Commonwealth Numbered Regulations

CORPORATIONS AMENDMENT REGULATIONS 1999 (NO. 3) 1999 NO. 143 - SCHEDULE 1

(regulation 3)

[1] Subregulation 1.0.02 (1), after definition of approved form

insert

"benefit fund" has the meaning given by section 16B of the Life Insurance Act 1995 .

"financial business "means a business that:

(a)

consists of, or includes, the provision of financial services; or

(b)

relates wholly or partly to the provision of financial services.

[2] Subregulation 1.0.02 (1), definition of life office

substitute

"friendly society" has the meaning given by section 16C of the Life Insurance Act 1995 .

[3] Regulations 1.2A.04 and 1.2A.05

omit

[4] Regulation 2B.6.02

substitute

(1)

This regulation applies to a name if:

(a)

the name:

(i)

is the subject of an application for registration of a name under section 117 of the Corporations Law; or

(ii)

is the subject of an application for reservation of a name under section 152 of that Law; or

(iii)

for an application for a change of name under section 157 of the Law — is the name to which the previous name is to be changed; and

(b)

the name is, uses or includes:

(i)

letters, or a word or expression, specified in column 2 of an item in Part 4 or 5 of Schedule 6; or

(ii)

other letters, or another word or expression (whether or not in English), that is of like import to the letters, word or expression specified in the item.

(2)

In paragraph (1) (b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:

(a)

as part of another word or expression; or

(b)

in combination with other words or letters, or other symbols.

(3)

However, this regulation does not apply to use of the letters ADI as part of another word.

Example
The letters adi appear in the word traditional . This regulation does not apply to use of the word traditional .

(4)

If an item in Part 4 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the Minister who is specified in the item.

(5)

If an item in Part 5 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.

[5] Regulation 5B.3.02

substitute

(1)

This regulation applies to a name if:

(a)

the name:

(i)

is the subject of an application for registration of a name under section 601BC, 601CB or 601CE of the Corporations Law; or

(ii)

is the subject of an application for reservation of a name under section 601DA of that Law; or

(iii)

for a notice of change of name under section 601DH of the Law — is the name to which the previous name is to be changed; and

(b)

the name is, uses or includes:

(i)

letters, or a word or expression, specified in column 2 of an item in Part 4 or 5 of Schedule 6; or

(ii)

other letters, or another word or expression (whether or not in English), that is of like import to the letters, word or expression specified in the item.

(2)

In paragraph (1) (b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:

(a)

as part of another word or expression; or

(b)

in combination with other words or letters, or other symbols.

(3)

However, this regulation does not apply to use of the letters ADI as part of another word.

Example
The letters adi appear in the word traditional . This regulation does not apply to use of the word traditional .

(4)

If an item in Part 4 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the Minister who is specified in the item.

(5)

If an item in Part 5 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.

[6] Regulation 5C.11.01

substitute

For paragraph (n) of the definition of managed investment scheme in section 9 of the Corporations Law, an approved benefit fund within the meaning of section 16B of the Life Insurance Act 1995 is not a managed investment scheme.

[7] Paragraphs 7.3.02B (8) (k) and (l)

omit

[8] Subregulation 7.3.02B (10), definition of Friendly Societies Code

omit

[9] After subregulation 7.3.11 (2)

insert

(2A)

Also, subregulation (1) does not apply to a dealing in, or with an interest in, a friendly society benefit fund.

[10] Regulation 7.3.13, heading

substitute

[11] Subregulation 7.3.13 (2)

omit

life office

insert

body corporate (except a friendly society) registered under the Life Insurance Act 1995

[12] After subregulation 7.3.13 (3)

insert

(4)

Divisions 1 and 3 of Part 7.3, and Parts 7.5, 7.6 and 7.7, of the Corporations Law do not have effect in relation to a friendly society that only deals in interests in the friendly society benefit fund.

[13] After regulation 7.3.13

insert

(1)

In this regulation:

Friendly Societies Code of this jurisdiction has the meaning given by clause 1 of Schedule 4 to the Corporations Law.

(2)

This regulation applies in relation to a friendly society that only deals in, or with interests in, a benefit fund of the friendly society.

(3)

A person must not represent a friendly society in relation to dealing in, or with interests in, the friendly society benefit fund unless the person is an individual who was, immediately before the transfer date, authorised:

(a)

in the approved form; or

(b)

under the Friendly Societies Code of this jurisdiction in the prescribed form for that

Code that is endorsed in accordance with paragraphs 184 (a) and (b) of the Code; or

(c)

under a certificate of incorporation of the friendly society under the Friendly Societies Code of this jurisdiction that is endorsed in accordance with paragraphs 184 (a) and (b) of that Code;

to deal in or with the interests as a representative of the society.

Penalty:
10 penalty units.

(4)

However, the person may represent the friendly society if, at the time of the offence, the person reasonably believed that he or she was authorised as a representative of the friendly society.

(5)

For subregulation (3), the friendly society must not authorise a person as a representative of the society if a banning order prohibits the person, except as permitted by the order, from acting as a representative of the society.

(6)

A person must not represent a friendly society in relation to dealing in, or with interests in, the friendly society benefit fund if a banning order prohibits the person, except as permitted by the order, from acting as a representative of the society.

Penalty:
10 penalty units.

A friendly society in relation to which regulation 7.3.13A applies is taken to be a licensee to which the following provisions of the Corporations Law apply:

(a)

sections 810, 811, 812 and 815;

(b)

Division 4 of Part 7.3;

(c)

Division 3 of Part 7.4.

If a person was, immediately before the transfer date, authorised by a friendly society as described in subregulation 7.3.13A (3), the authorisation is taken to be a proper authority to which the following provisions of the Corporations Law apply:

(a)

section 814;

(b)

subsections 816 (1) and (3).

[14] After regulation 7.3.14

insert

Divisions 1 and 3 of Part 7.3, Parts 7.5, 7.6 and 7.7, and section 842, of the Corporations Law do not have effect in relation to:

(a)

a health benefits fund under the National Health Act 1953 ; and

(b)

a superannuation entity within the meaning of the Superannuation Industry (Supervision) Act 1993 .

[15] Subparagraphs 7.12.05 (a) (v), (vi) and (vii)

substitute

(v)

a trustee of a superannuation fund, or an approved deposit fund, with net assets of at least $10,000,000.

[16] After paragraph 7.12.05 (a)

insert

(b)

the issue or allotment of member shares within the meaning given by regulation 12.8.03;

[17] Subparagraphs 7.12.06 (a) (v),(vi) and (vii)

substitute

(v)

a trustee of a superannuation fund, or an approved deposit fund, with net assets of at least $10,000,000.

[18] After paragraph 7.12.06 (b)

insert

(c)

an offer or invitation in relation to a member share within the meaning given by regulation 12.8.03;

[19] After Chapter 11

insert

Chapter 12 Financial sector reform

In this Chapter:

"AFIC" means the Australian Financial Institutions Commission.

"APRA transitional prudential standard" has the meaning given by regulation 11 of the Financial Sector Reform (Amendments and Transitional Provisions) Regulations 1999 .

"Financial Institutions Code" of this jurisdiction has the meaning given by clause 1 of Schedule 4 to the Corporations Law.

"Financial Sector Reform Act" means the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 .

Friendly Societies Code of this jurisdiction has the meaning given by clause 1 of Schedule 4 to the Corporations Law.

"previous governing Code" has the meaning given by clause 1 of Schedule 4 to the Corporations Law.

"replaced legislation" has the meaning given by subitem 22 (7) of Schedule 8 to the Financial Sector Reform Act.

"SSA" (State Supervisory Authority) has the meaning given by clause 1 of Schedule 4 to the Corporations Law.

"transfer date" means the date that is the transfer date for the purposes of the Financial Sector Reform Act.

transferring financial institution of this jurisdiction has the meaning given by clause 1 of Schedule 4 to the Corporations Law.

"transition period" means the period of 18 months starting on the transfer date.

Note
See the definition of Corporations Regulations in s 40A of the Acts Interpretation Act 1901 .

A reference in this Chapter to:

(a)

a previous governing Code; or

(b)

a provision of a previous governing Code; or

(c)

an instrument under a previous governing Code; or

(d)

a provision of an instrument under a previous governing Code;

that is applied by or under this Chapter includes a reference to the Code, provision or instrument as varied or modified by or under this Chapter.

(1)

Subregulation (2) applies to a provision of the following instruments:

(a)

a previous governing Code that is applied by or under a provision of this Chapter;

(b)

an instrument made under a Code mentioned in paragraph (a) that is applied by or under this Chapter;

(c)

an ASIC transitional standard within the meaning of Part 12.7 or an instrument made under a provision of the standard.

(2)

This subregulation applies if there is a reference in the provision to any of the following:

(a)

a word or expression that is defined in the Corporations Law or these Regulations;

(b)

a power exercised by AFIC or an SSA;

(c)

a class of body;

(d)

the rules of a body;

(e)

the accounts, or group accounts, of a body;

(f)

a previous governing Code or a provision of the Code;

(g)

an ASIC transitional standard within the meaning of Part 12.7 or a provision of the standard;

(h)

an APRA transitional prudential standard or a provision of the standard;

(i)

an instrument made under a Code, an ASIC transitional standard, an APRA transitional prudential standard or a provision of the instrument.

(3)

A word or expression that is defined in the Corporations Law or these Regulations applies to each use of the word or expression unless the contrary intention appears.

(4)

A reference to a power exercised by AFIC or an SSA is to be read as if it were a reference to an equivalent power exercised by ASIC under the Corporations Law, these Regulations, another Commonwealth law or an ASIC transitional standard.

(5)

A reference to a class of body is to be read as if it were the comparable class of company after the transition date.

(6)

A reference to the rules of a body is to be read as if it were a reference to the constitution of the body.

(7)

A reference to accounts, or group accounts, of a body is to be read as if it were a reference to a financial report, or consolidated financial statements, of the body.

(8)

A reference to any matter mentioned in subregulation (2) is to be read in a way that:

(a)

is consistent with, and promotes, the transition from the application of a previous governing Code to a transferring financial institution of this jurisdiction to the application to the institution of the Corporations Law and these Regulations; and

(b)

is consistent with the duties, functions and powers of ASIC or an SSA; and

(c)

does not alter the interpretation or operation of the instrument in which the reference appears.

For clause 28 of Schedule 4 to the Corporations Law, this Division modifies the Law in relation to a company registered under clause 3 of Schedule 4 to the Law.

Subsection 123 (1) of the Corporations Law does not apply in relation to the company for the period of 28 days starting on the transfer date.

(1)

Paragraph 169 (1) (b) of the Corporations Law is modified in relation to the company by substituting:

(b)

the date of admission to membership.

(2)

Subsection 169 (5) (which deals with non-beneficial ownership of companies other than listed companies), and subsection 169 (6), of the Corporations Law do not apply to the company.

(3)

Subregulations (1) and (2) cease to apply at the end of the transition period.

Section 144 of the Corporations Law does not apply in relation to the company for the period of 28 days starting on the transfer date.

Section 153 of the Corporations Law does not apply in relation to the company for the period of 12 months starting on the transfer date.

Section 228 of the Corporations Law does not apply in relation to the company for the transition period.

Section 239 of the Corporations Law does not apply in relation to the company for the transition period.

For clause 39 of Schedule 4 to the Corporations Law, if the Friendly Societies Code of this jurisdiction applied to a transferring financial institution of this jurisdiction immediately before the transfer date, the transferring financial institution may lodge with ASIC a document that had been lodged with AFIC at any time before the transfer date under that Code.

(1)

This regulation applies to a notice that:

(a)

is mentioned in paragraph 4 (1) (a) of Schedule 4 to the Corporations Law; and

(b)

is lodged by the SSA for a transferring financial institution of this jurisdiction that was under external administration immediately before the transfer date.

(2)

For paragraph 4 (2) (b) of Schedule 4 to the Corporations Law, the following details are prescribed:

(a)

the name and business address, and the business telephone number and fax number, of the person who is the external administrator when the notice is lodged;

(b)

the date on which the transferring financial institution entered into external administration;

(c)

the provisions under which the transferring financial institution entered into external administration;

(d)

if, when the notice is lodged, the transferring financial institution is being externally administered under provisions other than the provisions under which the institution entered into external administration — the other provisions;

(e)

a copy of any order made by a court in relation to the external administration of the transferring financial institution that the SSA considers is currently relevant to the external administration;

(f)

a copy of any account, report or statement that:

(i)

has been lodged with the SSA by an external administrator of the transferring financial institution in relation to conduct of the administration, the business of the institution or the conduct of the officers of the institution; and

(ii)

the SSA considers is currently relevant to the external administration of the institution.

(1)

For clause 39 of Schedule 4 to the Corporations Law, this regulation applies if a person or body held an appointment, immediately before the transfer date, under a previous governing Code as the auditor of a transferring financial institution.

(2)

Section 324 of the Corporations Law applies to the person or body as if the person or body had been appointed under section 327 of the Law as the auditor of the transferring financial institution.

For clause 28 of Schedule 4 to the Corporations Law, this Part modifies the operation of the Law in relation to a company registered under clause 3 of Schedule 4 to the Law.

Paragraph 3 (4) (b) of Schedule 4 to the Corporations Law applies in relation to the company as if the election mentioned in that paragraph must be lodged not later than 6 weeks after the transfer date.

(1)

This regulation applies to an election lodged in relation to the company in accordance with paragraph 3 (4) (b) of Schedule 4 to the Corporations Law (as modified by regulation 12.3.02).

(2)

Despite subclause 3 (5) of Schedule 4 to the Corporations Law, the company is taken to have become registered on the transfer date as a company of the type specified in the election.

(1)

This regulation applies if:

(a)

the company is taken to have become registered under regulation 12.3.03; and

(b)

ASIC has issued a certificate of registration mentioned in paragraph 7 (1) (c) of Schedule 4 to the Corporations Law in relation to the company as a result of the operation of subclause 3 (5) of that Schedule.

(2)

The certificate of registration is taken to refer to registration of the company as a company of the type specified in the election mentioned in regulation 12.3.03.

(3)

ASIC may issue a replacement certificate of registration to the company.

(4)

If the company is taken to be a company limited by shares, or by shares and guarantee, clause 6 of Schedule 4 to the Corporations Law does not apply subsections 169 (3), (4), (5) and (6) of the Law to the company until the end of 14 days after the day of issue of the replacement certificate of registration.

(1)

For clause 28 of Schedule 4 to the Corporations Law, Parts 2G.2 and 2G.3 of the Law do not apply in relation to a meeting of a company registered under clause 3 of Schedule 4 to the Corporations Law for the period of 6 months starting on the transfer date.

(2)

For clause 39 of Schedule 4 to the Corporations Law, if the Financial Institutions Code of this jurisdiction applied to the transferring financial institution, Division 2 of Part 6 of that Code (except subsections 255 (6), (7) and (8)) continues to apply to the institution for the period of 6 months starting on the transfer date.

(3)

For clause 39 of Schedule 4 to the Corporations Law, if the Friendly Societies Code of this jurisdiction applied to the transferring financial institution, Divisions 3 and 4 of Part 6 of that Code (except subsections 307 (7), (8) and (9)) continue to apply to the institution for the period of 6 months starting on the transfer date.

In this Part:

"relevant transitional instrument" or requirement means:

(a)

an instrument (as in force immediately before the transfer date) that was made by AFIC, or an SSA, under a provision of the replaced legislation in relation to a matter for which ASIC is responsible for which no transitional, saving or application provision applies on that date in:

(i)

the Corporations Law, the Financial Sector Reform Act or another Commonwealth Act; or

(ii)

these Regulations or any other regulations, or another instrument, made under a Commonwealth Act; or

(b)

a requirement under the provisions mentioned in paragraph 272 (1) (a) of the Financial Institutions Code of this jurisdiction; or

(c)

a requirement under the provisions mentioned in paragraph 334 (1) (a) of the Friendly Societies Code of this jurisdiction; or

(d)

the ASIC transitional standards within the meaning of Part 12.7; or

(e)

an instrument made under an instrument or provision mentioned in paragraph (a), (b), (c) or (d).

(1)

For clause 28 of Schedule 4 to the Corporations Law, ASIC may determine that:

(a)

an instrument mentioned in paragraph (a) of the definition of relevant transitional instrument or requirement in regulation 12.5.01 has applied between the transfer date and the date of the determination; and

(b)

an instrument mentioned in paragraph (a) of this subregulation continues to apply from the date of the determination for a period that does not extend beyond the transition period.

(2)

For clause 39 of Schedule 4 to the Corporations Law, ASIC may, by declaration:

(a)

vary or revoke a relevant transitional instrument or requirement, or a determination under subregulation (1), that applies on the day on which the determination is made; or

(b)

modify the application of a relevant transitional instrument or requirement that applies on the day on which the determination is made.

(3)

However, ASIC must not vary or modify a relevant transitional instrument or requirement, or a determination, in relation to an obligation, contravention of which results in the commission of an offence, so as to make it more difficult to comply with the obligation.

(4)

Also, ASIC must consult with APRA before:

(a)

varying or revoking an ASIC transitional standard that is also an APRA transitional prudential standard; or

(b)

modifying the application of an ASIC transitional standard that is also an APRA transitional prudential standard.

(5)

A failure to comply with subregulation (4) does not affect the action taken by ASIC.

A relevant transitional instrument or requirement has effect subject to a determination or declaration that applies to the instrument or requirement.

(1)

If a relevant transitional instrument or requirement to which a determination or declaration relates was, before the transfer date, subject under a previous governing Code to a publication requirement corresponding to publication in the Gazette , the determination or declaration must be published in the Gazette .

(2)

If a relevant transitional instrument or requirement to which a determination or declaration applies was not, before the transfer date, subject under a previous governing Code to a publication requirement corresponding to publication in the Gazette , a copy of the determination or declaration must be:

(a)

given to each transferring financial institution of this jurisdiction to which the relevant transitional instrument or requirement applies; or

(b)

otherwise made available to the institution.

A determination or declaration takes effect on the day stated in the determination or declaration.

(1)

ASIC must take reasonable steps to ensure that copies of the current text of the following relevant transitional instruments or requirements are available for inspection and purchase:

(a)

each provision of an instrument mentioned in paragraph (b) or (c) of the definition of relevant transitional instrument or requirement in regulation 12.5.01 that is the subject of a determination or declaration under subregulation 12.5.02 (1) or (2);

(b)

each ASIC transitional standard.

(2)

A failure to comply with subregulation (1) does not affect the operation of a relevant transitional instrument or requirement.

Subdivision A Preliminary 12.6.01 Definition for Division 1

In this Division, unless the contrary intention appears:

"financial report" includes a directors' report and an auditor's report.

(1)

This Division applies to a transferring financial institution of this jurisdiction, in relation to a financial year ending before the transfer date, if:

(a)

immediately before the transfer date:

(i)

the reporting requirements applied to the transferring financial institution; but

(ii)

the institution had not complied with 1, or more than 1, of the requirements; and

(b)

the institution is not a disclosing entity.

(2)

In subregulation (1):

"reporting requirements", in relation to a transferring financial institution of this jurisdiction, means the requirements under a previous governing Code for the institution:

(a)

to prepare accounts, group accounts, a directors' report and an auditor's report; and

(b)

to lodge those accounts and reports with the SSA for the transferring financial institution; and

(c)

to have the accounts audited; and

(d)

to make the accounts and reports available to members of the institution.

(1)

For clause 39 of Schedule 4 to the Corporations Law, the following provisions of the Financial Institutions Code of this jurisdiction continue to apply in relation to the transferring financial institution:

(a)

sections 268 and 269;

(b)

sections 272 and 273;

(c)

section 274, except subparagraph 274 (1) (a) (ii), paragraph 274 (1) (ab), subparagraph 274 (2) (a) (ii) and paragraph 274 (2) (ab);

(d)

subsection 276 (2);

(e)

subsections 284 (1), (2), (3), (4), (5), (6) and (9).

Note    Subregulation 12.5.02 (2) also relates to paragraph (1) (b).

(2)

For clause 39 of Schedule 4 to the Corporations Law, the following provisions of the Friendly Societies Code of this jurisdiction continue to apply in relation to the transferring financial institution:

(a)

sections 330 and 331;

(b)

sections 334 and 335;

(c)

section 336, except subparagraph 336 (1) (a) (ii), paragraph 336 (1) (b), subparagraph 336 (2) (a) (ii) and paragraph 336 (2) (b);

(d)

subsections 346 (1), (2), (3), (4), (5), (6) and (9);

(e)

subsection 338 (2).

Note
Subregulation 12.5.02 (2) also relates to paragraph (2) (b).

(3)

For clause 28 of Schedule 4 to the Corporations Law, a requirement of a provision of a previous governing Code applying to the transferring financial institution under this regulation is taken to be a requirement applying in the transition period to the institution under Part 2M.3 of the Law.

For clause 39 of Schedule 4 to the Corporations Law, an order granted by the SSA for the transferring financial institution under section 291 of the Financial Institutions Code of this jurisdiction has effect as if the order were made under section 340 or 341, as each case requires, of the Corporations Law.

For clause 28 of Schedule 4 to the Corporations Law, this Subdivision modifies the operation of Part 2M.3 of the Law in relation to a financial report of the transferring financial institution to which the provisions of a previous governing Code apply under Subdivision B.

(1)

The following provisions of Part 2M.3 of the Corporations Law do not apply in relation to the report:

(a)

sections 295 to 300;

(b)

sections 307 and 308;

(c)

section 314;

(d)

subsection 315 (1);

(e)

paragraph 316 (1) (a).

(2)

Paragraph 316 (2) (b) of the Corporations Law applies in relation to the report as if the time for complying with the request of a member of the transferring financial institution for a financial report, is the day on which the report is required to have been prepared.

(3)

Subsection 319 (3) of the Corporations Law applies in relation to the report as if the time for lodgment of the report mentioned in that subsection is no later than the day of the AGM of the transferring financial institution.

If, before the transfer date, the transferring financial institution has lodged with AFIC, or the SSA for the institution, a financial report for a period ending on or before the transfer date, the institution is not required to lodge with ASIC the corresponding financial report for the period under Part 2M.3 of the Corporations Law.

(1)

A reference in Part 2M.3 of the Corporations Law (as modified by this Subdivision) to a financial report, or consolidated financial statements, in relation to the transferring financial institution is to be read as if it were a reference to the accounts, or group accounts, of the institution within the meaning of the previous governing Code.

(2)

A financial report or consolidated financial statements to which Part 2M.3 of the Corporations Law (as modified by this Subdivision) applies in relation to the transferring financial institution may refer to a provision of the previous governing Code corresponding to a provision of the Law or these Regulations.

In this Division:

"applicable accounting requirement" means a requirement of a provision specified in paragraph 272 (1) (a) of the Financial Institutions Code of this jurisdiction.

This Division applies to a company registered under clause 3 of Schedule 4 to the Corporations Law that is a disclosing entity in relation to a financial year or half-year ending before the transfer date.

(1)

For clause 39 of Schedule 4 to the Corporations Law, paragraph 272 (1) (a) of the Financial Institutions Code of this jurisdiction continues to apply in relation to the company.

(2)

For clause 28 of Schedule 4 to the Corporations Law, if, in relation to a period ending before the transfer date, the company complies with the applicable accounting requirements, sections 296 and 304 of the Corporations Law do not apply in relation to the company.

(1)

For clause 28 of Schedule 4 to the Corporations Law, this regulation modifies the operation of the Law.

(2)

Paragraphs 295 (2) (d), (3) (b) and (4) (a) of the Corporations Law apply in relation to the company as if a reference in those paragraphs to accounting standards were a reference to the applicable accounting requirements.

(3)

Subparagraph 295 (4) (d) (i) and paragraph 308 (1) (a) of the Corporations Law apply in relation to the company as if a reference in that subparagraph and that paragraph to section 296 (compliance with accounting standards) were a reference to the applicable accounting requirements.

(4)

Subsections 308 (2) and 309 (2) of the Corporations Law apply in relation to the company as if a reference in those subsections to an accounting standard were a reference to the applicable accounting requirements.

(5)

Paragraph 309 (1) (a) of the Corporations Law applies in relation to the company as if a reference in that paragraph to section 304 (compliance with accounting standards) were a reference to the applicable accounting requirements.

For clause 28 of Schedule 4 to the Corporations Law, the following provisions of Part 2M.3 of the Corporations Law do not apply in relation to a member of the company who only holds a member share (within the meaning of regulation 12.8.03) in the company:

(a)

section 314;

(b)

subsection 315 (1).

(1)

In this regulation:

"member share" has the meaning given by regulation 12.8.03.

(2)

The company must, in the 21 days before the first AGM of the company after the end of each financial year, make available to holders of member shares in the company the following reports:

(a)

the financial report of the company made for the financial year;

(b)

the directors' report made by the directors for the company in that year;

(c)

the auditor's report on the company made for the year.

(3)

The company must make the reports available at the registered office, and each other office, of the company.

In this Part:

"ASIC transitional standard" means:

(a)

a provision of a previous governing Code that is specified in Schedule 12; or

(b)

an instrument made under a provision mentioned in paragraph (a).

"relevant financial institution" means the following bodies:

(a)

a transferring financial institution of this jurisdiction;

(b)

a company that is permitted to use the expression, building society , credit society or credit union under section 66 of the Banking Act 1959 ;

(c)

a friendly society;

(d)

an Australian ADI to which a declaration under regulation 12.7.02 applies.

(1)

This regulation applies, in relation to an Australian ADI, on:

(a)

the initiative of ASIC; or

(b)

application made to ASIC in writing by the ADI or another person.

(2)

ASIC may declare that the Australian ADI conducts financial business of the same kind as the financial business of a transferring financial institution of this jurisdiction that was, immediately before the transfer date, registered as a Special Services Provider under the AFIC Code of this jurisdiction.

(3)

A declaration:

(a)

must be in writing given to the Australian ADI; and

(b)

takes effect when the declaration, or a copy of the declaration, is given to that ADI.

(1)

For clause 39 of Schedule 4 to the Corporations Law, this regulation applies provisions (as modified in this regulation) of a previous governing Code to a relevant financial institution if, immediately before the transfer date, the provisions applied to the institution.

(2)

Subsection 402 (1) of the Financial Institutions Code, and section 79 of the Friendly Societies Code, of this jurisdiction apply to the relevant financial institution as if:

(a)

a reference to a financial body or a society were a reference to the relevant financial institution; and

(b)

a reference to applicable standards were a reference to the ASIC transitional standards.

(3)

However, subsections 255 (6), (7) and (8) of the Financial Institutions Code of this jurisdiction apply in relation to a special resolution of the relevant financial institution that amends a provision of the constitution of the institution that would, directly or indirectly, affect:

(a)

the operation of an exempt stock market; or

(b)

the timely disclosure of information to holders or potential holders of securities traded on an exempt stock market.

(4)

Subsections 255 (6), (7) and (8) of the Financial Institutions Code of this jurisdiction apply for the purposes of subregulation (3) as if:

(a)

a reference to society were a reference to the relevant financial institution; and

(b)

a reference to financial institutions legislation were a reference to the Corporations Law and the Corporations Regulations; and

(c)

a reference to standards were a reference to the ASIC transitional standards.

(1)

For clause 39 of Schedule 4 to the Corporations Law and subject to this Division, the ASIC transitional standards:

(a)

continue to apply in relation to a transferring financial institution of this jurisdiction to the extent that the standards applied to the institution immediately before the transfer date; and

(b)

apply in relation to a relevant financial institution of a kind mentioned in paragraph (b) or (c) of the definition of that expression in regulation 12.7.01 to the extent that the standards applied to an institution of that kind immediately before the transfer date; and

(c)

apply in relation to an Australian ADI to which a declaration under regulation 12.7.02 applies to the extent that the standards applied to Australian ADIs immediately before the transfer date.

(2)

However, Prudential Standard 6.8.3, as applied by subregulation (1), does not authorise ASIC to grant an exemption.

Note
Regulation 12.7.05 authorises ASIC to make a declaration having the effect of an exemption to which Prudential Standard 6.8.3 relates.

(1)

This regulation applies, in the circumstances to which Prudential Standard 6.8.3 referred immediately before the transfer date, on:

(a)

the initiative of ASIC; or

(b)

application made to ASIC in writing by a person to whom Division 3 of Part 7.3 of the Corporations Law, or regulation 7.3.13A or 7.3.13B, applies or another person.

(2)

ASIC may, by Gazette notice, declare:

(a)

that Division 3 of Part 7.3 of the Corporations Law, or regulation 7.3.13A or 7.3.13B, does not apply to a person to whom the declaration applies; and

(b)

that a provision mentioned in paragraph (a) applies to a person to whom the declaration applies as if the provision were modified in accordance with the declaration.

(3)

Division 3 of Part 7.3 of the Corporations Law, and regulations 7.3.13A and 7.3.13B, apply subject to a declaration applying in relation to that Division or regulation.

(4)

A declaration:

(a)

may be made subject to a condition stated in the exemption; and

(b)

takes effect on the day on which it is published.

In this Part:

"member share" has the meaning given by regulation 12.8.03.

This Part applies to a body corporate that is:

(a)

a transferring financial institution of this jurisdiction; and

(b)

a company that is permitted to use the expression, building society , credit society or credit union under section 66 of the Banking Act 1959 .

(1)

A share in the body corporate to which subregulation (2) or (3) applies is a member share .

(2)

This subregulation applies if the share:

(a)

is not an ED security; and

(b)

has a fixed value; and

(c)

is held by a single person, or several persons jointly; and

(d)

entitles the holder, or joint holders, to use services provided by the body corporate; and

(e)

is not transferable or transmissible, or is only transferable or transmissible to a person or body specified in the rules or constitution of the body corporate in circumstances stated in the rules or constitution.

(3)

This subregulation applies if:

(a)

the share is taken to have been issued under paragraph 12 (1) (b), (c) or (d) of Schedule 4 to the Corporations Law; or

(b)

that Law applies to the share under clause 15 of that Schedule; or

(c)

the share is declared under regulation 12.8.04 to be a member share; or

(d)

the share is issued under regulation 12.8.11 or 12.8.12.

(1)

This regulation applies, in relation to a share in the body corporate, on:

(a)

the initiative of ASIC; or

(b)

application made to ASIC in writing by the body corporate or another person.

(2)

ASIC may declare in writing that shares are, or are not, member shares of the body corporate.

(3)

The declaration takes effect when the declaration, or a copy of the declaration, is given to the body corporate.

For clause 38 of Schedule 4 to the Corporations Law, Part 2H.6 of the Law does not apply in relation to a member share of the body corporate.

(1)

For clause 38 of Schedule 4 to the Corporations Law, the Law is modified in accordance with this regulation.

(2)

The register of members that is mentioned in subsection 169 (1) of the Corporations Law may have a separate part for members of the body corporate who hold member shares.

(3)

Section 173 of the Corporations Law is modified in relation to the body corporate by inserting after subsection 173 (1):

(1A)

However, a body corporate mentioned in regulation 12.8.02 of the Corporations Regulations may, before allowing a person to inspect the part of the register for members of the body corporate who hold member shares, require the person to agree in writing with the body that the person will only:

(a)

divulge information obtained by the person from inspecting the register to a person who is, or to persons who are, specified in the agreement; or

(b)

use information obtained by the person from inspecting the register for a purpose that is, or purposes that are, specified in the agreement.

(1B)

Also, the body corporate may refuse to allow a person to inspect the part of the register for members of the body who hold member shares if the body is not satisfied that:

(a)

the person is a member of the body who intends to call a meeting of members, or of particular members, of the body; or

(b)

the person proposes to inspect the register for a purpose that is approved in writing by ASIC:

(i) on its own initiative; or
(ii) on the written application of the person or of another person.

(4)

Section 173 of the Corporations Law is modified in relation to the body corporate by inserting after subsection 173 (3):

(3A)

However, a body corporate mentioned in regulation 12.8.02 of the Corporations Regulations may, before giving a person a copy of the part of the register for members of the body corporate who hold member shares, require the person to agree in writing with the body that the person will only:

(a)

give the original copy, or a copy of that original, to a person who is, or to persons who are, specified in the agreement; or

(b)

use information obtained from that part of the register for a purpose that is, or purposes that are, specified in the agreement.

(3B)

Also, the body corporate may refuse to give a person a copy of the part of the register for members of the body who hold member shares if the body is not satisfied that:

(a)

the person is a member of the body who intends to call a meeting of members, or of particular members, of the body; or

(b)

the person proposes to use information obtained from that part of the register for a purpose that is approved in writing by ASIC:

(i) on its own initiative; or
(ii) on the written application of the person or of another person.

(5)

In subregulations (3) and (4), a reference to the part of the register for members of a body corporate who hold member shares includes a reference to:

(a)

the register of members of the body corporate that is a company limited by guarantee; and

(b)

the register of members of the body corporate limited by shares and guarantee who do not hold shares in the body.

For clause 38 of Schedule 4 to the Corporations Law, item 8 in the table set out in section 348 of the Corporations Law does not apply in relation to a member of the body corporate holding only a member share, or member shares, in the body.

For clause 38 of Schedule 4 to the Corporations Law, sections 1086 and 1096 of the Law do not apply in relation to a member share of the body corporate.

(1)

For clause 38 of Schedule 4 to the Corporations Law, section 1343 of the Law does not apply in relation to a member share of the body corporate.

(2)

For clause 38 of Schedule 4 to the Corporations Law, the constitution of the body corporate may provide that if a member share is cancelled, and the value of the share is transferred, the value of the share is to be treated as unclaimed moneys held by the body corporate.

In this Division:

"transferring building society" means a transferring financial institution of this jurisdiction mentioned in paragraph (a) of the definition of transferring financial institution of this jurisdiction in clause 1 of Schedule 4 to the Corporations Law.

"transferring credit union" means a transferring financial institution of this jurisdiction mentioned in paragraph (b) of the definition of transferring financial institution of this jurisdiction in clause 1 of Schedule 4 to the Corporations Law.

(1)

A transferring building society that is a company limited by shares may issue a share in the company giving the holder of the share the same rights and obligations in relation to the share as the holder of a membership share in the building society that is taken to have been issued on the transfer date under clause 12 of Schedule 4 to the Corporations Law has in relation to that share.

(2)

However, the transferring building society must not issue the share if its constitution has been modified under paragraph 24 (1) (c) of Schedule 4 to the Corporations Law.

(3)

The provisions of the Corporations Law that apply in relation to the issue of a share in a company limited by shares that is not issued under this regulation also apply to a share that is issued under this regulation for all matters that are not dealt with in subregulations (1) and (2).

(4)

This regulation does not affect:

(a)

the capacity of a transferring building society to issue shares in the company otherwise than under this regulation; or

(b)

a share issued otherwise than under this regulation.

(1)

A transferring credit union that is a company limited by shares may issue a share in the company that:

(a)

is redeemable on the same terms as a withdrawable share in the credit union was withdrawable immediately before the transfer date; and

(b)

otherwise gives the same rights to, and imposes the same obligations on, the holder of the share as the holder of a withdrawable share in the credit union had in relation to that share immediately before the transfer date.

(2)

However, the transferring credit union must not issue the share if its constitution has been modified under paragraph 24 (1) (c) of Schedule 4 to the Corporations Law.

(3)

The provisions of the Corporations Law that apply in relation to the issue of a share in a company limited by shares that is not issued under this regulation also apply to a share that is issued under this regulation for all matters that are not dealt with in subregulations (1) and (2).

(4)

This regulation does not affect:

(a)

the capacity of a transferring credit union to issue shares in the company otherwise than under this regulation; or

(b)

a share issued otherwise than under this regulation.

For clause 39 of Schedule 4 to the Corporations Law, this Part applies if, immediately before the transfer date, a transferring financial institution of this jurisdiction was being wound up under a law other than the previous governing Code.

(1)

The law in force in this jurisdiction, before the commencement of the previous governing Code, that applied to the winding up of the transferring financial institution ( the relevant law ) continues to so apply on and after the transfer date as if that Code, and the Corporations Law, had not been enacted.

(2)

However, for this regulation, a reference in the relevant law to the Registrar is read as if it were a reference to ASIC.

(3)

Information about the transferring financial institution given to ASIC in a notice mentioned in regulation 12.2.09, or under the relevant law, is taken to be information given to ASIC in relation to the performance of its functions or the exercise of its powers under a national scheme law of this jurisdiction.

(4)

In subregulation (3):

"national scheme law of this jurisdiction" has the meaning given by section 5 of the ASC Law.

(1)

Despite regulation 12.7.02, this regulation applies if the transferring financial institution had not been deregistered before the transfer date as a result of being wound up.

(2)

Sections 601AB, 601AC, 601AD, 601AE, 601AF, 601AG and 601AH of the Corporations Law apply to the deregistration of the transferring financial institution.

[20] Schedule 6, Part 2, subparagraph 6203 (b) (i)

omit

Schedule 6

insert

Part 3,

[21] Schedule 6, Part 2, paragraph 6204 (a)

omit

item 3, 9, 10,

insert

item 9,

[22] Schedule 6, Part 3, item 6303

omit

[23] Schedule 6, Part 3, item 6310

omit

[24] Schedule 6, Part 3, item 6312

after

Friendly Society

insert

(other than in relation to the conduct of a financial business)

[25] Schedule 6, Part 4, item 6402

omit

[26] Schedule 6, after Part 4

insert

Part 5 Names relating to financial institutions for use of which consent is required

[27] Schedule 9A, items 2 and 3

omit

[28] After Schedule 11

insert

(regulation 12.7.01)

1. The following provisions of Book 3 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:

(a)

the modification of the accounting standard known as Accounting Standard AASB 1032 (published in the Gazette on 12 December 1996) by Prudential Standard 3.3.1, except the definition of deposits added to the accounting standard by the Prudential Standard;

(b)

Prudential Standard 3.5.4;

(c)

Prudential Standard 3.5.5;

(d)

Prudential Standard 3.7.1;

(e)

Prudential Standard 3.7.4;

(f)

Prudential Standard 3.7.5.

2. The following provisions of Book 4 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:

(a)

the modification of the accounting standard known Accounting Standard AASB 1032 (published in the Gazette on 12 December 1996) by Prudential Standard 4.3.1, except the definition of deposits added to the accounting standard by the Prudential Standard;

(b)

Prudential Standard 4.7.1;

(c)

Prudential Standard 4.7.4;

(d)

Prudential Standard 4.7.5.

3. The following provisions of Book 5 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:

(a)

Prudential Standard 5.5.1;

(b)

Prudential Standard 5.5.3;

(c)

Prudential Standard 5.5.4.

4. The following provisions of Book 6 of the Prudential Notes and Prudential Standards issued by AFIC under Part 4 of the AFIC Code of this jurisdiction, as in force immediately before the transfer date:

(a)

Prudential Standard 6.7.2;

(b)

Prudential Standard 6.7.4;

(c)

Prudential Standard 6.7.5;

(d)

Prudential Standard 6.8.3.