section 300
Add:
Proceedings on behalf of a company
- (14)
- The report for a company must also include the following details of any
application for leave under section 237 made in respect of the company:
- (a)
- the applicant's name; and
- (b)
- a statement whether leave was granted.
- (15)
- The report for a company must also include the following details of any
proceedings that a person has brought or intervened in on behalf of the
company with leave under section 237:
- (a)
- the person's name
- (b)
- the names of the parties to the proceedings
- (c)
- sufficient information to enable members to understand the nature and
status of the proceedings (including the cause of action and any orders made
by the court).
Part 7—Amendments relating to new Part 9.4B (Civil penalty provisions)
208 Section 9 (definition of civil penalty order )
Repeal the definition,
substitute: civil penalty order means any of the following :
- (a)
- a
declaration of contravention under section 1317F
- (b)
- a pecuniary penalty order under section 1317G
- (c)
- a compensation order under section 1317H
- (d)
- an order under section 206C disqualifying a person from managing
corporations.
209 Section 9 (definition of civil penalty provision )
Repeal the definition,
substitute: civil penalty provision has the meaning given in subsection
1317E(1).
210 Subsection 91(4A)
Omit "relating to the person", substitute
"disqualifying the person from managing corporations".
211 Subsection 91(4A)
Repeal the subsection.
212 Section 111AZH
Repeal the section.
213 Paragraph
1.3 (note) of the Small business guide in Part 1.5
Omit "232, 233",
substitute "197".
214 Paragraph 1.3 (note) of the Small business guide in
Part 1.5
Omit "1317HA, 1317HD", substitute "1317H".
215 Paragraph 5.1 (note)
of the Small business guide in Part 1.5
Omit "1317EA(3)", substitute "206C,
1317G".
216 Paragraph 5.3 (note) of the Small business guide in Part 1.5
Repeal the note, substitute:
- [Sections 180, 181, 182, 183, 184, 475, 530A,
588G, 596, 601AE, 601AH, 1317H]
217 Paragraph 9 (note) of the Small business guide in Part 1.5
Repeal the
note, substitute:
- [588G, 1317H]
218 Subsection 254L(2) (note)
Omit "section 1317DA", substitute "section
1317E".
219 Section 254L (note)
Omit "Note", substitute "Note 1".
220 At
the end of section 254L
Add:
- Note 2: Section 79 defines involved .
221 At the end of section 254L (after the notes)
Add:
- (3)
- A person commits
an offence if they are involved in a company's contravention of section 254J
or 254K and the involvement is dishonest.
222 Subsection 256D(3) (note)
Omit "section 1317DA", substitute "section
1317E".
223 Section 256D (note)
Omit "Note", substitute "Note 1".
224 At
the end of section 256D
Add:
- Note 2: Section 79 defines involved .
225 At the end of section 256D (after the notes)
Add:
- (4)
- A person commits
an offence if they are involved in a company's contravention of section 256B
and the involvement is dishonest.
226 Section 256E (table item 1)
Omit "1317HA", substitute "1317H".
227
Section 257J (table item 1)
Omit "section 1317HA", substitute "section
1317H".
228 Subsection 259F(2) (note)
Omit "section 1317DA", substitute
"section 1317E".
229 Section 259F (note)
Omit "Note", substitute "Note 1".
230 At the end of section 259F
Add:
- Note 2: Section 79 defines involved .
231 At the end of section 259F (after the notes)
Add:
- (3)
- A person commits
an offence if they are involved in a company's contravention of section 259A
or subsection 259B(1) and the involvement is dishonest.
232 Subsection 260D(2) (note)
Omit "section 1317DA", substitute "section
1317E".
233 Section 260D (note)
Omit "Note", substitute "Note 1".
234 At
the end of section 260D
Add:
- Note 2: Section 79 defines involved .
235 At the end of section 260D (after the notes)
Add:
- (3)
- A person commits
an offence if they are involved in a company's contravention of section 260A
and the involvement is dishonest.
236 Section 260E
Omit "section 232", substitute "section 180, 181, 182, 183
or 184".
237 At the end of section 344
Add "a person commits an offence if
they contravene subsection (1) and the contravention is dishonest".
238
Subsection 344(1) (note)
Omit "section 1317DA", substitute "section 1317E".
239 Subsection 420A(2)
Omit "section 232", substitute "180 or 181".
240
Paragraph 588E(1)(e)
Omit "section 588G", substitute "subsection 588G(2)".
241 At the end of subsection 588G(2)
Add:
- Note: This subsection is a civil
penalty provision (see subsection 1317E(1)).
242 Subsection 588G(3)
Repeal the subsection, substitute:
- (3)
- A person
commits an offence if:
- (a)
- the person is a director of the company when it incurs a debt; and
- (b)
- the company is insolvent at that time, or becomes insolvent by incurring
that debt, or by incurring at that time debts including that debt; and
- (c)
- the person suspected at the time when the company incurred the debt that
the company was insolvent or would become insolvent as a result of incurring
that debt or other debts (as in paragraph (1)(b)); and
- (d)
- the person's failure to prevent the company incurring the debt was
dishonest.
243 Subsection 588H(1)
Omit "section 588G", substitute "subsection 588G(2)".
244 Subsection 588J(1)
Omit "section 588G", substitute "subsection 588G(2)".
245 Subsection 588J(1)
Omit "an order under subsection 1317EA(3)", substitute
"a pecuniary penalty order under section 1317G or an order under section 206C
disqualifying a person from managing corporations".
246 Subsection 588J(2)
Omit "section 588G, unless the application was made under Division 4 of Part
9.4B", substitute "subsection 588G(2)".
247 Paragraph 588K(1)(a)
Omit
"constituted by a contravention of section 588G", substitute "under subsection
588G(3)".
248 Subsection 588K(2)
Repeal the subsection.
249 Paragraph
588M(1)(a)
Omit "section 588G", substitute "subsection 588G(2) or (3)".
250
Section 588Q
Omit "section 588G", substitute "subsection 588G(3)".
251
Paragraph 588U(1)(c)
Omit "section 588G", substitute "subsection 588G(2)".
252 Schedule 3
Repeal the item relating to subsections 1317EF(1) and (4).
Insert each of the following items in their appropriate place according to the
order that the provision referred to in the item appears in the Corporations
Law:
Subsection 254L(3)
Penalty: 2,000 penalty units, or imprisonment for 5
years, or both.
|
Subsection 256D(4)
Penalty: 2,000 penalty units, or
imprisonment for 5 years, or both.
|
Subsection 259F(3)
Penalty: 2,000 penalty
units, or imprisonment for 5 years, or both.
|
Subsection 260D(3)
Penalty:
2,000 penalty units, or imprisonment for 5 years, or both.
|
Subsection 344(1)
Penalty: 2,000 penalty units, or imprisonment for 5 years, or both.
|
Subsection 588G(3)
Penalty: 2,000 penalty units, or imprisonment for 5 years,
or both.
|
Part 8—Amendments relating to new Part 12 of the ASIC Act (Accounting
standards)
253 Subsection 334(3)
Repeal the subsection.
254 Section 336
Repeal the
section.
Part 9—Amendments relating to new Chapters 6 to 6C (Takeovers)
255 Section 9 (paragraphs (b) and (c) of the definition of acquire )
Repeal
the paragraphs, substitute:
- (b)
- in relation to shares—has, in Chapter
7, the meaning given by subsection 51(1).
256 Section 9
Insert: appropriate dealer for a market bid means a member of
the relevant securities exchange.
257 Section 9 (definition of associate )
Repeal the definition, substitute:
associate : The following are the associates of a bidder making a takeover
offer, a substantial holder or a 90% holder:
- (a)
- if the bidder or holder is a body corporate:
- (i)
- a body corporate it controls; or
- (ii)
- a body corporate that controls it; or
- (iii)
- a body corporate that is controlled by an entity that controls it
- (b)
- a person with whom the bidder or holder has, or proposes to enter into, a
relevant agreement for the purpose of controlling or influencing the
composition of the body's board or the conduct of the body's affairs
- (c)
- a person with whom the bidder or holder is acting, or proposes to act, in
concert in relation to the body's affairs.
Otherwise a person's associates are determined under sections 10 to 17.
258 Section 9
Insert: bid class of securities for a takeover bid is the
class of securities to which the securities being bid for belong.
259 Section 9
Insert: bidder for a takeover bid means the person who makes
or proposes to make, or each of the people who make or propose to make, the
offers under the bid (whether personally or by an agent or nominee).
- Note: The dealer who announces a market bid is not the bidder; the bidder is
the person or people on whose behalf the announcement is made.
260 Section 9
Insert: bidder's statement means a bidder's statement under
sections 636 and 637 as supplemented.
261 Section 9
Insert: bid period :
- (a)
- for an off-market bid—starts when the bidder's statement is given to
the target and ends:
- (i)
- 1 month later if no offers are made under the bid; or
- (ii)
- at the end of the offer period; and
- (b)
- for a market bid—starts when the bid is announced to the relevant
securities exchange and ends at the end of the offer period.
262 Section 9 (definition of body corporate )
Repeal the definition,
substitute: body corporate :
- (a)
- includes a body corporate that is being wound up or has been dissolved;
and
- (b)
- in this Chapter (except section 66A) and section 206E includes an
unincorporated registrable body.
263 Section 9 (definition of Chapter 6 body )
Repeal the definition.
264
Section 9 (definition of Chapter 6 company )
Repeal the definition.
265
Section 9 (at the end of the definition of chargeable matter )
Add:
- (i)
- the
making of an application under that Law to the Panel;
- (j)
- the doing of any act by the Panel in dealing with an application under
that Law to the Panel.
266 Section 9 (definition of class )
Repeal the definition, substitute:
class has:
- (a)
- in relation to futures contracts—a meaning affected by subsection
72(3); and
- (b)
- in relation to shares or interests in a managed investment scheme—a
meaning affected by section 57; and
- (c)
- when used in relation to securities for the purposes of Chapter 6, 6A or
6C—a meaning affected by subsection 605(2).
267 Section 9 (paragraph (ca) of the definition of company )
Omit "body;
and", substitute "body."
268 Section 9 (paragraph (d) of the definition of
company )
Repeal the paragraph.
269 Section 9
Insert: convertible
securities : Securities are convertible into another class of securities if
the holder may have the other class of securities issued to them by the
exercise of rights attached to those securities. An option may be a
convertible security even if it is non-renounceable.
270 Section 9
Insert: current market bid price for securities covered by a
market bid is the price specified in the announcement of the bid as increased
or decreased during the offer period.
271 Section 9
Insert: date of a takeover bid is:
- (a)
- for an off-market bid—the date on which offers are first made under
the bid; or
- (b)
- for a market bid—the date on which the bid is announced to the
relevant securities exchange.
272 Section 9
Insert: defeating condition for a takeover bid means a
condition that:
- (a)
- will, in circumstances referred to in the condition, result in the
rescission of, or entitle the bidder to rescind, a takeover contract; or
- (b)
- prevents a binding takeover contract from resulting from an acceptance of
the offer unless or until the condition is fulfilled.
273 Section 9 (definition of dispose of )
Repeal the definition, substitute:
dispose of a futures contract has the meaning given by sections 24, 26, 27 and
28. For the purposes of Chapter 6, a person who has a relevant interest in
securities disposes of the securities if, and only if, they cease to have a
relevant interest in the securities.
274 Section 9 (definition of enter into )
Repeal the definition, substitute:
enter into : A person who:
- (a)
- enters into, or becomes a party to, a relevant agreement in relation to
voting shares or other securities; or
- (b)
- exercises an option to have voting shares or other securities issued or
granted;
is taken to enter into a transaction in relation to the shares or securities.
Enter into , in relation to a futures contract, has a meaning affected by
subsection 72(2).
275 Section 9 (paragraph (a) of the definition of Exchange subsidiary )
Repeal the paragraph.
276 Section 9
Insert: exchange traded option means
an option declared by a securities exchange to be an exchange traded option.
277 Section 9
Insert: foreign holder of securities means a holder of the
securities whose address, as shown in the register in which details of their
holding is recorded, is a place outside Australia and the external
Territories.
278 Section 9
Insert: highest outside purchase price for a takeover bid is
the highest amount paid or payable by the bidder for a security in the bid
class under a purchase made outside the bid and during the bid period.
279 Section 9
Insert: listed : A company, managed investment scheme or
other body is listed if it is included in the official list of a securities
exchange.
280 Section 9 (definition of listing rules )
Repeal the definition,
substitute: listing rules , when used in Chapter 7, has the meaning given by
section 761.
281 Section 9 (definition of make )
Repeal the definition.
282 Section 9
Insert: market bid means a takeover bid made under Chapter 6 as a market bid
(see section 616).
283 Section 9
Insert: necessary transfer documents for the transfer of
securities to a person means the documents that are sufficient to enable the
person to become the holder of the securities.
284 Section 9 (definition of offer )
Repeal the definition.
285 Section 9
Insert: offer period for a takeover bid is the period for which offers under
the bid remain open.
286 Section 9
Insert: off-market bid means a takeover bid made under
Chapter 6 as an off-market bid (see section 616).
287 Section 9
Insert: on-market : a transaction of any kind is an on-market
transaction if it is effected on a stock market of a securities exchange and
is:
- (a)
- an on-market transaction as defined in the rules governing the operation
of the exchange; or
- (b)
- if those rules do not define on-market transactions—effected in the
ordinary course of trading on the stock market.
288 Section 9
Insert: proportional takeover approval provisions , in
relation to a company, means provisions of the kind referred to in subsection
648D(1) that are contained in, or that it is proposed to insert in, the
constitution of the company.
289 Section 9
Insert: proportional takeover bid means an off-market bid for
a specified proportion of the securities in the bid class (see paragraph
618(1)(b)).
290 Section 9
Insert: public authority of the Commonwealth or a State
means:
- (a)
- a Minister or State Minister; or
- (b)
- the holder of an office established by a Commonwealth or State law; or
- (c)
- a body corporate incorporated for a public purpose by a Commonwealth or
State law to the extent to which it is exercising a power conferred by a
Commonwealth or State law.
291 Section 9 (definition of relevant interest )
Repeal the definition,
substitute: relevant interest , in relation to securities, has a meaning
given by sections 608 and 609.
292 Section 9
Insert: relevant securities exchange for a listed company, or
listed registered managed investment scheme, means:
- (a)
- the securities exchange on whose stock market the company or scheme is
listed; or
- (b)
- if the company or scheme is listed on 2 or more exchanges—each of
those exchanges.
293 Section 9
Insert: remedial order means an order that:
- (a)
- restrains a person from exercising any voting or other rights attached to
securities
- (b)
- directs a body corporate not to make or to defer payment of an amount due
from the body corporate in respect of securities
- (c)
- restrains a person from acquiring securities or an interest in securities
- (d)
- directs a person to dispose of, or not to dispose of, securities or
interests in securities
- (e)
- directs the disposal referred to in paragraph (d):
- (i)
- to be made within a specified time; or
- (ii)
- to be made subject to specified conditions; or
- (iii)
- not to be made to a specified person or persons or to a specified class
or classes of persons
- (f)
- directs a specified person to pay to the body corporate an amount equal to
any profit or benefit that the person obtains because of the disposal referred
to in paragraph (d)
- (g)
- vests securities, or an interest in securities, in ASIC
- (h)
- directs a body corporate not to register the transfer or transmission of
securities
- (i)
- cancels securities issued as consideration for offers under a takeover bid
- (j)
- declares that an exercise of the voting or other rights attached to
securities be disregarded
- (k)
- cancels or declares voidable:
- (i)
- an agreement or offer relating to a takeover bid, or a proposed takeover
bid; or
- (ii)
- any other agreement or offer in connection with the acquisition of
securities or relevant interests in securities
- (l)
- directs a person to give specified information to the holders of
securities of a body corporate
- (m)
- directs a body corporate not to issue securities to a person
- (n)
- if an order of a kind referred to in paragraphs (a) to (m) is in force in
respect of securities—directs the registered holder of the securities to
give written notice of the order to any person whom the holder knows to be
entitled to exercise a right to vote attached to those securities
- (o)
- directs a body corporate to repeal or modify its existing constitution or
adopt a particular constitution
- (p)
- if a person has failed to comply with a requirement of Chapter 6, 6A, 6B
or 6C — directs that person to comply with that requirement.
294 Section 9
Insert: renounceable option means an assignable option to
have an allotment of shares in a body corporate made to the holder of the
option.
295 Section 9 (definition of stock market )
Omit "and, in Chapter 6, has a
meaning affected by the definition of stock market in section 603;".
296
Section 9
Insert: substantial holding : A person has a substantial holding
in a body corporate, or listed registered managed investment scheme, if:
- (a)
- the total votes attached to voting shares in the body, or voting interests
in the scheme, in which they or their associates:
- (i)
- have relevant interests; and
- (ii)
- would have a relevant interest but for subsection 609(6) (exchange traded
options) or 609(7) (conditional agreements);
is 5% or more of the total number of votes attached to voting shares in the
body, or interests in the scheme; or
- (b)
- the person has made a takeover bid for voting shares in the body, or
voting interests in the scheme, and the takeover period has started and not
yet ended.
- Note: For relevant interest , see section 608.
297 Section 9 (definition of takeover bid )
Repeal the definition,
substitute: takeover bid means an off-market bid or market bid made under
Chapter 6.
298 Section 9
Insert: takeover contract means a contract that results from
the acceptance of an offer made under a takeover bid.
299 Section 9 (definition of takeover scheme )
Repeal the definition.
300
Section 9
Insert: target for a takeover bid means the company, listed body
or managed investment scheme whose securities are to be acquired under the
bid.
301 Section 9
Insert: target's statement means a target's statement under
sections 638 to 640 as supplemented.
302 Section 9
Insert: trading day of a securities exchange or stock
exchange means a day on which a stock market of the exchange or stock exchange
is open for trading in securities.
303 Section 9 (definition of unclaimed property )
Omit "(except in section
702)".
304 Section 9
Insert: voting interest , in relation to a managed
investment scheme, means an issued interest in the scheme 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)
- on a proposal that affects rights attached to the interests
- (b)
- on a proposal to wind up the scheme
- (c)
- on a proposal for the disposal of the whole of the scheme property,
business and undertaking
- (d)
- during the winding up of the scheme.
305 Section 9
Insert: voting power in a company has the meaning given by
section 610.
306 Section 9 (definition of voting share )
Repeal the definition,
substitute: voting share in a body corporate means an issued share in the
body that carries any voting rights beyond the following:
- (a)
- a right to vote while a dividend (or part of a dividend) in respect of the
share is unpaid
- (b)
- a right to vote on a proposal to reduce the body's share capital
- (c)
- a right to vote on a resolution to approve the terms of a buy-back
agreement
- (d)
- a right to vote on a proposal that affects the rights attached to the
share
- (e)
- a right to vote on a proposal to wind the body up
- (f)
- a right to vote on a proposal for the disposal of the whole of the body's
property, business and undertaking
- (g)
- a right to vote during the body's winding up.
307 Paragraphs 12(1)(b) and (c)
Repeal the paragraphs, substitute:
- (b)
- the
primary person's voting power in a body corporate; or
- (c)
- a takeover bid for securities in a body corporate;
308 Paragraph 16(1)(c)
Repeal the paragraph, substitute:
- (c)
- one had sent,
or proposes to send, to the other an offer under a takeover bid for shares
held by the other;
309 Division 5 of Part 1.2
Repeal the Division.
310 Subsection 51(1)
Omit
"Chapters 6 and 7", substitute "Chapter 7".
311 Subsection 51(2)
Repeal the
subsection.
312 Section 53A
Repeal the section.
313 Paragraph 111AG(1)(a)
Repeal the paragraph, substitute:
- (a)
- securities in that class have been
issued by the body as consideration for offers under an off-market bid; and
- Note: The heading to section 111AG is altered by omitting " a takeover scheme
" and substituting " an off-market takeover bid ".
314 Paragraph 111AG(1)(b)
Omit "pursuant to the takeover scheme", substitute
"under the off-market bid".
315 Subsection 111AZF(2) (table item 3.1)
Omit
"purposes, except for paragraph (d). Under that paragraph, financial
institutions may be companies for the purposes of Chapter 6.", substitute
"purposes.".
316 Paragraph 140(2)(c)
Repeal the paragraph, substitute:
- (c)
- imposes or increases restrictions on the right to transfer the shares already
held by the member, unless the modification is made:
- (i)
- in connection with the company's change from a public company to a
proprietary company under Part 2B.7; or
- (ii)
- to insert proportional takeover approval provisions into the company's
constitution.
317 Subsection 168(1) (note 1)
Repeal the note, substitute:
- Note 1: See
also section 271 (register of charges).
318 Paragraph 169(5)(b)
Repeal the paragraph, substitute:
- (b)
- is not a
listed company;
319 Subsection 169(6)
Omit "720 or 722", substitute "672B or 672C".
320
Subsection 252L(1)
Omit "special or extraordinary".
321 After subsection
252L
Insert:
- (1A)
- The resolution must be:
- (a)
- a special resolution; or
- (b)
- an extraordinary resolution; or
- (c)
- a resolution to remove the responsible entity of a scheme that is listed
and choose a new responsible entity.
322 Subsection 252M(1)
Omit "special or extraordinary".
323 Section 253E
After "as a member.", insert "However, if the scheme is listed, the
responsible entity and its associates are entitled to vote their interest on
resolutions to remove the responsible entity and choose a new responsible
entity.".
324 Section 256E (table item 3)
Repeal the item.
325 Section 257J
(table item 3)
Repeal the item.
326 Section 257J (table item 4)
Omit
"section 42A", substitute "subsection 609(4)".
327 Section 257J (table item
4)
Omit "section 623A", substitute "section 611 (item 19 of the table)".
328
Paragraph 324(1)(e)
Omit "is a substantial shareholder for the purposes of
Part 6.7", substitute "has a substantial holding".
329 Paragraph 324(2)(f)
Omit "is a substantial shareholder for the purposes of Part 6.7", substitute
"has a substantial holding".
330 Paragraph 331AA(1)(e)
Omit "is a
substantial shareholder for the purposes of Part 6.7", substitute "has a
substantial holding".
331 Paragraph 331AA(2)(f)
Omit "is a substantial
shareholder for the purposes of Part 6.7", substitute "has a substantial
holding".
332 Paragraph 331AD(b)
Omit "an extraordinary resolution",
substitute "a resolution".
333 Paragraph 331AD(d)
Omit "an extraordinary
resolution" (twice occurring), substitute "a resolution".
334 Subsection
414(2)
Omit "takeover offers, or a takeover announcement, under Chapter 6",
substitute "offers under a takeover bid".
335 Paragraph 448C(1)(a)
Omit "is
a substantial shareholder for the purposes of Part 6.7", substitute "has a
substantial holding".
336 Paragraph 532(2)(a)
Omit "is a substantial
shareholder for the purposes of Part 6.7", substitute "has a substantial
holding".
337 Paragraph 601CQ(a)
Omit "414 or 701", substitute "414, 661A or
664A".
338 Subsection 601FL(1)
Repeal the subsection, substitute:
- (1)
- If
the responsible entity of a registered scheme wants to retire, it must call a
members' meeting to explain its reason for wanting to retire and to enable the
members to vote on a resolution to choose a company to be the new responsible
entity. The resolution must be an extraordinary resolution if the scheme is
not listed.
339 Subsection 601FM(1)
Repeal the subsection, substitute:
- (1)
- If members
of a registered scheme want to remove the responsible entity, they may take
action under Division 1 of Part 2G.4 for the calling of a members' meeting to
consider and vote on a resolution that the current responsible entity should
be removed and a resolution choosing a company to be the new responsible
entity. The resolutions must be extraordinary resolutions if the scheme is not
listed.
340 Subsection 601FQ(1)
Omit "extraordinary resolution", substitute
"resolution".
341 Subsection 601FQ(1)
After "the new responsible entity.",
insert "The resolution must be an extraordinary resolution if the scheme is
not listed.".
342 Paragraph 601NE(1)(d)
Omit "an extraordinary resolution to
remove", substitute "a resolution removing".
343 Paragraph 601NE(1)(d)
Omit
"an extraordinary resolution" (second occurring), substitute "a resolution".
344 Section 766E
Repeal the section, substitute: 766E Unacceptable ownership
situation
For the purposes of this Division, an unacceptable ownership situation exists
if any one person's voting power in the Exchange exceeds 5%.
345 Subsection 779J(2)
Omit "a share or".
346 Paragraph 857(2)(b)
Omit "is
a substantial shareholder for the purposes of Part 6.7", substitute "has a
substantial holding".
347 Subsection 879(2)
Omit "relevant interest" (twice
occurring), substitute "relevant interests".
348 Paragraph 881(2)(b)
Omit "a
relevant interest", substitute "relevant interests".
349 Subsection 881(2)
Omit "relevant interest in those securities", substitute "relevant interests
in those securities".
350 Subsection 881(3)
Omit "a relevant interest",
substitute "relevant interests".
351 Subsection 881(3)
Omit "relevant
interest in those securities", substitute "relevant interests in those
securities".
352 Subsection 881(4)
Omit "relevant interest", substitute
"relevant interests".
353 Subsection 881(5)
Omit "a relevant interest",
substitute "relevant interests".
354 Subsection 881(5)
Omit "the relevant
interest", substitute "the relevant interests".
355 Subsection 881(6)
Omit
"relevant interest in" (twice occurring), substitute "relevant interests in".
356 Paragraph 881(6)(a)
Omit "relevant interest", substitute "relevant
interests".
357 Paragraph 881(6)(b)
Omit "relevant interest relates",
substitute "relevant interests relate".
358 Paragraph 881(6)(c)
Omit "the
relevant interest was acquired", substitute "the relevant interests were
acquired".
359 Subsection 954A(1) (subparagraph (b)(ii) of the definition of
security benefit )
Omit "takeover", substitute "takeover bid".
360
Subparagraph 995(2)(b)(iii)
Repeal the subparagraph, substitute:
- (iii)
- the
making of, or the making of an evaluation of, or of a recommendation in
relation to, offers under a takeover bid;
361 Subsection 1096A(8) (definition of company )
Repeal the definition.
362
Paragraph 1097B(3)(b)
Omit "642A", substitute "653A".
363 Paragraph
1215(2)(e)
Omit "is a substantial shareholder for the purposes of Part 6.7",
substitute "has a substantial holding".
364 Paragraph 1215(3)(f)
Omit "is a
substantial shareholder for the purposes of Part 6.7", substitute "has a
substantial holding".
365 Paragraph 1252(1)(b)
Omit "is, for the purposes of
Part 6.7, a substantial shareholder", substitute "has a substantial holding".
366 Subparagraph 1252(1)(c)(ii)
Omit "is, for the purposes of Part 6.7, a
substantial shareholder", substitute "has a substantial holding".
367 After
paragraph 1317C(g)
Insert:
- (ga)
- a decision of ASIC under section 655A; or
- (gb)
- a decision of ASIC under section 673 in relation to securities of the
target of a takeover bid during the bid period; or
- (gc)
- a decision by ASIC whether to make an application under section 657C,
657G, 659B, 1325A, 1325B or 1325C; or
368 Schedule 3
Repeal the items relating to Chapter 6 (other than a provision
referred to in a later heading in this Schedule), sections 672, 704 and 705
and subsections 746(2) and 746(4). Insert each of the following items in their
appropriate place according to the order that the provision referred to occurs
in the Corporations Law:
Subsection 606(1)
Penalty: 25 penalty units or
imprisonment for 6 months, or both.
|
Subsection 606(2)
Penalty: 25 penalty
units or imprisonment for 6 months, or both.
|
Subsection 606(4)
Penalty: 25
penalty units or imprisonment for 6 months, or both.
|
Paragraphs 614(1)(a),
(b), (c) and (d)
Penalty: 100 penalty units or imprisonment for 2 years, or
both.
|
Subsection 622(1)
Penalty: 25 penalty units or imprisonment for 6
months, or both.
|
Subsection 623(1)
Penalty: 25 penalty units or imprisonment
for 6 months, or both.
|
Subsection 624(2)
Penalty: 25 penalty units or
imprisonment for 6 months, or both.
|
Subsections 630(2), (3) and (4)
Penalty:
25 penalty units or imprisonment for 6 months, or both.
|
Subsection 631(1)
Penalty: 100 penalty units or imprisonment for 2 years, or both.
|
Subsection
631(2)
Penalty: 200 penalty units or imprisonment for 5 years, or both.
|
Subsection 633(1) (items 4, 5, 7, 8, 9, 11, 12, 13, 14)
Penalty: 25 penalty
units or imprisonment for 6 months, or both.
|
Section 635 (items 5, 7, 8, 10,
11, 12, 13, 14)
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
|
Subsection 636(3)
Penalty: 25 penalty units or imprisonment for 6
months, or both.
|
Subsection 636(4)
Penalty: 10 penalty units.
|
Subsection
637(1)
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Subsection 638(1)
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
|
Subsection 638(3)
Penalty: 25 penalty units or imprisonment for 6
months, or both.
|
Subsection 638(5)
Penalty: 25 penalty units or imprisonment
for 6 months, or both.
|
Subsection 638(6)
Penalty: 10 penalty units.
|
Subsection 639(1)
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
|
Subsection 640(1)
Penalty: 25 penalty units or imprisonment for 6
months, or both.
|
Subsection 641(1)
Penalty: 25 penalty units or imprisonment
for 6 months, or both.
|
Subsection 643
Penalty: 25 penalty units or
imprisonment for 6 months, or both.
|
Section 644
Penalty: 25 penalty units or
imprisonment for 6 months, or both.
|
Subsections 647(1), (2) and (3)
Penalty:
25 penalty units or imprisonment for 6 months, or both.
|
Subsection 648A(1)
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Subsections
648E(1) and (2)
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
|
Section 648G
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
|
Subsection 649C(2)
Penalty: 25 penalty units or imprisonment for 6
months, or both.
|
Subsection 650B(3)
Penalty: 25 penalty units or
imprisonment for 6 months, or both.
|
Subsections 650E(5) and (6)
Penalty: 25
penalty units or imprisonment for 6 months, or both.
|
Subsection 650F(3)
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Subsection
651A(4)
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Section 651C
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Subsection 652C(3)
Penalty: 25 penalty units or imprisonment for 6 months, or
both.
|
Subsection 654A(1)
Penalty: 25 penalty units or imprisonment for 6
months, or both.
|
Subsection 654C(1)
Penalty: 25 penalty units or
imprisonment for 6 months, or both.
|
Subsection 654C(3)
Penalty: 25 penalty
units or imprisonment for 6 months, or both.
|
Section 657F
Penalty: 25
penalty units or imprisonment for 6 months, or both.
|
Section 661D
Penalty:
25 penalty units or imprisonment for 6 months, or both.
|
Subsection 662A(1)
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Section 663A
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Subsections
664D(1), (2) and (3)
Penalty: 25 penalty units or imprisonment for 6 months,
or both.
|
Subsections 664E(2), (3) and (4)
Penalty: 25 penalty units or
imprisonment for 6 months, or both.
|
Subsection 665A(2)
Penalty: 25 penalty
units or imprisonment for 6 months, or both.
|
Subsection 665D(3) or (4)
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Section 665E
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Subsection
666A(1)
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Subsections 666B(2) and (3)
Penalty: 25 penalty units or imprisonment for 6
months, or both.
|
Subsection 667A(3)
Penalty: 25 penalty units or
imprisonment for 6 months, or both.
|
Subsections 668A(1), (3) and (4)
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Subsection
668B(1)
Penalty: 25 penalty units or imprisonment for 6 months, or both.
|
Subsection 670A(3)
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
|
Subsections 670C(1), (2) and (3)
Penalty: 25 penalty units or
imprisonment for 6 months, or both.
|
Subsection 671B(1)
Penalty: 25 penalty
units or imprisonment for 6 months, or both.
|
Subsection 672B(1)
Penalty: 25
penalty units or imprisonment for 6 months, or both.
|
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