Corporations Act 2001
[ CCH Note: Pt 9.1A will be inserted by No 69 of 2020, s 3, Sch 2[11] (effective 22 June 2022 or a day or days to be fixed by Proclamation). Pt 9.1A will read:
PART 9.1A - DIRECTOR IDENTIFICATION NUMBERS
SECTION 1272 GIVING AND CANCELLING DIRECTOR IDENTIFICATION NUMBERS
1272(1)
The Registrar must, by notifying a person who has applied under section 1272A , give the person a director identification number if the Registrar is satisfied that the person ' s identity has been established.
1272(2)
The Registrar must make a record of the person ' s director identification number.
1272(3)
The Registrar may, by notifying a person, cancel the person ' s director identification number if:
(a) the Registrar is no longer satisfied that the person ' s identity has been established; or
(b) the Registrar has given the person another director identification number.
1272(4)
If:
(a) at the time the person is given a director identification number under this section, the person is not an eligible officer; and
(b) the person does not, within 12 months after that time, become an eligible officer;the person ' s director identification number is taken to have been cancelled at the end of the 12 month period.
SECTION 1272A APPLYING FOR A DIRECTOR IDENTIFICATION NUMBER
1272A(1)
An eligible officer may apply to the Registrar for a director identification number if the officer does not already have a director identification number.
1272A(2)
The Registrar may direct an eligible officer to apply to the Registrar for a director identification number (whether or not the officer already has a director identification number).
1272A(3)
A person who is not an eligible officer may apply to the Registrar for a director identification number if:
(a) the person intends to become an eligible officer within 12 months after applying; and
(b) the person does not already have a director identification number.
1272A(4)
An application for a director identification number must meet any requirements of the data standards.Note: A person may commit an offence if the person knowingly gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code ).
SECTION 1272B ELIGIBLE OFFICERS
1272B(1)
An eligible officer is:
(a) a director of a company, or of a body corporate that is a registered Australian body or registered foreign company, 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 that position; or
(b) any other officer of a company, or of a body corporate that is a registered Australian body or registered foreign company, who is an officer of a kind prescribed by the regulations;but does not include a person covered by a determination under subsection (2) or (3).
1272B(2)
The Registrar may determine that a particular person is not an eligible officer . The Registrar must notify the person of the determination.
1272B(3)
The Registrar may, by legislative instrument, determine that a class of persons are not eligible officers . SECTION 1272C REQUIREMENT TO HAVE A DIRECTOR IDENTIFICATION NUMBER
1272C(1)
An eligible officer must have a director identification number.
1272C(2)
Subsection (1) does not apply if:
(a) the officer applied to the Registrar under section 1272A for a director identification number:
(i) before the day the officer first became an eligible officer (or an eligible officer within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ); or
(ii) if the regulations specify an application period - within that period, starting at the start of that day; or
(iii) within the longer period (if any) the Registrar allows under section 1272E , starting at the start of that day; and
(b) the application, and any reviews arising out of it, have not been finally determined or otherwise disposed of.Note: A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code .
1272C(3)
Subsection (1) does not apply if the officer became an eligible officer without the officer ' s knowledge.Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .
1272C(4)
An offence based on subsection (1) is an offence of strict liability.Note: For strict liability , see section 6.1 of the Criminal Code .
1272C(5)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (5) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .
SECTION 1272D REQUIREMENT TO APPLY FOR A DIRECTOR IDENTIFICATION NUMBER
1272D(1)
An eligible officer whom the Registrar has directed under subsection 1272A(2) to apply for a director identification number must apply to the Registrar under section 1272A for a director identification number:
(a) within the application period under subsection (2) of this section; or
(b) within such longer period as the Registrar allows under section 1272E .
1272D(2)
The application period is the period of:
(a) the number of days specified in the direction; or
(b) if the number of days is not specified in the direction - 28 days;after the day the Registrar gives the direction.
1272D(3)
An offence based on subsection (1) is an offence of strict liability.Note: For strict liability , see section 6.1 of the Criminal Code .
1272D(4)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (3) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .
SECTION 1272E REGISTRAR MAY EXTEND APPLICATION PERIODS
1272E(1)
The Registrar may, on the application of an eligible officer, allow, as a longer period for applying to the Registrar under section 1272A for a director identification number:
(a) the period specified in the application; or
(b) such other period as the Registrar considers reasonable.Note: An application for an extension of the period for applying can be made, and the period can be extended, after the period has ended: see section 70 .
1272E(2)
The Registrar may, by legislative instrument, allow, for persons included in a specified class of persons, a longer period for applying to the Registrar under section 1272A for a director identification number. SECTION 1272F INFRINGEMENT NOTICES
1272F(1)
Subsections 1272C(1) and 1272D(1) are subject to an infringement notice under Part 5 of the Regulatory Powers Act.Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
1272F(2)
For the purposes of Part 5 of the Regulatory Powers Act, each member of the staff of the Registrar who holds, or is acting in, an office or position that is equivalent to an SES employee is an infringement officer in relation to subsections 1272C(1) and 1272D(1) of this Act. Relevant chief executive
1272F(3)
For the purposes of Part 5 of the Regulatory Powers Act, the relevant chief executive in relation to subsections 1272C(1) and 1272D(1) of this Act is:
(a) the person specified as the relevant chief executive in the Registrar ' s instrument of appointment under section 1270 ; or
(b) if there is no person specified - the Registrar. Matters to be included in an infringement notice
1272F(4)
Subparagraph 104(1)(e)(iii) of the Regulatory Powers Act applies to an infringement notice relating to a contravention of subsection 1272C(1) or 1272D(1) of this Act as if that subparagraph did not require the notice to give details of the place of the contravention. SECTION 1272G APPLYING FOR ADDITIONAL DIRECTOR IDENTIFICATION NUMBERS
1272G(1)
A person must not apply for a director identification number if the person knows that the person already has a director identification number.Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .
1272G(2)
Subsection (1) does not apply if the Registrar directed the person under subsection 1272A(2) to make the application.Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
1272G(3)
Subsection (1) does not apply if the person purports to make the application only in relation to Part 6-7A of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .
1272G(4)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (4) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .
SECTION 1272H MISREPRESENTING DIRECTOR IDENTIFICATION NUMBERS
1272H(1)
A person must not intentionally represent to a Commonwealth body, company or registered body, as the director identification number of the person or another person, a number that is not that director identification number.Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .
1272H(2)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (2) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .]
Where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:
(a) a contravention of this Act; or
(b) attempting to contravene this Act; or
(c) aiding, abetting, counselling or procuring a person to contravene this Act; or
(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act; or
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or
(f) conspiring with others to contravene this Act;
the Court may, on the application of ASIC, or of a person whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the Court thinks appropriate, restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.
1324(1A) [ Affected interests: deeming provisions]For the purposes of subsection (1):
(a) a contravention of this Act affects the interests of a creditor or member of a company if the insolvency of the company is an element of the contravention; and
(b) a company's contravention of:
(i) paragraph 257A(1)(a) (share buy-back not to prejudice ability to pay creditors); or
(ia) paragraph 256B(1)(b) (share capital reduction not to prejudice ability to pay creditors); or
affects the interests of a creditor or member of the company; and
(ii) paragraph 260A(1)(a) (financial assistance for share acquisition not to prejudice company or shareholders or ability to pay creditors);
(c) a company's contravention of paragraph 256B(1)(a) (fair and reasonable test for share capital reduction) affects the interests of a member of the company.
This subsection does not limit subsection (1) in any way.
1324(1B) [ Presumption]If the ground relied on in an application for an injunction is conduct or proposed conduct of a company or other person that it is alleged constitutes, or would constitute:
(a) a contravention of paragraph 256B(1)(a) or (b), section 257A or paragraph 260A(1)(a); or
(b) a contravention of a provision of this Act involving the insolvency of the company because of:
(i) the company making a reduction of its share capital to which Division 1 of Part 2J.1 applies; or
(ii) the company buying back its shares; or
(iii) the company giving financial assistance to which Part 2J.3 applies;
the Court must assume that the conduct constitutes, or would constitute, a contravention of that paragraph, section or provision unless the company or person proves otherwise.
1324(2) [ Court may grant injunction requiring action to be done]Where a person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the person is required by this Act to do, the Court may, on the application of:
(a) ASIC; or
(b) any person whose interests have been, are or would be affected by the refusal or failure to do that act or thing;
grant an injunction, on such terms as the Court thinks appropriate, requiring the first-mentioned person to do that act or thing.
1324(3) [ Injunction by consent]Where an application for an injunction under subsection (1) or (2) has been made, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that that subsection applies.
1324(4) [ Interim injunction]Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).
1324(5) [ Discharge or variation of injunction]The Court may discharge or vary an injunction granted under subsection (1), (2) or (4).
1324(6) [ Whether or not person intends to engage in conduct]The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. 1324(7) [ Whether or not person intends to refuse or fail to act]
The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing. 1324(8) [ No undertaking as to damages]
Where ASIC applies to the Court for the grant of an injunction under this section, the Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.
1324(9) [ Orders]In proceedings under this section against a person the Court may make an order under section 1323 in respect of the person.
1324(10) [ Damages]Where the Court has power under this section to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do a particular act or thing, the Court may, either in addition to or in substitution for the grant of the injunction, order that person to pay damages to any other person.
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