THE CORPORATIONS LAW

CHAPTER 8 - THE FUTURES INDUSTRY

PART 8.2 - FUTURES EXCHANGES, CLEARING HOUSES AND FUTURES ASSOCIATIONS

Division 4 - General

SECTION 1138   ORDERLY MARKETS IN FUTURES CONTRACTS - POWERS OF COMMISSION  

1138(1)  [Direction to futures exchange]  

Subject to subsections (2) and (6), the Commission may, in relation to a futures market of a futures exchange, give a direction in writing to the futures exchange:

(a)  to close the futures market;

(b)  to suspend dealing on the futures market in a specified class of futures contracts;

(c)  to limit transactions on the futures market to the closing out of futures contracts;

(d)  to defer for a specified period the completion date for all futures contracts, or for a specified class of futures contracts, made on the futures market;

(e)  to cause a specified futures contract made on the futures market, or each futures contract included in a specified class of futures contracts so made, to be:

(i) closed out forthwith as the result of the matching up of the futures contract with a futures contract of the same kind whose price or value is equal to a price or value determined by the futures exchange; or

(ii) invoiced back to a specified date at a price or value determined by the futures exchange;

(f)  to require a futures contract made on the futures market, or each futures contract included in a specified class of futures contracts so made, to be discharged by:

(i) the tendering of a merchantable lot of a commodity determined by the futures exchange, being a commodity of a quality or standard that is:

(A) different from the quality or standard of the commodity specified in the futures contract; and

(B) determined by the futures exchange; and

(ii) the tendering of a price adjusted by an amount that is:

(A) appropriate having regard to the quality or standard of the commodity referred to in subparagraph (i); and

(B) determined by the futures exchange; or

(g)  to require a member of the futures exchange to act in a specified manner in relation to dealings in futures contracts on the futures market, or in relation to a specified class of such dealings.

1138(2)  [Preconditions to giving of direction]  

The Commission shall not give a direction under subsection (1) in relation to a futures market of a futures exchange unless:

(a)  it has determined that a direction should be so given because it is of the opinion that:

(i) subsection 1137(1) has not been complied with in relation to that futures market;

(ii) it is necessary to protect the interests of persons on behalf of whom futures contracts are or may be dealt with on that futures market; or

(iii) it would be in the public interest for a direction to be so given;

(b)  it has given to the futures exchange a notice in writing stating that it has formed that opinion and specifying:

(i) its reasons for forming that opinion;

(ii) the direction that it considers should be so given; and

(iii) a time, or a date and time, before which it will not so give the direction;

(c)  it has given a copy of the notice to each clearing house for that futures market; and

(d)  the direction is so given after the time, or date and time, as the case may be, specified pursuant to subparagraph (b)(iii).

1138(3)  [Commission to consult exchange and clearing house]  

The Commission shall, before determining in relation to a futures market of a futures exchange as mentioned in paragraph (2)(a), consult the futures exchange and each clearing house for that futures market.

1138(4)  [Effect of failure to consult]  

A failure by the Commission to comply with subsection (3) does not affect the validity of:

(a)  a determination under paragraph (2)(a); or

(b)  a direction given under subsection (1) pursuant to such a determination.

1138(5)  [Commission's duty after giving notice]  

The Commission shall, as soon as practicable after giving a notice under paragraph (2)(b) in relation to a futures market of a futures exchange:

(a)  give to the Minister a copy of the notice and a written report setting out the reasons for the giving of the notice;

(b)  give a copy of the report to the futures exchange; and

(c)  give a copy of the report to each clearing house for that futures market.

1138(6)  [Circumstances when direction not to be given]  

The Commission shall not give a direction under subsection (1) in relation to a futures market of a futures exchange if:

(a)  the Minister has directed the Commission not to give the direction; or

(b)  the futures exchange has acted as if the direction had been given.

1138(7)  [Commission's duty after giving direction]  

The Commission shall, as soon as practicable after giving a direction under subsection (1) in relation to a futures market of a futures exchange:

(a)  give to the Minister a copy of the direction; and

(b)  give to each clearing house for that futures market:

(i) a copy of the direction; and

(ii) a direction in writing prohibiting the clearing house from acting in a manner inconsistent with, and requiring the clearing house to do all that it is reasonably capable of doing to give effect to, the direction under subsection (1) while the last-mentioned direction remains in force.

1138(8)  [Minister may determine duration of direction]  

The Minister may determine in writing the period throughout which a particular direction under subsection (1) is to remain in force.

1138(9)  [Duration of direction]  

A direction given under subsection (1) remains in force:

(a)  in a case where a determination under subsection (8) is in force - throughout the period specified in the determination; or

(b)  in any other case - unless sooner revoked, until the end of the period of 21 days, or such shorter period (if any) as is specified in the direction, commencing when the direction is given.

1138(10)  [Futures exchange to comply with direction]  

A futures exchange shall not, while a direction given under subsection (1) in relation to a futures market of the futures exchange remains in force, fail to comply with the direction.

1138(11)  [Clearing house to comply with direction]  

A clearing house for a futures exchange shall not fail to comply with a direction given to the clearing house under subparagraph (7)(b)(ii).

1138(12)  [Methods of giving a document]  

A document may be given to a person under this section by sending to the person, by telegraph, telex, facsimile service or other similar means of communication, a message to the effect of the document.

1138(13)  [Transition]  

Where, immediately before the commencement of this section:

(a)  a direction was in force under a previous law corresponding to subsection (1); or

(b)  a determination was in force under a previous law corresponding to subsection (8);

the direction or determination has effect after that commencement:

(c)  as if it had been given or made under that subsection; and

(d)  with such modifications as the circumstances require.