THE CORPORATIONS LAW

CHAPTER 1 - INTRODUCTORY

PART 1.1 - PRELIMINARY

SECTION 1   CITATION  

1    This Law may be referred to as the Corporations Law.

SECTION 2   COMMISSION HAS GENERAL ADMINISTRATION OF THIS LAW  

2    Subject to the ASIC Law of this jurisdiction, the Commission has the general administration of the Corporations Law of this jurisdiction.

SECTION 3   APPLICATION TO THE CROWN  (Repealed by No 110 of 1990, Sch 1 (effective 18 December 1990).)

SECTION 4   EXTENSION TO EXTERNAL TERRITORIES  (Repealed by No 110 of 1990, Sch 1 (effective 18 December 1990).)

SECTION 5   COMMISSION HAS GENERAL ADMINISTRATION OF ACT  (Repealed by No 110 of 1990, Sch 1 (effective 18 December 1990).)

PART 1.2 - INTERPRETATION

Division 1 - General

SECTION 6   EFFECT OF THIS PART  

6(1)  (Effect unless contrary intention)  

The provisions of this Part have effect for the purposes of this Law, except so far as the contrary intention appears in this Law.

6(2)  (Reference to person or body corporate)  

This Part applies for the purposes of:

(a)  Part 5.7;

(b)  Chapter 5 as applying by virtue of Part 5.7; and

(c)  Part 9.2;

as if a reference in this Part to a person or to a body corporate included a reference to a Part 5.7 body.

6(3)  (Body corporate)  

This Part applies for the purposes of Chapter 6 as if a reference in this Part to a body corporate included a reference to a Chapter 6 body.

6(4)  (Continued application of unamended Part)  

Where, because of Part 11.2, provisions of this Law, as in force at a particular time, continue to apply:

(a)  in relation to someone or something; or

(b)  for particular purposes;

then, for the purposes of those provisions as so applying:

(c)  this Part as in force at that time continues to have effect; and

(d)  this Part as in force at a later time does not have effect.

SECTION 7   LOCATION OF OTHER INTERPRETATION PROVISIONS  

7(1)  (Location of interpretation provisions)  

Most of the interpretation provisions for this Law are in this Part.

7(2)  (Chapters 6, 7 and 8)  

However, interpretation provisions relevant only to Chapters 6, 7 and 8, respectively, are to be found at the beginning of those Chapters.

7(3)  [Interpretation of Parts, Divisions or Subdivisions]  

Also, interpretation provisions relevant to a particular Part, Division or Subdivision may be found at the beginning of that Part, Division or Subdivision.

7(4)  [Interpretation of individual sections]  

Occasionally, an individual section contains its own interpretation provisions, not necessarily at the beginning.

SECTION 8   HOW TO READ REFERENCES TO PROVISIONS OF THIS LAW  

8(1)  [Single national Corporations Law]  

The object of this section is to help ensure that the Corporations Law of this jurisdiction operates, so far as possible, as if that Law, together with the Corporations Law of each jurisdiction other than this jurisdiction, constituted a single national Corporations Law applying of its own force throughout Australia.

8(2)  [Reference to this Law]  

A reference to this Law is a reference to this Law or the Corporations Law of another jurisdiction.

8(3)  [Corresponding provisions included]  

A reference to a provision of this Law is a reference to that provision or the corresponding provision of the Corporations Law of another jurisdiction.

8(4)  [Exceptions]  

Subsections (2) and (3) have effect:

(a)  except so far as the contrary intention appears or the context otherwise requires; and

(b)  except as prescribed.

8(5)  [Where subsec (2) and (3) not to apply]  

Without limiting subsection (4):

(a)  subsection (2) does not apply in relation to a reference to this Law that is expressed as a reference to the Corporations Law of this jurisdiction; and

(b)  subsection (3) does not apply in relation to a reference to a provision of this Law that is expressed as a reference to that provision of the Corporations Law of this jurisdiction; and

(c)  neither subsection (2) nor (3) applies to a reference in:

(i) this section; or

(ii) section 8A, 58, 58A or 58B; or

(iii) Division 9, 10 or 11 of this Part; or

(iv) Part 1.3; or

(v) Chapter 2A (except subsection 113(3)); or

(vi) Chapter 2E (except subsection 213(2)); or

(vii) Chapter 2K (except section 273); or

(viii) Part 5B.1 or Part 5B.2 (except section 601CX); or

(ix) Part 5.7; or

(ixa) Chapter 5C; or

(x) Division 2 of Part 7.3; or

(xi) section 703; or

(xii) Division 3 or 4 of Part 7.11; or

(xiii) (Repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998)

(xiv) Division 2 of Part 8.3; or

(xv) Part 9.10 or 11.1.

SECTION 8A   CORPORATIONS REGULATIONS, AND APPLICATION ORDERS, OF A JURISDICTION TREATED AS PART OF THAT JURISDICTION'S CORPORATIONS LAW  

8A(1)  [Reference is inclusive]  

Except in subsection 8(3) or Part 1.3, a reference to this Law includes a reference to the regulations and the application orders.

8A(2)  [Reference in Pt 1.3]  

A reference in Part 1.3 to this Law includes a reference to the regulations.

8A(3)  [Corporations Law of a jurisdiction]  

Subject to this section, a reference to the Corporations Law of a jurisdiction includes a reference to:

(a)  the Corporations Regulations of that jurisdiction; and

(b)  the application orders under section 111A of that Law.

8A(4)  [Application orders in force under this Law]  

A reference to a provision of this Law includes a reference to the application orders (if any) in force for the purposes of that provision.

8A(5)  [Application orders in force under a jurisdiction's Corporations's Law]  

A reference to a provision of the Corporations Law of a jurisdiction includes a reference to the application orders (if any) under section 111A of that Law that are in force for the purposes of the first-mentioned provision.

8A(6)  [References in this section]  

No earlier subsection of this section applies in relation to a reference in this section.

SECTION 9   DICTIONARY  

9    Unless the contrary intention appears:

A

``AASB'' means the Australian Accounting Standards Board.

[``abbreviation''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``Account'' means the Companies Unclaimed Money Account established by section 71 of the Corporations Act 1989;

[``accounting period''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

[``accounting records''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

``accounting standard'' means:

(a)  an instrument in force under section 334; or

(b)  a provision of such an instrument as it so has effect;

[``accounts''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

``ACN'' (short for ``Australian Company Number'') is the number given by ASIC to a company on registration (see sections 118 and 601BD);

``acquire'' :

(a)  in relation to a futures contract - has the meaning given by sections 23, 26, 27 and 28;

(b)  in relation to shares - has, in Chapter 7, the meaning given by subsection 51(1);

(c)  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

``act'' includes thing;

``Act'' means:

(a)  except in relation to a jurisdiction - an Act of the Commonwealth; and

(b)  in relation to a jurisdiction:

(i) in the case of a State - an Act passed by the Parliament of that State; or

(ii) in the case of the Northern Territory - an Act of the Northern Territory; or

(iii) in the case of the Capital Territory - an Act or Ordinance of the Capital Territory;

``adjustment agreement'' means a standardised agreement the effect of which is that:

(a)  a particular person will either be under a Chapter 8 obligation to pay, or will have a Chapter 8 right to receive, an amount of money;

(b)  whether the person will be under such an obligation to pay, or will have such a right to receive, the amount of money will depend on a particular state of affairs existing at a particular future time, including, without limiting the generality of the foregoing, a state of affairs that relates to fluctuations in the value or price of a commodity or other property, or in an index or other factor; and

(c)  the amount of money will be calculated in a particular manner by reference to that state of affairs;

whether or not the agreement has any other effect or is capable of being varied or discharged before that future time;

``administration'' , in relation to a body corporate, has, in the case of a company or recognised company, the meaning given by:

(a)  section 435C or a corresponding law; and

(b)  section 1381 or a corresponding law;

``administrator'' :

(a)  in relation to a body corporate but not in relation to a deed of company arrangement:

(i) means an administrator of the body appointed under Part 5.3A; and

(ii) hasa meaning affected by section 1381; and

(iii) if 2 or more persons are appointed under that Part as administrators of the body - has a meaning affected by paragraph 451A(2)(b); or

(b)  in relation to a deed of company arrangement:

(i) means an administrator of the deed appointed under Part 5.3A; and

(ii) if 2 or more persons are appointed under that Part as administrators of the deed - has a meaning affected by paragraph 451B(2)(b);

``admit to quotation'' : securities are `` admitted to quotation '' on a stock market of a securities exchange if the exchange has given unconditional permission for quotation of the securities on the stock market;

``Advisory Committee'' means the Companies and Securities Advisory Committee established by section 145 of the Australian Securities and Investments Commission Act 1989;

``affairs'' , in relation to a body corporate, has, in the provisions referred to in section 53, a meaning affected by that section;

``affidavit'' includes affirmation;

[``AFIC Codes''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

``agency'' means an agency, authority, body or person;

``AGM'' means an annual general meeting of a company that section 250N requires to be held.

``agreement'' means:

(a)  in Chapter 6 or 7 - a relevant agreement; or

(b)  in Chapter 8 - a Chapter 8 agreement;

``amount'' includes a nil amount and zero;

``ancillary offence'' , in relation to another offence, means an offence against:

(a)  section 5, 6, 7 or 7A of the Crimes Act 1914; or

(b)  subsection 86(1) of that Act by virtue of paragraph 86(1)(a) of that Act; or

(c)  such a provision of the Crimes Act 1914 as it applies as a law of this jurisdiction;

being an offence that is related to that other offence;

[``annual general meeting''] (Definition repealed by No 61 of 1998, Sch 2, Pt 2 (effective 1 July 1998).)

``annual return'' :

(a)  of a company - means the return that subsection 345(1) requires the company to lodge with ASIC; and

(b)  of a registered managed investment scheme - means the return that subsection 345(2) requires the responsible entity of the scheme to lodge with ASIC.

``another jurisdiction'' means a jurisdiction other than this jurisdiction;

[``applicable accounting standard''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

``application order'' means an order under section 111A of the Corporations Law of this jurisdiction;

[``application period''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

``appoint'' includes re-appoint;

``appropriate dealer'' for a market bid means a member of the relevant securities exchange;

``approved foreign bank'' , in relation to a member of a futures organisation, means a bank, established by or under the law of a foreign country, in relation to which there is in force an approval given by the futures organisation in accordance with its business rules (within the meaning of Chapter 8);

``approved securities organisation'' means a body corporate in relation to which an approval under section 770 of the Corporations Law of this jurisdiction is in force;

[``approving holding company''] (Definition repealed by No 61 of 1998, Sch 2, Pt 3 (effective 1 July 1998).)

``APRA'' means the Australian Prudential Regulation Authority;

``arbitrage transaction'' means a purchase or sale of securities effected in the ordinary course of trading on a stock market together with an offsetting sale or purchase of those securities effected at the same time, or at as nearly the same time as practicable, in the ordinary course of trading on another stock market for the purpose of obtaining a profit from the difference between the prices of those securities in the 2 stock markets;

``ARBN'' (short for ``Australian Registered Body Number'') is the number given by ASIC to a registrable body on registration under Part 5B.2;

``arrangement'' , in Part 5.1, includes a reorganisation of the share capital of a body corporate by the consolidation of shares of different classes, by the division of shares into shares of different classes, or by both of those methods;

``ARSN'' (short for ``Australian Registered Scheme Number'') is the number given by ASIC to a registered scheme on registration (see section 601EB).

[``articles''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``ASC''] (Definition repealed by No 54 of 1998, Sch 4, Pt 1 (effective 1 July 1998).)

[``ASC database''] (Definition repealed by No 54 of 1998, Sch 5, Pt 3 (effective 1 July 1998).)

``ASIC'' means the Australian Securities and Investments Commission;

``ASIC database'' means so much of the national companies database kept by ASIC as consists of:

(a)  some or all of a register kept by ASIC under this Law; or

(b)  information set out in a document lodged under this Law;

but does not include ASIC's document imaging system.

``assets'' means:

(a)  in relation to the holder of a futures brokers licence - all the assets of the holder, whether or not used in connection with a business of dealing in futures contracts; and

(b)  in relation to the holder of a dealers licence - all the assets of the holder, whether or not used in connection with a securities business;

``associate'' : 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;

``ASX'' means Australian Stock Exchange Limited.

[``audited or reviewed in accordance with this Law''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

``Australia'' includes the coastal sea of each jurisdiction but does not include an external Territory;

``Australian ADI'' means:

(a)  an ADI (authorised deposit-taking institution) within the meaning of the Banking Act 1959; and

(b)  a person who carries on State banking within the meaning of paragraph 51 (xiii) of the Constitution;

``Australian bank'' means:

(a)  a bank as defined in section 5 of the Banking Act 1959; or

(b)  a bank constituted by or under a law of a State or Territory;

``Australian company law'' means:

(a)  this Act; or

(b)  the company law of a State or Territory;

``Australian court'' means a federal court or a court of a State or Territory;

``Australian law'' means a law of the Commonwealth or of a State or Territory;

``Australian register'' of a foreign company means a branch register of members kept under section 601CM;

``authorised trustee corporation'' means a body corporate that is declared by the regulations to be an authorised trustee corporation for the purposes of the provision in which the expression appears;

[``available''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

B

``bank'' includes, but is not limited to, a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959.

``banker's books'' means:

(a)  books of an Australian ADI, including documents used in the ordinary business of an Australian ADI;

(b)  cheques, orders for the payment of money, bills of exchange and promissory notes in an Australian ADI's possession;

(c)  scrip in an Australian ADI's possession, whether by way of pledge or otherwise; or

(d)  documents that create or evidence futures contracts and are in an Australian ADI's possession;

``banking corporation'' means a body corporate that carries on, as its sole or principal business, the business of banking (other than State banking not extending beyond the limits of the State concerned);

``banning order'' means:

(a)  in section 835 or 836 - an order by the Commission in force under Division 5 of Part 7.3; and

(b)  in any other provision of Chapter 7 - an order by the Commission in force under Division 5 of Part 7.3 of the Corporations Law of this jurisdiction; and

(c)  in section 1199 or 1199A - an order by the Commission in force under Division 5 of Part 8.3; and

(d)  in any other provision of Chapter 8 - an order by the Commission in force under Division 5 of Part 8.3 of the Corporations Law of this jurisdiction;

``begin'' , in relation to a winding up, has the meaning given by Division 1A of Part 5.6;

``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;

``bid class'' of securities for a takeover bid is the class of securities to which the securities being bid for belong;

``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.

``bidder's statement'' means a bidder's statement under sections 636 and 637 as supplemented;

``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;

``Board'' means:

(a)  (Paragraph repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

(b)  in Part 7.10 - the board of SEGC; or

(c)  in Part 9.2 - the Companies Auditors and Liquidators Disciplinary Board established by section 202 of the Australian Securities and Investments Commission Act 1989;

``board'' , in relation to a body, means the committee of management, board of directors, council or other governing authority of the body;

``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;

``body'' means a body corporate or an unincorporated body and includes, for example, a society or association;

``body corporate'' :

(a)  includes a body corporate that is being wound up or has beendissolved; and

(b)  in this Chapter (except section 66A) and section 206E includes an unincorporated registrable body;

``books'' includes:

(a)  a register;

(b)  any other record of information;

(c)  financial reports or financial records, however compiled, recorded or stored; and

(d)  a document;

``borrower'' , in relation to a debenture, means the body that is or will be liable to repay money under the debenture;

[``borrowing corporation''] (Definition repealed by No 156 of 1999, Sch 3, Pt 2 (effective 13 March 2000). )

``bought position'' means:

(a)  in relation to a commodity agreement, or in relation to a futures contract, being a commodity agreement - the position of a person who, by virtue of the agreement, is under a Chapter 8 obligation to accept delivery in accordance with the agreement; or

(b)  in relation to a futures contract, being an adjustment agreement - the position of a person who, by virtue of the agreement:

(i) will, if the value or worth of the agreement (as determined in accordance with the agreement) as at a particular future time is less by a particular amount than the value or worth of the agreement (as so determined) as at a particular earlier time, be under a Chapter 8 obligation to pay that amount; and

(ii) will, if the value or worth of the agreement (as so determined) as at a particular future time exceeds by a particular amount the value or worth of the agreement (as so determined) as at a particular earlier time, have a Chapter 8 right to receive that amount;

[``branch register''] (Definition repealed by No 115 of 1995, Sch 6 (effective 9 December 1995).)

[``building society''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

[``building society special services provider''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

``business affairs'' , in relation to an entity, has a meaning affected by sections 53AA, 53AB, 53AC and 53AD;

``business day'' means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned;

[``buy-back''] (Definition of ``buy-back repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``buy-back agreement'' by a company means an agreement by the company to buy back its own shares (whether the agreement is conditional or not);

[``buy-back arrangements''] (Definition repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``buy-back covenant''] (Definition repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

C

``calendar month'' means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month;

``calendar year'' means a period of 12 months commencing on 1 January;

``Capital Territory'' means the Australian Capital Territory and the Jervis Bay Territory;

``carry on'' has a meaning affected by Division 3;

``cash management trust interest'' means an interest that:

(a)  is an interest in a registered scheme; and

(b)  relates to an undertaking of the kind commonly known as a cash management trust.

``cause'' includes procure;

``certified'' means:

(a)  in relation to a copy of, or extract from, a document - certified by a statement in writing to be a true copy of, or extract from, the document; or

(b)  in relation to a translation of a document - certified by a statement in writing to be a correct translation of the document into English;

[``Chapter 6 body''] (Definition repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

[``Chapter 6 company''] (Definition repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

``Chapter 8 agreement'' means:

(a)  a relevant agreement;

(b)  a proposed relevant agreement;

(c)  a relevant agreement as varied, or as proposed to be varied;

(d)  where a relevant agreement has been varied - the relevant agreement as in force at any time before the variation; or

(e)  where a relevant agreement has been discharged - the relevant agreement as in force at any time before its discharge;

``Chapter 8 obligation'' has the meaning given by section 55;

``Chapter 8 right'' has the meaning given by section 55;

``charge'' means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise;

``chargeable matter'' means any of the following:

(a)  the lodgment of a document under the Corporations Law of this jurisdiction;

(b)  the registration of a document under that Law;

(c)  the inspection or search of a register kept by, or a document in the custody of, the Commission under that Law;

(d)  the making available by the Commission, under that Law, of information (whether in the form of a document or otherwise);

(e)  the production by the Commission, under a subpoena, of such a register or document;

(f)  the issuing of a document or a copy of a document, the granting of a licence, consent or approval, or the doing of any other act, under that Law, by the Minister or the Commission;

(g)  the making of an inquiry of, or an application to, the Minister, or the Commission, in relation to a matter arising under that Law;

(h)  the submission to the Commission of a document for examination by the Commission;

(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;

``chargee'' means the holder of a charge and includes a person in whose favour a charge is to be given or executed, whether on demand or otherwise, under an agreement;

[``chief entity''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

[``child entity''] (Definition repealed by No 156 of 1999, Sch 3, Pt 4 (effective 13 March 2000). )

``civil penalty disqualification'' has the meaning given by subsection 91(4A);

``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;

``civil penalty provision'' has the meaning given in subsection 1317E(1);

``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);

``clearing house'' means:

(a)  in relation to a body corporate:

(i) in any case - a person who provides, or proposes to provide, clearing house facilities for a futures market conducted by that body; or

(ii) in the case of a futures exchange - a body corporate in relation to which an approval as a clearing house for that futures exchange is in force under subsection 1131(2) or is taken because of subsection 1131(4) to be in force; and

(b)  in relation to a futures market:

(i) in any case - a person who provides, or proposes to provide, clearing house facilities for that futures market; or

(ii) in the case of a futures market of a futures exchange - a body corporate in relation to which an approval as a clearing house for that futures exchange is in force under subsection 1131(2) or is taken because of subsection 1131(4) to be in force;

``clearing house facilities'' , in relation to a futures market, means facilities for the registration of futures contracts acquired or disposed of on that futures market;

``client'' , in relation to a futures broker, means, except in Division 2 of Part 8.3, a person on whose behalf the broker deals, or from whom the broker accepts instructions to deal, in futures contracts;

``clients' segregated account'' , in relation to a person who is a member of a futures organisation, means an account that:

(a)  the person maintains, whether in Australia or elsewhere, with:

(i) an Australian ADI; or

(ii) an approved foreign bank in relation to the person; and

(b)  is maintained for the sole purpose of containing money deposited by the person into the account under section 1209 or a corresponding previous law;

[``close corporation''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``close out'' , in relation to a futures contract, means:

(a)  discharge the Chapter 8 obligations of the person in the bought position, or sold position, under the futures contract as a result of the matching up of the futures contract with a futures contract of the same kind under which the person has assumed an offsetting sold position, or offsetting bought position, as the case may be; or

(b)  otherwise discharge the Chapter 8 obligations of a party to the futures contract;

``coastal sea'' :

(a)  in relation to Australia - means:

(i) the territorial sea of Australia; and

(ii) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;

and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; and

(b)  in relation to a jurisdiction - means so much of the coastal sea of Australia as is within the area described in Schedule 2 to the Petroleum (Submerged Lands) Act 1967 under the heading that refers to that jurisdiction;

``commence'' , in relation to a winding up, has the meaning given by Division 1A of Part 5.6;

``commencement'' means:

(a)  in relation to this Law or a provision of this Law - the time at which the Law or provision came into operation; or

(b)  in relation to an accounting standard:

(i) in the case of an accounting standard as originally in effect - the time when the accounting standard took effect; or

(ii) in the case of an accounting standard as varied by a particular provision of an instrument made under section 32 of the Corporations Act 1989, as the instrument has effect for the purposes of Chapter 2M of the Corporations Law of this jurisdiction - the time when that provision took effect;

``Commission'' means the Australian Securities and Investments Commission;

``Commission Act'' means the Australian Securities and Investments Commission Act 1989;

``Commission delegate'' has the same meaning as in the ASIC Law of this jurisdiction;

``committee of creditors'' , in relation to a company under administration, means a committee of creditors of the company appointed at a meeting convened under section 436E;

``commodity'' means:

(a)  any thing that is capable of delivery pursuant to an agreement for its delivery; or

(b)  without limiting the generality of paragraph (a), an instrument creating or evidencing a thing in action;

``commodity agreement'' means a standardised agreement the effect of which is that:

(a)  a person is under a Chapter 8 obligation to make delivery; or

(b)  a person is under a Chapter 8 obligation to accept delivery;

at a particular future time of a particular quantity of a particular commodity for a particular price or for a price to be calculated in a particular manner, whether or not:

(c)  the subject matter of the agreement is in existence;

(d)  the agreement has any other effect; or

(e)  the agreement is capable of being varied or discharged before that future time;

``company'' means a company registered, or taken to be registered, under the Corporations Law of this jurisdiction and:

(a)  in sections 70A, 500 and 600F, includes a recognised company; and

(b)  in Chapter 2K (other than section 273), includes a registrable body (other than a registrable local body) that is registered under Division 1 or 2 of Part 5B.2 of the Corporations Law of this jurisdiction; and

(ba)  in section 273, includes:

(i) a recognised company; and

(ii) a registered body (other than a registrable local body); and

(c)  in Parts 5.7B and 5.8 (except sections 595 and 596), includes a Part 5.7 body

(ca)  in Part 5B.1 includes an unincorporated registrable body.

(d)  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

[``company having a share capital''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``company law'' , in relation to a State or Territory, means the law, or a previous law, of the State or Territory relating to companies;

``company limited by guarantee'' means a company formed on the principle of having the liability of its members limited to the respective amounts that the members undertake to contribute to the property of the company if it is wound up;

``company limited by shares'' means a company formed on the principle of having the liability of its members limited to the amount (if any) unpaid on the shares respectively held by them;

``condition'' , in relation to a licence, means a condition or restriction to which the licence is subject, or will be subject, as the case requires;

``conduct'' :

(a)  in relation to a futures market, a stock market, or any other market, exchange, place or facility - includes maintain or provide; and

(b)  in Chapter 7 - has a meaning affected by section 762;

``connected entity'' , in relation to a corporation, means:

(a)  a body corporate that is, or has been, related to the corporation; or

(b)  an entity that is, or has been, connected (as defined by section 64B) with the corporation;

[``consolidated accounts''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

``consolidated entity'' means a company, registered managed investment scheme or disclosing entity together with all the entities it is required by the accounting standards to include in consolidated financial statements.

``Consolidated Revenue Fund'' means the Consolidated Revenue Fund of the Commonwealth;

``constitution'' means (depending on the context):

(a)  a company's constitution, which (where relevant) includes rules and consequential amendments that are part of the company's constitution because of the Life Insurance Act 1995; or

(b)  a managed investment scheme's constitution; or

(c)  in relation to any other kind of body:

(i) the body's charter or memorandum; or

(ii) any instrument or law (other than this Law) constituting, or defining the constitution of, the body or governing the activities of the body or its members.

Note:

The Life Insurance Act 1995 has rules about how benefit fund rules become part of a company's constitution. They override this Law. See Subdivision 2 of Division 4 of Part 2A of that Act.

``Constitution'' means the Constitution of the Commonwealth;

``continuous disclosure notice'' means:

(a)  a document used to notify a securities exchange of information relating to a body under provisions of the securities exchange's listing rules referred to in subsection 1001A(1); or

(b)  a document under section 1001B lodged in relation to the body;

``continuously quoted securities'' are securities that:

(a)  are in a class of securities that were quoted ED securities at all times in the 12 months before the date of the prospectus; and

(b)  are securities of an entity that was not covered by any of the following at any time in that 12 months:

(i) an exemption under section 111AS or 111AT, or a modification under section 111AV

(ii) an exemption under paragraph 741(1)(a), or a declaration under paragraph 741(1)(b), relating to a provision that is a disclosing entity provision for the purposes of Division 4 of Part 1.2A

and, for these purposes, securities are not in different classes merely because of a temporary difference in the dividend, or distribution rights, attaching to the securities or because different amounts have been paid up on the securities.

``contravene'' includes fail to comply with;

``contributing member'' , in relation to a futures organisation, means:

(a)  in the case of a futures exchange - a member or member organisation of the futures exchange; or

(b)  in the case of a futures association:

(i) a member of that futures association that is a member of no futures exchange; or

(ii) a member organisation of that futures association that is a member organisation of no futures exchange;

``contributory'' means:

(a)  in relation to a company (other than a no liability company):

(i) a person liable as a member or past member to contribute to the property of the company if it is wound up; and

(ii) for a company with share capital - a holder of fully paid shares in the company; and

(iii) before the final determination of the persons who are contributories because of subparagraphs (i) and (ii) - a person alleged to be such a contributory; and

(b)  in relation to a Part 5.7 body:

(i) a person who is a contributory by virtue of section 586; and

(ii) before the final determination of the persons who are contributories by virtue of that section - a person alleged to be such a contributory;

(c)  in relation to a no liability company - subject to section 385, a member of the company;

``control'' has the meaning given by section 50AA;

``control day'' , in relation to a controller of property of a corporation, means:

(a)  unless paragraph (b) applies:

(i) in the case of a receiver, or receiver and manager, of that property - the day when the receiver, or receiver and manager, was appointed; or

(ii) in the case of any other person who is in possession, or has control, of that property for the purpose of enforcing a charge - the day when the person entered into possession, or took control, of property of the corporation for the purpose of enforcing that charge; or

(b)  if the controller became a controller of property of the corporation:

(i) to act with an existing controller of such property; or

(ii) in place of a controller of such property who has died or ceased to be a controller of such property;

the day that is, because of any other application or applications of this definition, the control day in relation to the controller referred to in subparagraph (i) or (ii);

``controller'' , in relation to property of a corporation, means:

(a)  a receiver, or receiver and manager, of that property; or

(b)  anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that propertyfor the purpose of enforcing a charge;

``convertible note'' has the same meaning as in Division 3A of Part III of the Income Tax Assessment Act 1936;

``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;

``corporation'' has the meaning given by section 57A;

``Corporations Law'' , in relation to a jurisdiction, has the additional meaning given by section 8A;

``corresponding'' , in relation to a law, has the meaning given by section 58;

``corresponding previous law'' has the meaning given by section 58;

``court'' has the meaning given by section 58AA;

``Court'' has the meaning given by section 58AA;

``court of summary jurisdiction'' means any justice or justices of the peace or other magistrate sitting as a court for the making of summary orders or the summary punishment of offences:

(a)  under a law of the Commonwealth or of this or any other jurisdiction; or

(b)  by virtue of his or her commission or their commissions;

[``credit union''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

[``credit union special services provider''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

``creditors' voluntary winding up'' means a winding up under Part 5.5, other than a members' voluntary winding up;

``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;

D

``daily newspaper'' means a newspaper that is ordinarily published on each day that is a business day in the place where the newspaper is published, whether or not the newspaper is ordinarily published on other days;

``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;

[``deadline''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

``deal'' :

(a)  in relation to a futures contract - has the meaning given by Division 4;

(b)  in relation to securities - subject to subsection 93(4), means (whether as principal or agent) acquire, dispose of, subscribe for or underwrite the securities, or make or offer to make, or induce or attempt to induce a person to make or to offer to make, an agreement:

(i) for or with respect to acquiring, disposing of, subscribing for or underwriting the securities; or

(ii) the purpose or purported purpose of which is to secure a profit or gain to a person who acquires, disposes of, subscribes for or underwrites the securities or to any of the parties to the agreement in relation to the securities;

``dealer'' means:

(a)  a person who carries on a securities business; or

(b)  2 or more persons who together carry on a securities business;

``dealers licence'' means:

(a)  in this Chapter or section 780, 806 or 807 - a dealers licence granted under Part 7.3; or

(b)  in any other provision of Chapter 7 - a dealers licence granted under Part 7.3 of the Corporations Law of this jurisdiction;

``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-markettakeover 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;

``decision period'' , in relation to a chargee in relation to a charge on property of a company under administration, means the period beginning on the day when:

(a)  if notice of the appointment of the administrator must be given to the chargee under subsection 450A(3) - such notice is so given; or

(b)  otherwise - the administration begins;

and ending at the end of the tenth business day after that day;

``deed'' includes a document having the effect of a deed;

``deed of company arrangement'' means a deed of company arrangement executed under Part 5.3A or such a deed as varied and in force time to time;

``de facto spouse'' , in relation to a person, means an individual of the opposite sex to that person who is living with that person as his or her spouse on a genuine domestic basis although not legally married to that person;

``defalcation'' , in Part 7.9, includes a contravention of subsection 870(3);

``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;

``defect'' , in relation to a statutory demand, includes:

(a)  an irregularity; and

(b)  a misstatement of an amount or total; and

(c)  a misdescription of a debt or other matter; and

(d)  a misdescription of a person or entity;

``Department'' , in a case where a provision uses the expression ``the Department'' without specifying which Department is referred to, means:

(a)  if the Minister or Ministers for the time being administering the Corporations Act 1989 administers or administer only one Department of State of the Commonwealth - that Department; or

(b)  otherwise - the Department of State of the Commonwealth prescribed for the purposes of this definition as it applies for the purposes of that provision;

``deregistered'' means:

(a)  in relation to a company - deregistered under Chapter 5A; and

(b)  in relation to any other body corporate - deregistered in a way that results in the body corporate ceasing to exist.

``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).

``disclosing entity'' has the meaning given by section 111AC;

``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;

``discretionary account'' has the meaning given by section 61;

``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;

[``Division 1 company''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``Division 2 company''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``Division 2 or 3 company''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``Division 3 company''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``Division 4 company''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``document'' includes:

(a)  any paper or other material on which there is writing or printing or on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

(b)  a disc, tape or other article from which sounds, images or messages are capable of being reproduced; and

(c)  a disc, tape or other article, or any material, from which sounds, images, writings or messages are capable of being reproduced with or without the aid of any other article or device;

and without limiting the generality of the foregoing, includes any summons, order and other legal process and any notice;

Note:

In Division 3 of Part 7.13, ``document'' has a meaning affected by the definition of ``document'' in subsection 1097(1).

``document of title'' , in relation to securities, includes an instrument of transfer relating to the securities;

``domestic corporation'' means a corporation that is incorporated or formed in Australia or an external Territory;

[``dormant''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

E

(``economic entity'') (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

``ED securities'' has the meaning given by section 111AD;

``eligible applicant'' , in relation to a corporation, means:

(a)  the Commission; or

(b)  a liquidator or provisional liquidator of the corporation; or

(c)  an administrator of the corporation; or

(d)  an administrator of a deed of company arrangement executed by the corporation; or

(e)  a person authorised in writing by the Commission to make:

(i) applications under the Division of Part 5.9 in which the expression occurs; or

(ii) such an application in relation to the corporation;

[``eligible circumstances''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``eligible commodity agreement'' means a commodity agreement (in this definition called the ``relevant agreement''), where, at the time when the relevant agreement:

(a)  unless paragraph (b) applies - is entered into; or

(b)  if the relevant agreement is not a commodity agreement at the time when it is entered into - becomes a commodity agreement;

it appears likely, having regard to all relevant circumstances (other than the respective intentions of the person in the sold position, and the person in the bought position, under the relevant agreement), including, without limiting the generality of the foregoing:

(c)  the provisions of any agreement;

(d)  the rules and practices of any market; and

(e)  the manner in which the respective Chapter 8 obligations of persons in sold positions, and persons in bought positions, under agreements of the same kind as the first-mentioned agreement are generally discharged;

that:

(f)  the Chapter 8 obligation of the person in the sold position under the relevant agreement to make delivery in accordance with the relevant agreement will be discharged otherwise than by the person so making delivery;

(g)  the Chapter 8 obligation of the person in the bought position under the relevant agreement to accept delivery in accordance with the relevant agreement will be discharged otherwise than by the person so accepting delivery; or

(h)  the person in the sold position, or bought position, under the relevant agreement will assume an offsetting bought position, or offsetting sold position, as the case may be, under an agreement of the same kind as the relevant agreement;

[``eligible communications service''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

[``eligible corporation''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``eligible exchange-traded option'' means a contract that is entered into on a futures market of a futures exchange and under which a party acquires from another party an option or right, exercisable at or before a specified time:

(a)  to purchase from, or to sell to, that other party a specified quantity of a specified commodity at a price specified in, or to be determined in accordance with, the contract; or

(b)  to be paid by that other party an amount of money to be determined by reference to the amount by which a specified number is greater or less than the number of a specified index, being the Australian Stock Exchanges All Ordinaries Price Index or a prescribed index, as at the time when the option or right is exercised;

[``eligible futures advice business''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

[``eligible futures adviser''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

[``eligible futures broker''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

[``eligible futures broking business''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

[``eligible futures conduct''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

[``eligible futures contract''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

[``eligible futures market''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

[``eligible investment advice business''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``eligible money market dealer'' means a body corporate in respect of which a declaration is in force under section 65;

[``eligible negotiable instrument''] (Amended to ``negotiable instrument'' by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``eligible securities''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

[``eligible securities business''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``eligible securities conduct'' means conduct in the course of, for the purposes of, or otherwise in connection with:

(a)  dealing in securities; or

(b)  advising a person about securities; or

(c)  giving to a person a securities report;

``emoluments'' means the amount or value of any money, consideration or benefit given, directly or indirectly, to a director of a body corporate in connection with the management of affairs of the body or of any holding company or subsidiary of the body, whether as a director or otherwise, but does not include amounts in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the body;

``employee share scheme'' for a company means a scheme under which shares (or units in shares) in the company or a holding company may be acquired:

(a)  by, or for the benefit of:

(i) employees of the company, or of a related body corporate; or

(ii) directors of the company, or of a related body corporate, who hold a salaried employment or office in the company or in a related body corporate; or

(b)  by a corporation all of whose members are:

(i) employees of the company, or of a related body corporate; or

(ii) directors of the company, or of a related body corporate, who hold a salaried employment or office in the company or in a related body corporate.

``employee share scheme buy-back'' means a buy-back under a scheme that:

(a)  has as its purpose the acquisition of shares in a company by, or on behalf of:

(i) employees of the company, or of a related body corporate; or

(ii) directors of the company, or a related body corporate, who hold a salaried employment or office in the company or in a related body corporate; and

(b)  has been approved by the company in general meeting.

``enforce'' , in relation to a charge on property of a company under administration, includes:

(a)  appoint a receiver of property of the company under a power contained in an instrument relating to the charge; or

(b)  obtain an order for the appointment of a receiver of such property for the purpose of enforcing the charge; or

(c)  enter into possession, or assume control, of such property for that purpose; or

(d)  appoint a person so to enter into possession or assume control (whether as agent for the chargee or for the company); or

(e)  exercise, as chargee or as a receiver or person so appointed, a right, power or remedy existing because of the charge, whether arising under an instrument relating to the charge, under a written or unwritten law, or otherwise;

``enforcement process'' , in relation to property, means:

(a)  execution against that property; or

(b)  any other enforcement process in relation to that property that involves a court or a sheriff;

``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);

``entitlements'' of an employee of a company has the meaning given by subsections 596AA(2) and (3).

``entity'' :

(a)  in Chapter 2E - has the meaning given by section 243C; and

(b)  (Repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

(c)  otherwise - has the meaning given by section 64A;

``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;

``equal access scheme'' has the meaning given by subsections 257B(2) and (3);

``estate'' includes any estate or interest, charge, right, title, claim, demand, lien or encumbrance, at law or in equity;

``event'' includes any happening, circumstance or state of affairs;

``examinable affairs'' , in relation to a corporation means:

(a)  the promotion, formation, management, administration or winding up of the corporation; or

(b)  any other affairs of the corporation (including anything that is included in the corporation's affairs because of section 53); or

(c)  the business affairs of a connected entity of the corporation, in so far as they are, or appear to be, relevant to the corporation or to anything that is included in the corporation's examinable affairs because of paragraph (a) or (b);

``examinable assets and liabilities'' , in relation to an entity, means all of the following:

(a)  the entity's property and assets:

(i) whether present or future; and

(ii) whether held alone or jointly with any other person or persons; and

(iii) whether or not held as agent, bailee or trustee;

(b)  the entity's liabilities:

(i) whether present or future; and

(ii) whether actual or contingent; and

(iii) whether owed alone or jointly with any other person or persons; and

(iv) whether or not owed as trustee;

``examinable officer'' , in relation to a corporation, means:

(a)  a director, secretary or executive officer of the corporation; or

(b)  a receiver, or receiver and manager, of property of the corporation (whether appointed under a provision contained in an instrument, or by a court); or

(c)  an administrator of the corporation; or

(d)  an administrator of a deed of company arrangement executed by the corporation; or

(e)  a liquidator or provisional liquidator of the corporation (whether or not appointed by a court); or

(f)  a trustee or other person administering a compromise or arrangement made between the corporation and any other person or persons;

``examinable operations'' , in relation to an entity, means all of the following:

(a)  the entity's business, trading, transactions and dealings:

(i) whether alone or jointly with any other entity or entities; and

(ii) whether or not as agent, bailee or trustee;

(b)  the entity's profits, income and receipts;

(c)  the entity's losses, outgoings and expenditure;

``Exchange'' means Australian Stock Exchange Limited;

``exchange member'' , in relation to a futures exchange, means:

(a)  a corporation that is a member of the futures exchange;

(b)  a partnership that is a member of the futures exchange; or

(c)  a member of such a partnership;

``Exchange subsidiary'' means:

(a)  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

(b)  in section 779 or subsection 920(1) - a securities exchange that is a subsidiary of the Exchange; and

(c)  in any other provision of Chapter 7 - a local securities exchange that is a subsidiary of the Exchange;

``exchange traded option'' means an option declared by a securities exchange to be an exchange traded option;

EXCLUDED

(``excluded corporation'') (Definition repealed by No 156 of 1999, Sch 3, Pt 2 (effective 13 March 2000). )

[``excluded invitation''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

[``excluded issue''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

[``excluded offer''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

[``excluded prospectus''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

``excluded security'' means:

(a)  where:

(i) there is attached to a share or debenture a right to participate in a retirement village scheme; and

(ii) each of the other rights, and each interest (if any), attached to the share or debenture is a right or interest that is merely incidental to the right referred to in subparagraph (i);

the share or debenture or a unit in the share or debenture; or

(b)  an interest in a managed investment scheme constituted by a right to participate in a retirement village scheme;

``excluded Territory'' means an external Territory to which this Act does not extend;

``Executive Council'' means the Federal Executive Council;

``executive officer'' of a body corporate means a person who is concerned in, or takes part in, the management of the body (regardless of the person's designation and whether or not the person is a director of the body).

EXEMPT

``exempt body'' has the meaning given by section 66A;

``exempt broker'' means a person who is an exempt broker by virtue of section 67;

``exempt dealer'' has the meaning given by section 68;

``exempt foreign company'' means a foreign company of a kind referred to in subsection 601CK(8), whether or not Division 2 of Part 5B.2 applies to it;

``exempt futures market'' means a futures market in relation to which a declaration under section 1127 is in force;

``exempt investment adviser'' has the meaning given by section 68;

``exempt managed investment scheme interest'' has the meaning given by section 68A.

[``exempt prescribed interest''] (Definition repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``exempt proprietary company''] (Definition omitted by No 115 of 1995, Sch 4 (effective 9 December 1995).)

``exempt public authority'' means a body corporate that is incorporated within Australia or an external Territory and is:

(a)  a public authority; or

(b)  an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory;

[``exempt securities''] (Definition repealed by No 156 of 1999, Sch 3, Pt 2 (effective 25 November 2000).)

``exempt stock market'' means a stock market in relation to which, or a stock market in a class of stock markets in relation to which, a declaration is in force under section 771;

``expert'' , in relation to a matter, means a person whose profession or reputation gives authority to a statement made by him or her in relation to that matter;

``extend'' , in relation to a period:

(a)  includes further extend; and

(b)  has a meaning affected by section 70;

``external Territory'' means a Territory, not being an internal Territory, provision for the government of which as a territory is made by any Act;

``externally-administered body corporate'' means a body corporate:

(a)  that is being wound up;

(b)  in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting;

(c)  that is under administration;

(ca)  that has executed a deed of company arrangement that has not yet terminated; or

(d)  that has entered into a compromise or arrangement with another person the administration of which has not been concluded;

``extraordinary resolution'' means a resolution:

(a)  of which notice as set out in paragraph 252J(c) has been given; and

(b)  that has been passed by at least 50% of the total votes that may be cast by members entitled to vote on the resolution (including members who are not present in person or by proxy).

F

``Federal Court'' means the Federal Court of Australia;

``fee'' , in Part 9.10, includes a fee that is a tax;

``fidelity fund'' means:

(a)  in relation to a futures organisation - the fidelity fund (if any) that section 1228 requires the futures organisation to keep; or

(b)  in relation to a securities exchange within the meaning of Chapter 7 - the fidelity fund (if any) that section 895 requires or required the securities exchange to keep;

``financial benefit'' (when used in Chapter 2E) has a meaning that is affected by section 229;

``financial corporation'' means a financial corporation within the meaning of paragraph 51(20) of the Constitution;

[``financial institution''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

[``Financial Institutions Codes''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

``financial records'' includes:

(a)  invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; and

(b)  documents of prime entry; and

(c)  working papers and other documents needed to explain:

(i) the methods by which financial statements are made up; and

(ii) adjustments to be made in preparing financial statements.

``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.

``financial statements'' means annual financial statements under section 295 or half-year financial statements under section 303;

``financial year'' has the meaning given by section 323D;

``find'' , in the case of a reference to a court finding a person guilty of an offence, has a meaning affected by section 73A;

``floating charge'' includes a charge that conferred a floating security at the time of its creation but has since become a fixed or specific charge;

``for'' , in relation to a fee or tax, includes in respect of;

``foreign companies law'' , in relation to a State, Territory or excluded Territory, means the law, or a previous law, of that State, Territory or excluded Territory relating to foreign companies within the meaning of that law or previous law;

``foreign company'' means:

(a)  a body corporate incorporated in an external Territory or outside Australia and the external Territories, not being:

(i) a corporation sole; or

(ii) an exempt public authority; or

(b)  an unincorporated body that:

(i) is formed in an external Territory or outside Australia and the external Territories; and

(ii) under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and

(iii) does not have its head office or principal place of business in Australia;

[``foreign corporation''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``foreign country'' means any country (whether or not an independent sovereign state) outside Australia and the external Territories;

``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;

``franchise'' means an arrangement under which a person earns profits or income by exploiting a right, conferred by the owner of the right, to use a trade mark or design or other intellectual property or the goodwill attached to it in connection with the supply of goods or services. An arrangement is not a franchise if the person engages the owner of the right, or an associate of the owner, to exploit the right on the person's behalf.

``fully paid share'' means a share on which no amount remains unpaid.

``function'' includes a duty;

``Fund'' means the National Guarantee Fund established under section 69 of the Corporations Act 1989;

FUTURES

``futures advice business'' has the meaning given by section 71;

``futures adviser'' means a person who carries on, or 2 or more persons who together carry on, a futures advice business;

``futures advisers licence'' means:

(a)  in this Chapter or section 1173 - a futures advisers licence granted under Part 8.3; and

(b)  in any other provision of Chapter 8 - a futures advisers licence granted under Part 8.3 of the Corporations Law of this jurisdiction;

``futures association'' means:

(a)  in this Chapter or section 1220, 1222, 1223 or 1269 - a body corporate in relation to which an approval under section 1132 is in force or is taken because of subsection 1132(3) to be in force; or

(b)  in any other provision of Chapter 8 - a local futures association;

``futures broker'' means:

(a)  except in section 1209 and Part 8.5:

(i) a person who carries on, or 2 or more persons who together carry on, a futures broking business, whether or not the person, or any of the persons, also deals in futures contracts on the person's own account; or

(ii) the holder of a futures brokers licence; and

(b)  in section 1209 or Part 8.5 (except a provision of that section or Part referred to in paragraph (c) of this definition) - the holder of a futures brokers licence granted under Part 8.3 of the Corporations Law of this jurisdiction; and

(c)  in subsection 1209(14), (15) or (16) or section 1221 or 1222 - the holder of a futures brokers licence;

``futures brokers licence'' means:

(a)  in this Chapter or section 1142, 1172, 1173 or 1269 - a futures brokers licence granted under Part 8.3; and

(b)  in any other provision of Chapter 8 - a futures brokers licence granted under Part 8.3 of the Corporations Law of this jurisdiction;

``futures broking business'' , in relation to a person, means, subject to subsection 25(4), a business of dealing in futures contracts on behalf of other persons;

``futures contract'' has the meaning given by section 72;

``futures exchange'' means:

(a)  in this Chapter or section 1220, 1222, 1223 or 1269 - a body corporate in relation to which an approval under section 1126 is in force or is taken because of subsection 1126(3) to be in force; or

(b)  in any other provision of Chapter 8 - a local futures exchange;

``futures law'' means a provision of Chapter 8;

``futures licence'' means a futures brokers licence or a futures advisers licence;

``futures licensee'' means a person who holds a futures licence;

``futures market'' means a market, exchange or other place at which, or a facility by means of which, futures contracts are regularly acquired or disposed of;

``futures option'' means an option or Chapter 8 right to assume, at a specified price or value and within a specified period, a bought position, or a sold position, in relation to an eligible commodity agreement or in relation to an adjustment agreement;

``futures organisation'' means:

(a)  in this Chapter, section 1141A or subsection 1242(3) or 1249(3) - a futures exchange or a futures association; and

(b)  in Part 8.6:

(i) a local futures exchange; or

(ii) a local futures association, other than a futures association each of whose members is also a member of a futures exchange; and

(c)  in any other provision of Chapter 8 - a local futures exchange or a local futures association;

``futures report'' means an analysis or report about futures contracts;

``futures representative'' has the meaning given by section 73;

G

``Gazette'' means the Commonwealth of Australia Gazette;

``Gazette notice'' means a notice published in the Gazette;

``general law'' means the principles and rules of the common law and equity;

``Government Printer'' includes any person printing for the Government of the Commonwealth;

[``group''] (Definition omitted by No 110 of 1991, Sch 3 (effective 1 August 1991).)

[``group accounts''] (Definition omitted by No 110 of 1991, Sch 3 (effective 1 August 1991).)

[``group holding company''] (Definition omitted by No 110 of 1991, Sch 3 (effective 1 August 1991).)

``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;

[``guarantor body''] (Definition repealed by No 156 of 1999, Sch 3, Pt 2 (effective 13 March 2000). )

``guilty'' , in the case of a reference to a court finding a person guilty of an offence, has a meaning affected by section 73A;

H

``half-year'' has the meaning given by subsection 323D(5);

``have'' , in relation to information, includes be in possession of the information;

``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;

``hold'' , in relation to a person, in relation to a document that is, or purports to be, a copy of a licence, means have in the person's possession;

``holding company'' , in relation to a body corporate, means a body corporate of which the first body corporate is a subsidiary.

I

``included'' , in relation to an official list, has the meaning given by section 75;

[``incorporate''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``incorporated in Australia'' in relation to a body corporate, includes incorporated by or under a law of the Commonwealth, a State or the Capital Territory.

``incorporation'' :

(a)  of a company or of a recognised company - means the company's first registration under the Corporations Law of any jurisdiction; and

(b)  of any other incorporated body - means the body's incorporation by or under a law (other than this law or a corresponding previous law).

``individual'' means a natural person;

``industrial instrument'' means:

(a)  a contract of employment; or

(b)  a law, award, determination or agreement relating to terms or conditions of employment;

``information'' includes complaint;

``information service'' means:

(a)  a broadcasting service;

(b)  an interactive or broadcast videotext or teletext service or a similar service;

(c)  an online database service or a similar service; or

(d)  any other prescribed service;

``injury compensation'' means compensation payable under any law relating to workers compensation;

``inside information'' , in relation to a futures contract, means information that is not generally available but, if it were generally available, would be likely to affect materially the price for dealing in:

(a)  that futures contract; or

(b)  a futures contract of the same kind as that futures contract;

``insolvent'' has the meaning given by subsection 95A(2) and, in Part 7.10, has a meaning affected by section 922;

``insolvent transaction'' has the meaning given by section 588FC;

``insolvent under administration'' means a person who:

(a)  under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or

(b)  under the law of a country other than Australia or the law of an external Territory, has the status of an undischarged bankrupt;

and includes:

(c)  a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external Territory or of the law of a country other than Australia, where the terms of the deed have not been fully complied with; and

(d)  a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external Territory or of the law of a country other than Australia where a final payment has not been made under that composition;

[``insurance corporation''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``interest'' in a managed investment scheme means a right to benefits produced by the scheme (whether the right is actual, prospective or contingent and whether it is enforceable or not).

``internal Territory'' means the Capital Territory or the Northern Territory;

[``interstate''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``invalid futures authority'' has the meaning given by subsection 87(2);

``invalid securities authority'' has the meaning given by subsection 88(2);

``investment advice business'' has the meaning given by section 77;

``investment adviser'' means a person who carries on, or 2 or more persons who together carry on, an investment advice business;

``investment advisers licence'' means:

(a)  in this Chapter or section 807 - an investment advisers licence granted under Part 7.3; or

(b)  in any other provision of Chapter 7 - an investment advisers licence granted under Part 7.3 of the Corporations Law of this jurisdiction;

``investment contract'' means any contract, scheme or arrangement that, in substance and irrespective of its form, involves the investment of money in or under such circumstances that the investor acquires or may acquire an interest in, or right in respect of, property, whether in this jurisdiction or elsewhere, that, under, or in accordance with, the terms of investment will, or may at the option of the investor, be used or employed in common with any other interest in, or right in respect of, property, whether in this jurisdiction or elsewhere, acquired in or under like circumstances;

``involved'' , in relation to a contravention, has the meaning given by section 79;

``issue'' includes:

(a)  in relation to interests in a managed investment scheme - make available; and

(b)  otherwise - circulate, distribute and disseminate;

J

``Jervis Bay Territory'' means the Territory referred to in the Jervis Bay Territory Acceptance Act 1915;

``Judge'' means a judge of the Court;

``jurisdiction'' means a State or the Capital Territory and, in the case of a State, includes the coastal sea of the State;

``justice of the peace'' includes a justice of the peace for a State or part of a State or for a Territory;

L

``land'' includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein;

``large proprietary company'' has the meaning given by subsection 45A(3);

``law'' , in relation to a jurisdiction, means, subject to section 58, a law of, or a law in force in, that jurisdiction and, in the case of the Capital Territory, includes, without limitation:

(a)  the Corporations Act 1989 and regulations under it; and

(b)  the Corporations Law, Corporations Regulations, ASIC Law, and ASIC Regulations, of the Capital Territory; and

(c)  a relevant Act within the meaning of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980; and

(d)  regulations under such an Act;

``Law'' , in the case of a reference to this Law or to the Corporations Law of a jurisdiction, has the additional meaning given by sections 8 and 8A;

``lawyer'' means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person;

``leave of absence'' means long service leave, extended leave, recreation leave, annual leave, sick leave or any other form of leave of absence from employment;

``licence'' means:

(a)  in section 808 - a securities licence; and

(b)  in any other provision of Chapter 7 - a dealers licence, or an investment advisers licence, granted under Part 7.3 of the Corporations Law of this jurisdiction; and

(c)  in section 1174 or subsection 1220(2) or 1221(3) - a futures licence; and

(d)  in any other provision of Chapter 8 - a futures brokers licence, or a futures advisers licence, granted under Part 8.3 of the Corporations Law of this jurisdiction;

``licensee'' means:

(a)  in section 781 or subsection 879(1) - a securities licensee; and

(b)  in any other provision of Chapter 7 - a person who holds a dealers licence, or an investment advisers licence, granted under Part 7.3 of the Corporations Law of this jurisdiction; and

(c)  in section 1143 - a futures licensee; and

(d)  in any other provision of Chapter 8 - a person who holds a futures brokers licence, or a futures advisers licence, granted under Part 8.3 of the Corporations Law of this jurisdiction; and

(e)  in relation to a licence - the person who holds the licence;

``limited company'' means a company limited by shares or a company limited by guarantee but does not include a no liability company;

``linked'' the incurring of a debt and a contravention of section 596AB are linked if they are linked under subsection 596AB(4).

``liquidating trade'' means a transaction whereby, for the purpose of closing out a futures contract, the person in the bought position, or sold position, under the futures contract assumes an offsetting sold position, or offsetting bought position, as the case may be, under another futures contract;

``liquidator'' , in Chapters 7 and 8, includes a provisional liquidator;

``listed'' : A company, managed investment scheme or other body is listed if it is included in the official list of a securities exchange;

``listed corporation'' means a body corporate that is included in an official list of a securities exchange (as defined, for the purposes of this definition, by the regulations) in Australia or an external Territory;

``listed disclosing entity'' has the meaning given by subsection 111AL(1);

``listing rules'' , when used in Chapter 7, has the meaning given by section 761;

``local agent'' , in relation to a foreign company, means a person who is a local agent of the foreign company by virtue of subsection 601CG(5);

``local corporation'' means:

(a)  a company; or

(b)  any other corporation that is incorporated in this jurisdiction;

``local futures association'' means a body corporate in relation to which an approval under section 1132 of the Corporations Law of this jurisdiction is in force;

``local futures exchange'' means a body corporate in relation to which an approval under section 1126 of the Corporations Law of this jurisdiction is in force;

``local securities exchange'' means a local stock exchange or an approved securities organisation;

``local stock exchange'' means:

(a)  the Exchange; or

(b)  a body corporate referred to in any of subparagraphs (c)(ii) to (x), inclusive, of the definition of ``stock exchange'' that conducts in this jurisdiction, or proposes so to conduct, a stock market; or

(c)  a body corporate in relation to which an approval under section 769 of the Corporations Law of this jurisdiction is in force;

``lodge'' means lodge with the Commission in this or any other jurisdiction;

M

``machine-copy'' , in relation to a document, means a copy made of the document by any machine in which, or process by which, an image of the contents of the document is reproduced;

``magistrate'' means a magistrate who is remunerated by salary or otherwise;

[``make''] (Definition repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

[``manage''] (Definition repealed by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000). )

``managed investment scheme'' means:

(a)  a scheme that has the following features:

(i) people contribute money or money's worth as consideration to acquire rights ( interests ) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not)

(ii) any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members ) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders)

(iii) the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or

(b)  a time-sharing scheme;

but does not include the following:

(c)  a partnership covered by an application order made for the purposes of section 115

(d)  a body corporate (other than a body corporate that operates as a time sharing scheme)

(e)  a scheme in which all the members are bodies corporate that are related to each other and to the body corporate that promotes the scheme

(f)  a franchise

(g)  a statutory fund maintained under the Life Insurance Act 1995

(h)  a regulated superannuation fund, an approved deposit fund, a pooled superannuation trust, or a public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993

(i)  a scheme operated by an Australian ADI in the ordinary course of its banking business

(j)  the issue of debentures or convertible notes by a body corporate

(k)  a barter scheme under which each participant may obtain goods or services from another participant for consideration that is wholly or substantially in kind rather than in cash

(l)  a retirement village scheme operating within or outside Australia:

(i) under which the participants, or a majority of them, are provided, or are to be provided, with residential accommodation within a retirement village (whether or not the entitlement of a participant to be provided with accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is, or is to be, provided); and

(ii) which is not a time-sharing scheme

(m)  a scheme that is operated by a co-operative company registered under Part VI of the Companies (Co-operative) Act 1943 of Western Australia or under a previous law of Western Australia that corresponds to that Part

(n)  a scheme of a kind declared by the regulations not to be a managed investment scheme.

Note:

Paragraph (c) - A partnership with less than 20 members will usually not require registration because of paragraph 601ED(1)(a) and under section 115 a partnership with more than 20 members can only operate if covered by an application order.

[``management company''] (Definition repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``manager'' has a meaning affected by section 90;

``managing controller'' , in relation to property of a corporation, means:

(a)  a receiver and manager of that property; or

(b)  any other controller of that property who has functions or powers in connection with managing the corporation;

``market bid'' means a takeover bid made under Chapter 6 as a market bid (see section 616);

[``marketable parcel''] (Definition repealed by No 61 of 1998, Sch 2, Pt 3 (effective 1 July 1998).)

``marketable security'' means debentures, stocks, shares or bonds of any Government, of any local government authority or of any body corporate, association or society, and includes any right or option in respect of shares in any body corporate and any interest in a managed investment scheme;

``member'' :

(aa)  in relation to a managed investment scheme - means a person who holds an interest in the scheme; or

(a)  when used in Chapter 6 or Chapter 7 (except Part 7.1A and the provisions mentioned in paragraph (aa) of this definition) in relation to a securities exchange or stock exchange, means:

(i) a person who is a member organisation of that exchange; or

(ii) a person who is a partner in a partnership that is a member organisation of that exchange; or

(aa)  when used in section 769, 769A or 772A, subsection 776(2), section 779, subsection 786(8) or 910(3) or section 913 or 1115, in relation to a securities exchange or stock exchange, means:

(i) a person who is a member organisation of that exchange; or

(ii) a person who is a partner in a partnership that is a member organisation of that exchange; or

(iii) a person who is recognised under the business rules of the exchange as a suitably qualified affiliate of the exchange and who is involved in the carrying on of a business of dealing in securities (whether as an employee, director or in any other capacity); or

(b)  in relation to a body corporate that is, or proposes to become, a futures organisation - has a meaning affected by section 56; or

(c)  in relation to a company registered under the Corporations Law of any jurisdiction - a person who is a member under section 246A;

``member firm'' , in relation to a securities exchange, means a partnership that is a member organisation of the securities exchange;

``member organisation'' means:

(a)  in relation to a securities exchange or stock exchange:

(i) a person who is recognised under the business rules of the exchange as a suitably qualified participant of the exchange and who carries on a business of dealing in securities otherwise than in partnership; or

(ii) a partnership that is recognised under the business rules of the exchange as a suitably qualified participant of the exchange and that carries on a business of dealing in securities; and

(b)  in relation to a futures organisation:

(i) a member of the futures organisation that carries on a business of dealing in futures contracts otherwise than in partnership; or

(ii) a partnership that the futures organisation recognises as a member organisation, that carries on a business of dealing in futures contracts and each partner in which is a member of some futures organisation;

``members' voluntary winding up'' means a winding up under Part 5.5 where a declaration has been made and lodged pursuant to section 494;

[``memorandum''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``minerals'' means minerals in any form, whether solid, liquefied or gaseous and whether organic or inorganic;

``minimum holding buy-back'' means a buy-back of all of a holder's shares in a listed corporation if the shares are less than a marketable parcel within the meaning of the rules of the relevant securities exchange;

[``minimum subscription''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

[``mining company''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``mining purposes'' means any or all of the following purposes:

(a)  prospecting for ores, metals or minerals;

(b)  obtaining, by any mode or method, ores, metals or minerals;

(c)  the sale or other disposal of ores, metals, minerals or other products of mining;

(d)  the carrying on of any business or activity necessary for, or incidental to, any of the foregoing purposes;

whether in Australia or elsewhere, but does not include quarrying operations for the sole purpose of obtaining stone for building, roadmaking or similar purposes;

``Minister'' has the meaning given by section 80A;

``Ministerial Council'' means the Ministerial Council for Companies and Securities established by the Agreement made on 22 December 1978 between the Commonwealth and the States a copy of which is set out in the Schedule to the National Companies and Securities Commission Act 1979, being that agreement as amended or affected by any other agreement;

``misconduct'' includes fraud, negligence, default, breach of trust and breach of duty;

``modifications'' includes additions, omissions and substitutions;

``money'' includes a payment order;

``month'' means calendar month;

N

``national business names register'' means the record or records of information identified by the Minister in a notice under section 70 of the Corporations Act 1989;

``national newspaper'' means a daily newspaper that circulates generally in each State, the Capital Territory and the Northern Territory;

``NCSC'' means the National Companies and Securities Commission;

``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;

``negotiable instrument'' , in relation to a body corporate, means:

(a)  a bill of exchange, promissory note, cheque or other negotiable instrument;

(b)  an indorsement on, or order in, a bill of exchange, promissory note, cheque or other negotiable instrument; or

(c)  a letter of credit;

of, or purporting to be issued or signed by or on behalf of, the body;

``negative'' , in relation to a document, means a transparent negative photograph used, or intended to be used, as a medium for reproducing the contents of the document, and includes a transparent photograph made from surface contact with the original negative photograph;

[``new company''] (Definition omitted by No 110 of 1991, Sch 5 (effective 27 June 1991).)

``no liability company'' means a company that is registered as, or converts to, a no liability company under this Law.

Note 1:

A no liability company can be registered under section 118, 601BD or 1362B. A company can convert to a no liability company under Part 2B.7.

Note 2:

A no liability company must have solely mining purposes and have no contractual right to recover unpaid calls (see subsection 112(2)).

``nominee corporation'' means a body corporate whose principal business is the business of holding marketable securities asa trustee or nominee;

``non-broker'' means a person who is neither a futures broker nor one of 2 or more persons who together constitute a futures broker;

[``non-company''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``non-dealer'' means a person who is neither a dealer nor one of 2 or more persons who together constitute a dealer;

``non-voting share'' , in relation to a body corporate, means an issued share in the body that is not a voting share in the body;

``Northern Territory'' means the Northern Territory of Australia;

``notice'' includes a circular and an advertisement;

``NSEGC'' means the National Securities Exchanges Guarantee Corporation referred to in a previous law corresponding to Part 7.10;

O

``oath'' includes affirmation;

(``odd lot buy-back'') (Definition repealed by No 61 of 1998, Sch 2, Pt 3 (effective 1 July 1998).)

``of'' in relation to securities, means, in the case of interests in a managed investment scheme, made available by;

``offence'' means an offence against a law of the Commonwealth or a State or Territory;

[``offer''] (Definition repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

``offer information statement'' means an offer information statement that is lodged with ASIC;

``offer period'' for a takeover bid is the period for which offers under the bid remain open;

``office'' , in relation to the Commission, means an office of the Commission in this jurisdiction or elsewhere;

``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.

``official liquidator'' means a person registered as an official liquidator under section 1283 or deemed to be registered as an official liquidator under this Law;

``official manager'' means a person appointed as an official manager under Part 5.3;

``off-market bid'' means a takeover bid made under Chapter 6 as an off-market bid (see section 616);

``on'' , in relation to a stock market or futures market, includes at or by means of;

``on behalf of'' includes on the instructions of;

``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;

``on-market buy-back'' has the meaning given by subsections 257B(6) to (8).

[``open''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``option contract'' , in Chapter 7, means:

(a)  a contract under which a party acquires from another party an option or right, exercisable at or before a specified time, to buy from, or to sell to, that other party a number of specified securities, or of a specified class of securities, being securities of a kind referred to in paragraph 92(1)(a), (b), (c) or (d), at a price specified in, or to be determined in accordance with, the contract; or

(b)  a contract entered into on a stock market of a securities exchange or on an exempt stock market, being a contract under which a party to the contract acquires from another party to the contract an option or right, exercisable at or before a specified time:

(i) to buy from, or to sell to, that other party an amount of a specified foreign currency, or a quantity of a specified commodity, at a price specified in, or to be determined in accordance with, the contract; or

(ii) to be paid by that other party an amount of money to be determined by reference to the amount by which a specified number is greater or less than the number of a specified index, being the Australian Stock Exchanges All Ordinaries Price Index or a prescribed index, as at the time when the option or right is exercised;

``originating provision'' , in relation to a provision of this Law, means the provision enacted by the Parliament as a direct or indirect result of which the provision of this Law was included in this Law;

``other jurisdictions'' means 2 or more jurisdictions other than this jurisdiction;

``outstanding property'' , in relation to a body corporate that has been dissolved or deregistered, means outstanding property (other than unpaid capital, whether called or uncalled) that was vested in the body, to which it was entitled, or over which it had a disposing power, when it was dissolved or deregistered, but that neither the body nor its liquidator got in, realised on or otherwise disposed of or dealt with;

``own account'' has:

(a)  in relation to a person dealing in a futures contract - a meaning affected by section 29; or

(b)  in relation to a person dealing in, or entering into a transaction in relation to, securities - a meaning affected by section 84;

P

(``paid up'') (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

(``parent entity'') (Definition repealed by No 156 of 1999, Sch 3, Pt 4 (effective 13 March 2000). )

``Parliament'' means the Parliament of the Commonwealth;

``Part 5.1 body'' means:

(a)  a company; or

(b)  a registrable body (other than a registrable local body) that is registered under Division 1 or 2 of Part 5B.2 of the Corporations Law of this jurisdiction;

``Part 5.7 body'' means:

(a)  a registrable body (other than a registrable local body) that:

(i) is registered under Division 1 or 2 of Part 5B.2 of the Corporations Law of this jurisdiction; or

(ii) carries on business in this jurisdiction; or

(b)  a partnership, association or other body (whether a body corporate or not) that consists of more than 5 members;

[``participating employee''] (Definition repealed by No 61 of 1998, Sch 2, Pt 3 (effective 1 July 1998).)

[``participation interest''] (Definition repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``party'' :

(a)  in relation to a transaction - includes, if the transaction has been completed or given effect to, or has been terminated, a person who was a party to the transaction; and

(b)  in relation to a Chapter 8 agreement - means, in the case of a proposed or discharged relevant agreement, a person who would be a party to the relevant agreement if it were in effect;

``payment'' (when used in Division 2 of Part 2D.2 (sections 200B to 1813)) includes a payment by way of damages for breach of contract;

``payment order'' means a cheque (including a cheque that a bank or other institution draws on itself), bank draft, money order or postal order;

``penalty unit'' means $100;

``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;

``place of origin'' , in relation to a body corporate, means:

(a)  in the case of a body incorporated in a State or Territory - that State or Territory; or

(b)  otherwise - the place of the body's incorporation;

``possession'' has a meaning affected by section 86;

``power'' includes an authority;

``premises'' includes:

(a)  a structure, building, aircraft, vehicle or vessel;

(b)  any land or place (whether enclosed or built on or not); and

(c)  a part of a structure, building, aircraft, vehicle or vessel or of such a place;

``prescribed'' means prescribed by the Corporations Law of this jurisdiction, by the regulations or by the rules;

[``prescribed interest''] (Definition repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``previous Fund'' means the National Guarantee Fund that was established under subsection 122CA(1) of the Securities Industry Act 1980;

``price'' , in relation to a commodity agreement or a futures contract, or in Chapter 8, includes any amount payable for the delivery of a commodity under an agreement;

[``primary prospectus''] (Definition omitted by No 31 of 1994, Sch 2, Pt 1 (effective 4 September 1994).)

[``principal Australian register''] (Definition omitted by No 115 of 1995, Sch 6 (effective 9 December 1995).)

[``principal executive officer''] (Definition omitted by No 115 of 1995, Sch 6 (effective 9 December 1995).)

[``principal register''] (Definition omitted by No 115 of 1995, Sch 6 (effective 9 December 1995).)

``printed'' includes type-written, lithographed or reproduced by any mechanical means;

``Proclamation'' means a Proclamation by the Governor-General published in the Gazette;

``procure'' includes cause;

``profile statement'' means a profile statement that is lodged with ASIC;

[``profit and loss account''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

[``profit or loss''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

[``promoter''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

``proper authority'' has:

(a)  in relation to a futures licensee - the meaning given by subsection 87(1); and

(b)  in relation to a securities licensee - the meaning given by subsection 88(1);

``proper SCH transfer'' means:

(a)  an SCH-regulated transfer of a quoted security or quoted right effected in accordance with the SCH business rules; or

(b)  a transfer that is taken by section 1097D to be a proper SCH transfer;

``property'' means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action;

``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;

``proportional takeover bid'' means an off-market bid for a specified proportion of the securities in the bid class (see paragraph 618(1)(b));

``proprietary company'' has the meaning given by subsection 45A(1);

[``proprietary company provisions''] (Definition omitted by No 115 of 1995, Sch 4 (effective 9 December 1995).)

``prospectus'' means a prospectus that is lodged with ASIC;

``prove'' includes establish in any way (for example, but without limitation, through the operation of a presumption for which this Law or any other law of this jurisdiction provides);

``providing finance'' means

(a)  lending money; or

(b)  giving guarantees or security for loans made by someone else; or

(c)  drawing, accepting, indorsing, negotiating or discounting a bill of exchange, cheque, payment order or promissory note so that someone can obtain funds.

``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;

``public company'' means a company other than a proprietary company and:

(a)  in subsection 849(1), includes a body corporate that is a public company for the purposes of the Corporations Law of another jurisdiction; and

(b)  in section 195, Chapter 2E and section 1376, includes a body corporate (other than a prescribed body corporate) that:

(i) is incorporated, or taken to be incorporated, in this jurisdiction, but not under the Corporations Law of this jurisdiction; and

(ii) is included in the official list of a securities exchange; and

(c)  in Chapter 2E and section 1376 does not include a company that does not have ``Limited'' in its name because of section 150 or 151;

[``public corporation''] (Definition repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``public document'' , in relation to a body corporate, has the meaning given by section 88A;

``publish'' :

(a)  in relation to a notice - means, in Chapter 7, publish by any means, including in a newspaper or periodical, by broadcasting or televising or in a cinematograph film; and

(b)  in any case - includes issue;

Q

``qualified accountant'' means a member of a professional body that is approved by ASIC in writing for the purposes of this definition;

``qualified privilege'' has the meaning given by section 89;

``quarter day'' means 31 March, 30 June, 30 September or 31 December;

``quotation'' , in relation to securities, in relation to a stock market of a securities exchange, or of a stock exchange, within the meaning of the provision where the expression occurs, includes the displaying or providing, on a stock market of the securities exchange or stock exchange, of information concerning:

(a)  if offers to sell, purchase or exchange the securities at particular prices, or for particular consideration, are made or accepted on that stock market - those prices or that consideration;

(b)  if offers or invitations are made on that stock market, being offers or invitations that are intended, or may reasonably be expected, to result in the making or acceptance of offers to sell, purchase or exchange the securities at particular prices, or for particular consideration - those prices or that consideration; or

(c)  in any case - the price at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange the securities;

``quoted ED securities'' has the meaning given by section 111AM;

``quoted right'' has the meaning given by section 1097A;

Note:

The meaning of ``quoted right'' may be extended by the SCH business rules (under section 1097B) or by a Commission declaration (under section 1097C).

``quoted security'' has the meaning given by section 1097A;

Note:

The meaning of ``quoted security'' may be extended by the SCH business rules (under section 1097B) or by a Commission declaration (under section 1097C).

R

``receiver and manager'' has a meaning affected by section 90;

``recognised company'' means a body corporate that, because of the definition of ``company'' in section 9 of the Corporations Law of another jurisdiction, is a company for the purposes of that section of that Law;

``recognised futures exchange'' means a body corporate that:

(a)  conducts a futures market outside Australia; and

(b)  is prescribed for the purposes of this definition;

``record'' includes information stored or recorded by means of a computer;

``redeemable preference share'' means a preference share in a body corporate that is, or at the body's option is to be, liable to be redeemed;

``register'' means register under this Law.

REGISTERED

``registered Australian body'' means:

(a)  in this Chapter - a registrable Australian body that is registered under Division 1 of Part 5B.2; or

(b)  otherwise - a registrable Australian body that is registered under Division 1 of Part 5B.2 of the Corporations Law of this jurisdiction;

``registered body'' means:

(a)  in this Chapter or section 601CX or 601CY - a registered Australian body or a registered foreign company; or

(b)  otherwise - a registrable body that is registered under Division 1 or 2 of Part 5B.2 of the Corporations Law of this jurisdiction;

``registered company auditor'' means:

(a)  in sections 1287 and 1288 - a person registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the Corporations Law of this jurisdiction; and

(b)  otherwise - a person registered as an auditor, or taken to be registered as an auditor, under Part 9.2;

and, in relation to a body corporate that is not a company, includes a person qualified to act as the body's auditor under the law of the body's incorporation;

``registered foreign company'' means:

(a)  in this Chapter or section 601CX - a foreign company that is registered under Division 2 of Part 5B.2; or

(b)  otherwise - a foreign company that is registered under Division 2 of Part 5B.2 of the Corporations Law of this jurisdiction;

``registered liquidator'' means:

(a)  in sections 1287 and 1288 - a person registered as a liquidator under subsection 1282(2), or taken to be registered as a liquidator under Part 9.2, of the Corporations Law of this jurisdiction; and

(b)  otherwise - a person registered as a liquidator under subsection 1282(2) or taken to be registered as a liquidator under Part 9.2;

``registered office'' , in relation to a body corporate, means the body's registered office under section 142 or 601CT, as the case requires;

``registered scheme'' means a managed investment scheme that is registered under section 601EB.

``registrable Australian body'' means:

(a)  a body corporate, not being:

(i) a company; or

(ii) a recognised company; or

(iii) an exempt public authority; or

(iv) a corporation sole; or

(b)  an unincorporated body that, under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose;

but does not include a foreign company;

``registrable body'' means a registrable Australian body or a foreign company;

``registrable local body'' means a registrable Australian body that:

(a)  is incorporated in this jurisdiction; or

(b)  is unincorporated but is formed, or has its head office or principal place of business, in this jurisdiction;

[``registration application''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``registration day''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``registration number''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``regulations'' means the Corporations Regulations of this jurisdiction;

``related body corporate'' , in relation to a body corporate, means a body corporate that is related to the first-mentioned body by virtue of section 50;

``related entity'' , in relation to a body corporate, means any of the following:

(a)  a promoter of the body;

(b)  a relative, or de facto spouse, of such a promoter;

(c)  a relative of a spouse, or of a de facto spouse, of such a promoter;

(d)  a director or member of the body or of a related body corporate;

(e)  a relative, or de facto spouse, of such a director or member;

(f)  a relative of a spouse, or of a de facto spouse, of such a director or member;

(g)  a body corporate that is related to the first-mentioned body;

(h)  a beneficiary under a trust of which the first-mentioned body is or has at any time been a trustee;

(i)  a relative, or de facto spouse, of such a beneficiary;

(j)  a relative of a spouse, or of a de facto spouse, of such a beneficiary;

(k)  a body corporate one of whose directors is also a director of the first-mentioned body;

(l)  a trustee of a trust under which a person is a beneficiary, where the person is a related entity of the first-mentioned body because of any other application or applications of this definition;

``related party'' (when used in Chapter 2E) has the meaning given by section 228;

``relation-back day'' , in relation to a winding up of a company or Part 5.7 body, means:

(a)  if, because of Division 1A of Part 5.6, the winding up is taken to have begun on the day when an order that the company or body be wound up was made - the day on which the application for the order was filed; or

(b)  otherwise - the day on which the winding up is taken because of Division 1A of Part 5.6 to have begun;

``relative'' , in relation to a person, means the spouse, parent or remoter lineal ancestor, son, daughter or remoter issue, or brother or sister of the person;

``relevant agreement'' means an agreement, arrangement or understanding:

(a)  whether formal or informal or partly formal and partly informal;

(b)  whether written or oral or partly written and partly oral; and

(c)  whether or not having legal or equitable force and whether or not based on legal or equitable rights;

[``relevant body''] (Definition repealed by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000). )

``relevant date'' , in relation to a winding up, means the day on which the winding up is taken because of Division 1A of Part 5.6 to have begun;

Note:

Subsection 553(1B) modifies the operation of this definition for debts and claims that arise while a company is under a deed of company arrangement if the deed terminates immediately before the winding up.

``relevant interest'' , in relation to securities, has a meaning given by sections 608 and 609;

``relevant previous law'' , in relation to a jurisdiction, means:

(a)  in the case of the Capital Territory - a relevant Act within the meaning of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980; and

(b)  in the case of any other jurisdiction - a relevant Code within the meaning of a law of that other jurisdiction;

``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;

``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;

``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;

``renounceable option'' means an assignable option to have an allotment of shares in a body corporate made to the holder of the option;

[``replacement prospectus''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

[``reporting entity''] (Definition repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

``representative'' means:

(a)  in Chapter 7 - a securities representative; or

(b)  in Chapter 8 - a futures representative;

``reproduction'' , in relation to a document, means a machine-copy of the document or a print made from a negative of the document;

[``reserve''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``resolution'' , in relation to creditors or contributories, means a resolution passed at a meeting of the creditors or contributories;

``resolution for voluntary winding up'' means the special resolution referred to in section 491;

``responsible entity'' of a registered scheme means the company named in ASIC's record of the scheme's registration as the responsible entity or temporary responsible entity of the scheme;

``responsible officer'' means:

(a)  in relation to a body corporate that is, or proposes to be, a member of another body corporate:

(i) a director or executive officer of the first-mentioned body; or

(ii) a person who has control or substantial control of the first-mentioned body; and

(b)  in relation to a body corporate that applies for a licence - an officer of the body who would perform duties in connection with the holding of the licence;

``result'' includes:

(a)  when used as a verb - result indirectly; and

(b)  when used as a noun - an indirect result;

``retirement village scheme'' means a scheme, undertaking or enterprise (in this definition called the ``relevant scheme''), whether in Australia or elsewhere, that is being, or is proposed to be, carried out or undertaken with the intention that the participants, or a majority of the participants, in the relevant scheme be provided, in connection with the relevant scheme, with residential accommodation within a retirement community, whether or not the entitlement of a participant to be provided with such accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is provided, but does not include a time-sharing scheme;

``revoke'' , in relation to an accounting standard, means, in the case of a provision of an accounting standard, vary the last-mentioned accounting standard by omitting the provision;

``rules'' means:

(a)  rules of the Federal Court; or

(b)  rules of the Supreme Court of this or another jurisdiction;

as the case requires;

S

``same kind'' , in relation to a Chapter 8 agreement, has the meaning given by section 54;

``SCH'' is short for securities clearing house;

``SCH business rules'' means the business rules (within the meaning of Chapter 7) of the securities clearing house;

``SCH certificate cancellation provisions'' means the provisions of the SCH business rules that deal with:

(a)  brokers cancelling certificates or other documents of title to quoted securities or quoted rights; and

(b)  matters incidental to brokers cancelling such certificates or documents;

``SCH participant'' means a person who, or a partnership that, under the SCH business rules, is entitled to participate in the facilities provided by the securities clearing house;

``SCH-regulated transfer'' means a transfer (within the meaning of Division 3 of Part 7.13) of a quoted security or a quoted right that, according to the SCH business rules, is an SCH-regulated transfer;

``SCH subregister'' means a subregister of quoted securities or quoted rights maintained by the SCH under the SCH business rules;

``scheme property'' of a registered scheme means:

(a)  contributions of money or money's worth to the scheme; and

(b)  money that forms part of the scheme property under provisions of this Law or the ASIC Law; and

(c)  money borrowed or raised by the responsible entity for the purposes of the scheme; and

(d)  property acquired, directly or indirectly, with, or with the proceeds of, contributions or money referred to in paragraph (a), (b) or (c); and

(e)  income and property derived, directly or indirectly, from contributions, money or property referred to in paragraph (a), (b), (c) or (d).

Note 1:

Paragraph (a) - if what a member contributes to a scheme is rights over property, the rights in the property that the member retains do not form part of the scheme property.

Note 2:

For provisions that are relevant to paragraph (b), see subsections 177(4), 1317HA(1A), 1317HB(3) and 1317HD(3) of this Law and subsection 93A(5) of the ASIC Law.

``scrip'' means documents that are, or are documents of title to, securities;

[``secondary prospectus''] (Definition omitted by No 31 of 1994, Sch 2, Pt 1 (effective 4 September 1994).)

[``section 229 prohibition''] (Definition repealed by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000). )

[``section 230 order''] (Definition repealed by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000). )

``section 513C day'' , in relation to the administration of a company, has the meaning given by section 513C;

[``section 599 order''] (Definition repealed by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000). )

[``section 600 notice''] (Definition repealed by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000). )

``section 770A stock market'' means a stock market in relation to which an approval under section 770A is in force;

SECURlTlES

``securities'' has the meaning given by section 92;

``securities adviser'' means a dealer, an investment adviser or a securities representative of a dealer or of an investment adviser;

``securities business'' has the meaning given by section 93;

Note:

The activities of the securities clearing house will not generally constitute a securities business - see subsection 779J(1).

``securities clearing house'' means the body corporate in relation to which an approval under section 779B is in force;

``securities exchange'' means:

(a)  in a provision (other than a provision of this Chapter or Chapter 6 or 7) for the purposes of which a regulation is in force defining that expression - a securities exchange as defined by that regulation; or

(b)  in Chapter 6:

(i) the Exchange;

(ii) Australian Stock Exchange (Adelaide) Limited;

(iii) Australian Stock Exchange(Brisbane) Limited;

(iv) Australian Stock Exchange (Hobart) Limited;

(v) Australian Stock Exchange (Melbourne) Limited;

(vi) Australian Stock Exchange (Perth) Limited;

(vii) Australian Stock Exchange (Sydney) Limited; or

(viii) a body corporate that is declared by the regulations to be a securities exchange for the purposes of that Chapter; or

(c)  in this Chapter, section 773, 778, 779, 874 or 879, subsection 920(1) or Chapter 6D:

(i) a stock exchange; or

(ii) a body corporate in relation to which an approval under section 770 is in force; or

(d)  in any other provision of Chapter 7:

(i) a local stock exchange; or

(ii) an approved securities organisation;

``securities law'' means a provision of Chapter 5C, 6, 6A, 6B, 6C, 6D or 7 or a corresponding previous law;

``securities licence'' means a dealers licence or an investment advisers licence;

``securities licensee'' means a person who holds a securities licence;

``securities recommendation'' means a recommendation with respect to securities or a class of securities, whether made expressly or by implication;

``securities report'' means an analysis or report about securities;

``securities representative'' has the meaning given by section 94;

``SEGC'' means a body corporate in relation to which a nomination as the Securities Exchanges Guarantee Corporation is in force under subsection 67(1) of the Corporations Act 1989 or is taken because of subsection 67(5) of that Act to be so in force;

``selective buy-back'' means a buy-back that is none of the following:

(a)  a buy-back under an equal access scheme within the meaning of subsections 257B(2) and (3)

(b)  a minimum holding buy-back

(c)  an on-market buy-back

(d)  an employee share scheme buy-back;

[``seller''] (Definition omitted by No 31 of 1994, Sch 2, Pt 1 (effective 4 September 1994).)

``serious fraud'' means an offence involving fraud or dishonesty, being an offence:

(a)  against an Australian law or any other law; and

(b)  punishable by imprisonment for life or for a period, or maximum period, of at least 3 months;

[``share''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

``sheriff'' includes a person charged with the execution of a writ or other process;

[``sibling entity''] (Definition repealed by No 156 of 1999, Sch 3, Pt 4 (effective 13 March 2000). )

[``sign''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``small proprietary company'' has the meaning given by subsection 45A(2);

``sold position'' means:

(a)  in relation to a commodity agreement, or in relation to a futures contract, being a commodity agreement - the position of a person who, by virtue of the agreement, is under a Chapter 8 obligation to make delivery in accordance with the agreement; or

(b)  in relation to a futures contract, being an adjustment agreement - the position of a person who, by virtue of the agreement:

(i) will, if the value or worth of the agreement (as determined in accordance with the agreement) as at a particular future time exceeds by a particular amount the value or worth of the agreement (as so determined) as at a particular earlier time, be under a Chapter 8 obligation to pay that amount; and

(ii) will, if the value or worth of the agreement (as so determined) as at a particular future time is less by a particular amount than the value or worth of the agreement (as so determined) as at a particular earlier time, have a Chapter 8 right to receive that amount;

``sole trader'' means a person who is a member organisation of a securities exchange;

``solvent'' has the meaning given by subsection 95A(1);

``special resolution'' means:

(a)  in relation to a company, a resolution:

(i) of which notice as set out in paragraph 249L(c) has been given; and

(ii) that has been passed by at least 75% of the votes cast by members entitled to vote on the resolution; or

(b)  in relation to a registered scheme, a resolution:

(i) of which notice as set out in paragraph 252J(c) has been given; and

(ii) that has been passed by at least 75% of the votes cast by members entitled to vote on the resolution.

[``special services provider''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

``staff member'' , in relation to the Commission, means a person who is a staff member for the purposes of the Commission Act;

``standard opening hours'' means 10 am to 12 noon and 2 pm to 4 pm each business day;

``standardised agreement'' means a Chapter 8 agreement that is one of 2 or more Chapter 8 agreements each of which is a Chapter 8 agreement of the same kind as the other, or as each of the others, as the case may be;

``State'' means a State of the Commonwealth and includes the Northern Territory;

``State Fair Trading Act'' means the following Acts for each jurisdiction:

--------------------------------------------------------
   State Fair Trading Acts
--------------------------------------------------------
   Jurisdiction               Act
--------------------------------------------------------
 1 New South Wales            Fair Trading Act 1987 (NSW)
--------------------------------------------------------
 2 Victoria                   Fair Trading Act 1985
--------------------------------------------------------
 3 Queensland                 Fair Trading Act 1987
--------------------------------------------------------
 4 South Australia            Fair Trading Act 1987
--------------------------------------------------------
 5 Western Australia          Fair Trading Act 1987
--------------------------------------------------------
 6 Tasmania                   Fair Trading Act 1990
--------------------------------------------------------
 7 Northern Territory         Fair Trading Act 1990
--------------------------------------------------------
 8 Australian Capital         Fair Trading Act 1992
   Territory
--------------------------------------------------------


      

``statement'' , in Chapter 7, includes matter that is not written but conveys a message;

``statutory declaration'' means a declaration made by virtue of any Act of the Commonwealth, of a State or of a Territory authorising a declaration to be made otherwise than in the course of a judicial proceeding;

``statutory demand'' means:

(a)  a document that is, or purports to be, a demand served under section 459E; or

(b)  such a document as varied by an order under subsection 459H(4);

[``statutory meeting''] (Definition repealed by No 61 of 1998, Sch 2, Pt 2 (effective 1 July 1998).)

``statutory minimum'' means:

(a)  if an amount greater than $2,000 is prescribed - the prescribed amount; or

(b)  otherwise - $2,000;

[``statutory report''] (Definition repealed by No 61 of 1998, Sch 2, Pt 2 (effective 1 July 1998).)

``stock exchange'' means:

(a)  in a provision (other than a provision of this Chapter or Chapter 6 or 7) for the purposes of which a regulation is in force defining that expression - a stock exchange as defined by that regulation; or

(b)  in Chapter 6:

(i) the Exchange;

(ii) Australian Stock Exchange (Adelaide) Limited;

(iii) Australian Stock Exchange (Brisbane) Limited;

(iv) Australian Stock Exchange (Hobart) Limited;

(v) Australian Stock Exchange (Melbourne) Limited;

(vi) Australian Stock Exchange (Perth) Limited;

(vii) Australian Stock Exchange (Sydney) Limited; or

(viii) a body corporate that is declared by the regulations to be a stock exchange for the purposes of that Chapter; or

(c)  in this Chapter or section 869 or 1115 - any of the following:

(i) the Exchange;

(ii) Australian Stock Exchange (Adelaide) Limited;

(iii) Australian Stock Exchange (Brisbane) Limited;

(iv) Australian Stock Exchange (Hobart) Limited;

(v) Australian Stock Exchange (Melbourne) Limited;

(vi) Australian Stock Exchange (Perth) Limited;

(vii) Australian Stock Exchange (Sydney) Limited;

(viii) the Stock Exchange of Bendigo Limited;

(ix) the Stock Exchange of Ballarat Limited;

(x) the Stock Exchange of Newcastle Limited;

(xi) a body corporate in relation to which an approval under section 769 is in force; or

(d)  in any other provision of Chapter 7 - a local stock exchange;

``stock market'' means, subject to section 97, a market, exchange or other place at which, or a facility by means of which:

(a)  offers to sell, purchase or exchange securities are regularly made or accepted;

(b)  offers or invitations are regularly made, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange securities; or

(c)  information is regularly provided about the prices at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange securities;

``subscriber'' for securities that are interests in a managed investment scheme means any person:

(a)  accepting an offer, or making an offer pursuant to an invitation, in respect of the interests; or

(b)  subscribing for or buying the interests.

``subsidiary'' , in relation to a body corporate, means a body corporate that is a subsidiary of the first-mentioned body by virtue of Division 6;

``substantial 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.

``substantial part'' , in relation to activities, includes the whole of those activities;

[``supplementary prospectus''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

``suspend'' , in relation to a licence, includes, except in sections 827 and 1192, make under section 827 or 1192, as the case requires, an order prohibiting the licensee as mentioned in paragraph 827(1)(d) or 1192(1)(d);

``swear'' , in relation to an affadavit, means, in the case of an affirmation, affirm;

T

(``Table A'') (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

(``Table A proprietary company'') (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

[``Table B''] (Definition repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

``takeover bid'' means an off-market bid or market bid made under Chapter 6;

``takeover contract'' means a contract that results from the acceptance of an offer made under a takeover bid;

[``takeover scheme''] (Definition repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

``target'' for a takeover bid means the company, listed body or managed investment scheme whose securities are to be acquired under the bid;

``target's statement'' means a target's statement under sections 638 to 640 as supplemented;

``Territory'' means a Territory referred to in section 122 of the Constitution, other than the Northern Territory;

``Territory'' means the Capital Territory or an external Territory;

[``this Act''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``this jurisdiction'' includes the coastal sea of this jurisdiction;

``this Law'' has the additional meaning given by sections 8 and 8A;

``time-sharing scheme'' means a scheme, undertaking or enterprise, whether in Australia or elsewhere:

(a)  participants in which are, or may become, entitled to use, occupy or possess, for 2 or more periods during the period for which the scheme, undertaking or enterprise is to operate, property to which the scheme, undertaking or enterprise relates; and

(b)  that is to operate for a period of not less than 3 years;

``trade'' , in relation to securities, in relation to a stock market, includes:

(a)  make or accept on that stock market an offer to sell, buy or exchange the securities; and

(b)  make on that stock market an offer or invitation that is intended, or may reasonably be expected, to result in the making or acceptance of an offer to sell, buy or exchange the securities;

[``trading activities''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

[``trading corporation''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``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;

``trading floor'' , in relation to a futures market conducted by a body corporate, means a place or facility that the body maintains or provides for the acquisition or disposal of futures contracts by members of the body, or by such members and other persons;

``transaction'' , in Part 5.7B, in relation to a body corporate or Part 5.7 body, means a transaction to which the body is a party, for example (but without limitation):

(a)  a conveyance, transfer or other disposition by the body of property of the body; and

(b)  a charge created by the body on property of the body; and

(c)  a guarantee given by the body; and

(d)  a payment made by the body; and

(e)  an obligation incurred by the body; and

(f)  a release or waiver by the body; and

(g)  a loan to the body;

and includes such a transaction that has been completed or given effect to, or that has terminated;

[``transfer day''] (Definition omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

``transmission'' means a transmission, by means of electric or electromagnetic energy, of:

(a)  sounds, including speech and music;

(b)  visual images;

(c)  signals for the communication, whether as between persons and persons, persons and things or things and things, of any matter otherwise than in the form of sounds or visual images; or

(d)  signals for the actuation or control of machinery or apparatus;

``transparency'' , in relation to a document, means:

(a)  a developed negative or positive photograph of that document (in this definition called an ``original photograph'') made, on a transparent base, by means of light reflected from, or transmitted through, the document;

(b)  a copy of an original photograph made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with the original photograph; or

(c)  any one of a series of copies of an original photograph, the first of the series being made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b), and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series;

``Tribunal'' means the Administrative Appeals Tribunal;

[``Type A body''] (Definition omitted by No 110 of 1990, Sch 1 (effective date 18 December 1990).)

[``Type B body''] (Definition omitted by No 110 of 1990, Sch 1 (effective date 18 December 1990).)

U

``ultimate holding company'' , in relation to a body corporate, means a body corporate that:

(a)  is a holding company of the first-mentioned body; and

(b)  is itself a subsidiary of no body corporate;

``unauthorised futures market'' means a futures market that is neither a futures market of a futures exchange nor an exempt futures market;

``unauthorised stock market'' means a stock market that is not:

(a)  a stock market of a securities exchange; or

(b)  a section 770A stock market; or

(c)  an exempt stock market;

``unclaimed money account'' means an account that:

(a)  the Commission maintains under section 63J of the Audit Act 1901; and

(b)  is maintained for the sole purpose of containing money that is unclaimed property;

Note:

An unclaimed money account is an example of an account for which section 141 of the Australian Securities and Investments Commission Act 1989 provides. That section relates to money the Commission receives or holds on trust.

``unclaimed property'' means:

(a)  property paid or transferred to the Commission under a provision of this Law that provides for property to be transferred, or for the Court to direct that property be transferred, to the Commission to be dealt with under Part 9.7; or

(b)  any other property that a provision of this Law provides for the Commission to deal with under Part 9.7; or

(c)  property that vests in the Commission under section 1404; or

(d)  an accretion to, or substitution for, property that is unclaimed property because of any other application or applications of this definition; or

(e)  without limiting paragraph (d), money paid, or required to be paid, under paragraph 1339(2)(b) into an unclaimed money account;

but does not include income that the Minister has applied under subsection 1339(3);

``uncommercial transaction'' has the meaning given by section 588FB;

[``underlying''] (Definition repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

``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;

``undertaking'' , in relation to a managed investment scheme, means the undertaking, scheme, enterprise, contract or arrangement to which the scheme relates.

``underwrite'' includes sub-underwrite;

``unfair loan'' has the meaning given by section 588FD;

``unfair preference'' has the meaning given by section 588FA;

``unit'' , in relation to a share, debenture or other interest, means a right or interest, whether legal or equitable, in theshare, debenture or other interest, by whatever term called, and includes an option to acquire such a right or interest in the share, debenture or other interest;

``unlimited company'' means a company whose members have no limit placed on their liability;

``unlisted disclosing entity'' has the meaning given by subsection 111AL(2);

``unsecured'' , in relation to a debt, has in Part 5.7B a meaning affected by section 588D;

V

``value'' , in relation to an asset, includes amount;

``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;

``voting power'' in a company has the meaning given by section 610;

``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;

W

``wages'' , in relation to a company, means amounts payable to or in respect of an employee of the company (whether the employee is remunerated by salary, wages, commission or otherwise) under an industrial instrument, including amounts payable by way of allowance or reimbursement but excluding amounts payable in respect of leave of absence;

``wholly-owned subsidiary'' , in relation to a body corporate, means a body corporate none of whose members is a person other than:

(a)  the first-mentioned body;

(b)  a nominee of the first-mentioned body;

(c)  a subsidiary of the first-mentioned body, being a subsidiary none of whose members is a person other than:

(i) the first-mentioned body; or

(ii) a nominee of the first-mentioned body; or

(d)  a nominee of such a subsidiary.

``winding up by the Court'' includes winding up in insolvency;

[``withdrawable share''] (Definition repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

``wound up by the Court'' includes wound up in insolvency;

``writing'' includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form.

Division 2 - Associates

SECTION 10   EFFECT OF DIVISION  

10(1)  (Interpretative purpose)  

This Division has effect for the purposes of interpreting a reference (in this Division called the ``associate reference'' ), in relation to a person (in this Division called the ``primary person'' ), to an associate.

10(2)  (Exclusive effect of Division)  

A person is not an associate of the primary person except as provided in this Division.

10(3)  (Generality not limited)  

Nothing in this Division limits the generality of anything else in it.

SECTION 11   ASSOCIATES OF BODIES CORPORATE  

11    If the primary person is a body corporate, the associate reference includes a reference to:

(a)  a director or secretary of the body;

(b)  a related body corporate; and

(c)  a director or secretary of a related body corporate.

SECTION 12   MATTERS RELATING TO VOTING SHARES  

12(1)  (Relevant agreement)  

If the associate reference relates to:

(a)  the extent of a power to exercise, or to control the exercise of, the voting power attached to voting shares in a body corporate;

(b)  the primary person's voting power in a body corporate; or

(c)  a takeover bid for securities in a body corporate;

it includes a reference to a person with whom the primary person has, or proposes to enter into, a relevant agreement:

(d)  because of which one of those persons has or will have power (even if it is in any way qualified):

(i) to exercise;

(ii) to control, directly or indirectly, the exercise of; or

(iii) to influence substantially the exercise of;

any voting power attached to shares in the body;

(e)  for the purpose of controlling or influencing:

(i) the composition of the body's board; or

(ii) the conduct of affairs of the body;

(f)  under which one of those persons:

(i) will or may acquire; or

(ii) may be required by the other to acquire;

shares in the body in which the other has a relevant interest; or

(g)  under which one of those persons may be required to dispose of shares in the body in accordance with the other's directions;

whatever other effect the relevant agreement may have.

12(2)  (Two-way association)  

In relation to a matter relating to shares in a body corporate, a person may be an associate of the body and the body may be an associate of a person.

SECTION 13   REFERENCES IN CHAPTER 7  

13    If the associate reference occurs in Chapter 7 and relates to a matter that is not of a kind referred to in paragraph 12(1)(a), (b) or (c), it includes a reference to:

(a)  a person in partnership with whom the primary person carries on a securities business;

(b)  subject to subsection 16(2), a person who is a partner of the primary person otherwise than because of carrying on a securities business in partnership with the primary person;

(c)  a trustee of a trust in relation to which the primary person benefits, or is capable of benefiting, otherwise than because of transactions entered into in the ordinary course of business in connection with the lending of money;

(d)  a director of a body corporate of which the primary person is also a director and that carries on a securities business; and

(e)  subject to subsection 16(2), a director of a body corporate of which the primary person is also a director and that does not carry on a securities business.

SECTION 14   REFERENCES IN CHAPTER 8  

14    If it occurs in section 29 or 1323 or Chapter 8, the associate reference includes a reference to:

(a)  a person in partnership with whom the primary person carries on a business of dealing in futures contracts;

(b)  subject to subsection 16(2), a person who is a partner of the primary person otherwise than because of carrying on in partnership with the primary person a business of dealing in futures contracts;

(c)  a trustee of a trust in relation to which the primary person benefits, or is capable of benefiting, otherwise than because of transactions entered into in the ordinary course of business in connection with the lending of money;

(d)  a director of a body corporate of which the primary person is also a director and that carries on a business of dealing in futures contracts; and

(e)  subject to subsection 16(2), a director of a body corporate of which the primary person is also a director and that does not carry on a business of dealing in futures contracts.

SECTION 15   GENERAL  

15(1)  [Persons to whom associate reference applies]  

The associate reference includes a reference to:

(a)  a person in concert with whom the primary person is acting, or proposes to act;

(b)  a person who, under the regulations, is, for the purposes of the provision in which the associate reference occurs, an associate of the primary person; and

(c)  a person with whom the primary person is, or proposes to become, associated, whether formally or informally, in any other way;

in respect of the matter to which the associate reference relates.

15(2)  [Entering into association]  

If the primary person has entered, or proposes to enter, into a transaction, or has done, or proposes to do, any act or thing, in order to become associated with another person as mentioned in an applicable provision of this Division, the associate reference includes a reference to that other person.

SECTION 16   EXCLUSIONS  

16(1)  [Specified exclusions]  

A person is not an associate of another person by virtue of section 12 or subsection 15(1), or by virtue of subsection 15(2) as it applies in relation to section 12 or subsection 15(1), merely because of one or more of the following:

(a)  one gives advice to the other, or acts on the other's behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship;

(b)  one, a client, gives specific instructions to the other, whose ordinary business includes dealing in securities, to acquire shares on the client's behalf in the ordinary course of that business;

(c)  one had sent, or proposes to send, to the other an offer under a takeover bid for shares held by the other;

(d)  one has appointed the other, otherwise than for valuable consideration given by the other or by an associate of the other, to vote as a proxy or representative at a meeting of members, or of a class of members, of a body corporate.

16(2)  [Necessity for knowledge]  

For the purposes of proceedings under this Law in which it is alleged that a person was an associate of another person by virtue of paragraph 13(b) or (e) or 14(b) or (e), the first-mentioned person shall not be taken to have been an associate of the other person in relation to a matter by virtue of that paragraph unless it is proved that the first-mentioned person knew, or ought to have known, at that time, the material particulars of that matter.

SECTION 17   ASSOCIATES OF COMPOSITE PERSONS  

17    A reference to an associate, in relation to a dealer, investment adviser, futures broker or futures adviser, is, if 2 or more persons constitute the dealer, investment adviser, futures broker or futures adviser, a reference to an associate of any of those persons.

Division 3 - Carrying on business

SECTION 18   CARRYING ON BUSINESS: OTHERWISE THAN FOR PROFIT  

18    A reference to a person carrying on business, carrying on a business, or carrying on a business of a particular kind, includes a reference to the person carrying on business, carrying on a business, or carrying on a business of that kind, as the case may be:

(a)  in any case - otherwise than for profit; or

(b)  in the case of a body corporate - otherwise than for the profit of the members or corporators of the body.

SECTION 19   BUSINESSES OF A PARTICULAR KIND  

19    A reference to a business of a particular kind includes a reference to a business of that kind that is part of, or is carried on in conjunction with, any other business.

SECTION 20   CARRYING ON A BUSINESS: ALONE OR TOGETHER WITH OTHERS  

20    A reference in this Law to a person carrying on a business, or a business of a particular kind, is a reference to the person carrying on a business, or a business of that kind, whether alone or together with any other person or persons.

SECTION 21   CARRYING ON BUSINESS IN AUSTRALIA OR A STATE OR TERRITORY  

21(1)  [Place of business]  

A body corporate that has a place of business in Australia, or in a State or Territory, carries on business in Australia, or in that State or Territory, as the case may be.

21(2)  [Shares and property]  

A reference to a body corporate carrying on business in Australia, or in a State or Territory, includes a reference to the body:

(a)  establishing or using a share transfer office or share registration office in Australia, or in the State or Territory, as the case may be; or

(b)  administering, managing, or otherwise dealing with, property situated in Australia, or in the State or Territory, as the case may be, as an agent, legal personal representative or trustee, whether by employees or agents or otherwise.

21(3)  [Exceptions]  

Despite subsection (2), a body corporate does not carry on business in Australia, or in a State or Territory, merely because, in Australia, or in the State or Territory, as the case may be, the body:

(a)  is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute;

(b)  holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs;

(c)  maintains a bank account;

(d)  effects a sale through an independent contractor;

(e)  solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be;

(f)  creates evidence of a debt, or creates a charge on property;

(g)  secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts;

(h)  conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or

(j)  invests any of its funds or holds any property.

SECTION 22   CARRYING ON BUSINESS INTERSTATE  (Repealed by No 110 of 1990, Sch 1 (effective 18 December 1990).)

Division 4 - Dealing in futures contracts

SECTION 23   ACQUIRING A FUTURES CONTRACT  

23(1)  (Acquisition of futures contract)  

A person acquires a futures contract (other than a futures option or an eligible exchange-traded option) if, and only if, the person enters into, or takes an assignment of, the futures contract, whether or not on another's behalf.

23(2)  [Futures option or eligible exchange-traded option]  

A person acquires a futures option or an eligible exchange-traded option if, and only if, the person takes the option, or takes an assignment of the option, whether or not on another's behalf.

23(3)  [Sections 26 and 27]  

This section has effect subject to sections 26 and 27.

SECTION 24   DISPOSING OF A FUTURES CONTRACT  

24(1)  [Disposal of futures contract]  

A person disposes of a futures contract (other than a futures option or an eligible exchange-traded option) if, and only if, the person takes, or causes to be taken, such action as closes out the futures contract, whether or not the action is taken on another's behalf.

24(2)  [Futures option or eligible exchange-traded option]  

A person disposes of a futures option or an eligible exchange-traded option if, and only if, the person:

(a)  grants, assigns or exercises the option;

(b)  takes, or causes to be taken, such action as releases the option; or

(c)  allows the option to lapse;

whether or not on another's behalf.

24(3)  [Sections 26 and 27]  

This section has effect subject to sections 26 and 27.

SECTION 25   DEALING IN FUTURES CONTRACTS: GENERAL  

25(1)  [Acquisition or disposal]  

Subject to sections 26 and 27, a person deals in a futures contract if, and only if, the person:

(a)  acquires, or disposes of, the futures contract;

(b)  offers to acquire, or to dispose of, the futures contract; or

(c)  induces, or attempts to induce, another person to acquire, or to dispose of, the futures contract.

25(2)  [On another person's behalf]  

Subject to sections 26 and 27, a person deals in a futures contract on another person's behalf if, and only if, the first-mentioned person acquires, or disposes of, the futures contract on the other person's behalf, or offers so to acquire, or so to dispose of, the futures contract.

25(3)  [Non-residents]  

In determining whether or not a person who is not a resident of Australia or of an external Territory deals in a futures contract on another person's behalf, an act that the holder of a futures brokers licence or an exempt broker does on the first-mentioned person's behalf shall be disregarded.

25(4)  [Effect of subsection (5)]  

Subsection (5) has effect for the purposes of determining:

(a)  whether or not a person deals in a futures contract on another person's behalf; and

(b)  (Omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

(c)  what constitutes such a business carried on by a person.

25(5)  [Employees of brokers]  

An act that the person does:

(a)  while employed by, or acting for or by arrangement with, a futures broker;

(b)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the broker; and

(c)  in connection with a business of dealing in futures contracts that the broker carries on;

shall be disregarded.

25(6)  [Non-applicability to other sections]  

Subsections (3), (4) and (5) do not have effect for the purposes of sections 26, 27, 28, 1126 and 1132.

SECTION 26   DEALING IN FUTURES CONTRACTS THROUGH INTERMEDIARIES: FIRST STEP  

26    Where a person acquires, disposes of, or otherwise deals in, a futures contract on another person's behalf, the other person shall also be deemed to acquire, dispose of, or deal in, as the case may be, the futures contract.

SECTION 27   DEALING IN FUTURES CONTRACTS THROUGH INTERMEDIARIES: SECOND AND LATER STEPS  

27(1)  [Effect of section]  

Where:

(a)  because of instructions given, or any other act done, by a person (in this section called the ``intermediary''), the intermediary is, by virtue of:

(i) an application of section 26; or

(ii) an application of section 26 and an application, or 2 or more applications, of this section;

to be deemed to acquire, dispose of, or deal in, a futures contract; and

(b)  the intermediary gave the instructions, or did that other act, on behalf of another person (in this section called the ``principal'');

this section has effect, except for the purposes of section 26.

27(2)  [Principal]  

The principal shall also be deemed to acquire, dispose of, or deal in, as the case may be, the futures contract.

27(3)  [Deemed acquisition, disposal, etc]  

The intermediary and:

(a)  if subparagraph (1)(a)(i) applies - the person who acquires, disposes of, or otherwise deals in, as the case may be; or

(b)  if subparagraph (1)(a)(ii) applies - the persons who, by virtue of the applications referred to in that subparagraph, are each deemed to acquire, dispose of, or deal in, as the case may be;

the futures contract on the intermediary's behalf shall each be deemed to acquire, dispose of, or deal in, as the case may be, the futures contract on the principal's behalf.

SECTION 28   DEALING IN FUTURES CONTRACTS, THROUGH INTERMEDIARIES, ON FUTURES MARKETS  

28(1)  [Effect of section]  

This section has effect where a person acquires, disposes of, or otherwise deals in, a futures contract on a futures market and by virtue of:

(a)  an application of section 26; or

(b)  an application of section 26 and an application or applications of section 27;

another person:

(c)  is also deemed to acquire, dispose of, or deal in, the futures contract; or

(d)  is deemed to acquire, dispose of, or deal in, the futures contract on a third person's behalf.

28(2)  [Deemed acquisition, disposal, etc]  

The other person shall be deemed to acquire, dispose of, or deal in, the futures contract on that futures market, or on the third person's behalf on that futures market, as the case may be.

SECTION 29   OWN ACCOUNT DEALINGS AND TRANSACTIONS: FUTURES CONTRACTS  

29(1)  [Extended meaning of own account dealings]  

A reference to a person dealing in a futures contract, or entering into a transaction in relation to a futures contract, on the person's own account includes a reference to a person so dealing, or entering into such a transaction, as the case may be, as principal or on behalf of:

(a)  in any case - an associate of the person;

(b)  in any case - a body corporate in which the person has a controlling interest; or

(c)  if the person carries on a futures broking business in partnership - a body corporate in which the person's interests and the interests of the other partners together constitute a controlling interest.

29(2)  [Other members of exchange]  

A futures broker who is a member of a futures exchange or of a recognised futures exchange does not deal in a futures contract, or enter into a transaction in relation to a futures contract, on the broker's own account merely because the dealing is with, or the transaction is entered into with, another futures broker who is a member of a futures exchange or of a recognised futures exchange.

29(3)  [Limited meaning of ``associate'']  

Despite Division 2, a person is not an associate of another person for the purposes of subsection (1) merely because the first-mentioned person is either or both of the following:

(a)  a partner of the other person otherwise than because of carrying on in partnership with the other person a business of dealing in futures contracts;

(b)  a director of a body corporate of which the other person is also a director, whether or not the body carries on a business of dealing in futures contracts.

Division 5 - (Repealed)

SECTION 30   TERMINOLOGY USED IN THIS DIVISION  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 31   BASIC RULES  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 32   CONTROL OF BODY CORPORATE HAVING POWER IN RELATION TO A SHARE  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 33   CONTROL OF PRESCRIBED PERCENTAGE OF VOTING POWER IN BODY CORPORATE HAVING POWER IN RELATION TO A SHARE  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 34   DEEMED RELEVANT INTEREST IN ADVANCE OF PERFORMANCE OF AGREEMENT WHOSE PERFORMANCE WILL GIVE RISE TO A RELEVANT INTEREST  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 35   CONTROL OF BODY CORPORATE HAVING A RELEVANT INTEREST BY VIRTUE OF SECTION 34  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 36   MATTERS NOT AFFECTING APPLICATION OF DIVISION  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 37   BODY CORPORATE MAY HAVE A RELEVANT INTEREST IN ITS OWN SHARES  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000).)

SECTION 38   EXCLUSIONS: MONEY-LENDERS  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 39   EXCLUSIONS: CERTAIN TRUSTEES  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 40   EXCLUSIONS: INSTRUCTIONS TO SECURITIES DEALER TO DISPOSE OF SHARE  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 41   EXCLUSIONS: HONORARY PROXIES  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 42   EXCLUSIONS: HOLDERS OF PRESCRIBED OFFICES  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 42A   SHARES COVERED BY BUY-BACK AGREEMENTS  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 43   PRESCRIBED EXCLUSIONS  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 44   RELEVANT INTERESTS IN SECURITIES  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 45   EFFECT OF DIVISION  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000).

Division 5A - Types of company

SECTION 45A   PROPRIETARY COMPANIES  

45A(1)  Proprietary company.  

A proprietary company is a company that is registered as, or converts to, a proprietary company under this Law.

Note 1:

A proprietary company can be registered under section 118, 601BD or 1362B. A company can convert to a proprietary company under Part 2B.7.

Note 2:

A proprietary company must:

•  be limited by shares or be an unlimited company with a share capital

•  have no more than 50 non-employee shareholders

•  not do anything that would require disclosure to investors under Chapter 6D (except in limited circumstances).

(see section 113).

45A(2)  Small proprietary company.  

A proprietary company is a small proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

(a)  the consolidated gross operating revenue for the financial year of the company and the entities it controls (if any) is less than $10 million

(b)  the value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is less than $5 million

(c)  the company and the entities it controls (if any) have fewer than 50 employees at the end of the financial year.

Note:

A small proprietary company generally has reduced financial reporting requirements (see subsection 292(2)).

45A(3)  Large proprietary company.  

A proprietary company is a large proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

(a)  the consolidated gross operating revenue for the financial year of the company and the entities it controls (if any) is $10 million or more

(b)  the value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is $5 million or more

(c)  the company and the entities it controls (if any) have 50 or more employees at the end of the financial year.

45A(4)  When a company controls an entity.  

For the purposes of this section, the question whether a proprietary company controls an entity is to be decided in accordance with the accounting standards made for the purposes of paragraph 295(2)(d) (even if the standards do not otherwise apply to the company).

45A(5)  Counting employees.  

In counting employees for the purposes of subsections (2) and (3), take part-time employees into account as an appropriate fraction of a full-time equivalent.

45A(6)  Accounting standards.  

Consolidated gross operating revenue and the value of consolidated gross assets are to be calculated for the purposes of this section in accordance with accounting standards in force at the relevant time (even if the standard does not otherwise apply to the financial year of some or all of the companies concerned).

Division 6 - Subsidiaries and related bodies corporate

SECTION 46   WHAT IS A SUBSIDIARY  

46    A body corporate (in this section called the ``first body'') is a subsidiary of another body corporate if, and only if:

(a)  the other body:

(i) controls the composition of the first body's board;

(ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first body; or

(iii) holds more than one-half of the issued share capital of the first body (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

(b)  the first body is a subsidiary of a subsidiary of the other body.

SECTION 47   CONTROL OF A BODY CORPORATE'S BOARD  

47    Without limiting by implication the circumstances in which the composition of a body corporate's board is to be taken to be controlled by another body corporate, the composition of the board shall be taken to be so controlled if the other body, by exercising a power exercisable (whether with or without the consent or concurrence of any other person) by it, can appoint or remove all, or the majority, of the directors of the first-mentioned body, and, for the purposes of this Division, the other body shall be deemed to have power to make such an appointment if:

(a)  a person cannot be appointed as a director of the first-mentioned body without the exercise by the other body of such a power in the person's favour; or

(b)  a person's appointment as a director of the first-mentioned body follows necessarily from the person being a director or other officer of the other body.

SECTION 48   MATTERS TO BE DISREGARDED  

48(1)  [Subsidiary]  

This section applies for the purposes of determining whether a body corporate (in this section called the ``first body'') is a subsidiary of another body corporate.

48(2)  [Fiduciary capacity]  

Any shares held, or power exercisable, by the other body in a fiduciary capacity shall be treated as not held or exercisable by it.

48(3)  [Nominee]  

Subject to subsections (4) and (5), any shares held, or power exercisable:

(a)  by a person as a nominee for the other body (except where the other body is concerned only in a fiduciary capacity); or

(b)  by, or by a nominee for, a subsidiary of the other body (not being a subsidiary that is concerned only in a fiduciary capacity);

shall be treated as held or exercisable by the other body.

48(4)  [Debentures]  

Any shares held, or power exercisable, by a person by virtue of the provisions of debentures of the first body, or of a trust deed for securing an issue of such debentures, shall be disregarded.

48(5)  [Money lending]  

Any shares held, or power exercisable, otherwise than as mentioned in subsection (4), by, or by a nominee for, the other body or a subsidiary of it shall be treated as not held or exercisable by the other body if:

(a)  the ordinary business of the other body or that subsidiary, as the case may be, includes lending money; and

(b)  the shares are held, or the power is exercisable, only by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with lending money, not being a transaction entered into with an associate of the other body, or of that subsidiary, as the case may be.

SECTION 49   REFERENCES IN THIS DIVISION TO A SUBSIDIARY  

49    A reference in paragraph 46(b) or 48(3)(b) or subsection 48(5) to being a subsidiary, or to a subsidiary, of a body corporate includes a reference to being a subsidiary, or to a body corporate that is a subsidiary, as the case may be, of the first-mentioned body by virtue of any other application or applications of this Division.

SECTION 50   RELATED BODIES CORPORATE  

50    Where a body corporate is:

(a)  a holding company of another body corporate;

(b)  a subsidiary of another body corporate; or

(c)  a subsidiary of a holding company of another body corporate;

the first-mentioned body and the other body are related to each other.

SECTION 50AA   CONTROL  

50AA(1)  [Definition of control]  

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.

50AA(2)  [Definition of capacity]  

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).

50AA(3)  [Joint capacity]  

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.

50AA(4)  [Legal obligation to control]  

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.

Division 7 - Interpretation of other expressions

SECTION 50A   ACCOUNTING PERIODS AND HALF-YEARS  (Repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

SECTION 51   ACQUISITION AND DISPOSAL OF SHARES  

51(1)  (``deal'')  

For the purposes of the definition of `` deal'' in section 9 and of Chapter 7, a person acquires shares in a body corporate if, and only if:

(a)  the person acquires a relevant interest in those shares as a result of a transaction entered into by or on behalf of the person in relation to those shares, in relation to any other securities of that body corporate or in relation to securities of any other body corporate; or

(b)  the person acquires any legal or equitable interest in securities of that body corporate or in securities of any other body corporate and, as a result of the acquisition, another person acquires a relevant interest in those shares.

51(2)  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000).)

SECTION 52   DOING ACTS  

52    A reference to doing an act or thing includes a reference to causing or authorising the act or thing to be done.

SECTION 52A   SIGNING  

52A    Without affecting the law on agency, if this Law requires that something be signed, it can be signed by an individual using a power of attorney from the person required to sign.

SECTION 53   AFFAIRS OF A BODY CORPORATE  

53    For the purposes of the definition of `` examinable affairs'' in section 9, section 53AA, 232, 233 or 234, paragraph 461(1)(e), section 487, subsection 1307(1) or section 1309, or of a prescribed provision of this Law, the affairs of a body corporate include:

(a)  the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with any other person or persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with any other person or persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the body:

(b)  in the case of a body corporate (not being an authorised trustee corporation) that is a trustee (but without limiting the generality of paragraph (a)) - matters concerned with the ascertainment of the identity of the persons who are beneficiaries under the trust, their rights under the trust and any payments that they have received, or are entitled to receive, under the terms of the trust;

(c)  the internal management and proceedings of the body;

(d)  any act or thing done (including any contract made and any transaction entered into) by or on behalf of the body, or to or in relation to the body or its business or property, at a time when:

(i) a receiver, or a receiver and manager, is in possession of, or has control over, property of the body;

(ii) the body is under administration;

(iia) a deed of company arrangement executed by the body has not yet terminated;

(iii) a compromise or arrangement made betweenthe body and any other person or persons is being administered; or

(iv) the body is being wound up;

and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, of an administrator of the body, of an administrator of such a deed of company arrangement, of a person administering such a compromise or arrangement or of a liquidator or provisional liquidator of the body;

(e)  the ownership of shares in, debentures of, and interests in a managed investment scheme made available by, the body;

(f)  the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the body or to dispose of, or to exercise control over the disposal of, such shares;

(g)  matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the body or are or have been able to control or materially to influence the policy of the body;

(h)  the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, debentures of, or interests in a managed investment scheme made available by, the body;

(j)  where the body has made available interests in a managed investment scheme - any matters concerning the financial or business undertaking, scheme, common enterprise or investment contract to which the interests relate; and

(k)  matters relating to or arising out of the audit of, or working papers or reports of an auditor concerning, any matters referred to in a preceding paragraph.

SECTION 53AAA   AUDITED OR REVIEWED IN ACCORDANCE WITH THIS LAW  (Repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

SECTION 53AA   BUSINESS AFFAIRS OF A BODY CORPORATE  

53AA    A body corporate's business affairs include (without limitation):

(a)  any of the body's affairs (including anything that is included in the body's affairs because of section 53); and

(b)  matters concerned with ascertaining the corporations with which the body is or has been connected.

SECTION 53AB   BUSINESS AFFAIRS OF A NATURAL PERSON  

53AB    A natural person's business affairs include (without limitation):

(a)  the person's examinable operations and examinable assets and liabilities; and

(b)  any act done (including any contract made and any transaction entered into) by or on behalf of the person, or to or in relation to the person or his or her business or property, at a time when:

(i) the person was, under the Bankruptcy Act 1966 or the law of an external Territory, a bankrupt in respect of a bankruptcy from which the person had not been discharged; or

(ii) the person had, under a law of an external Territory or of a foreign country, the status of an undischarged bankrupt; or

(iii) the person's property was subject to control under Division 2 of Part X of the Bankruptcy Act 1966 because of an authority given by the person under section 188 of that Act; or

(iv) a deed of assignment, deed of arrangement, or composition, under Part X of the Bankruptcy Act 1966 or under the corresponding provisions of the law of an external Territory or of a foreign country was in effect in relation to the person or the person's property; and

(c)  without limiting the generality of paragraph (b), any conduct of the trustee of such a bankrupt estate or of such a deed of assignment or arrangement, a person acting under such an authority or a person administering such a composition; and

(d)  matters concerned with ascertaining the corporations with which the person is or has been connected.

SECTION 53AC   BUSINESS AFFAIRS OF A PARTNERSHIP  

53AC    A partnership's business affairs include (without limitation):

(a)  the partnership's promotion, formation, membership, control, examinable operations and examinable assets and liabilities; and

(b)  the partnership's management and proceedings; and

(c)  any act done (including any contract made and any transaction entered into) by or on behalf of the partnership, or to or in relation to the partnership, at a time when the partnership is being wound up; and

(d)  matters concerned with ascertaining the corporations with which the partnership is or has been connected.

SECTION 53AD   BUSINESS AFFAIRS OF A TRUST  

53AD    A trust's business affairs include (without limitation):

(a)  the creation of the trust; and

(b)  matters arising under, or otherwise relating to, the terms of the trust; and

(c)  the appointment and removal of a trustee of the trust; and

(d)  the business, trading, transactions and dealings of the trustee of the trust; and

(e)  the profits, income and receipts of the trustee of the trust; and

(f)  the losses, outgoings and expenditure of the trustee of the trust; and

(g)  the trust property, including transactions and dealings in, and the income arising from, the trust property; and

(h)  the liabilities of the trustee of the trust; and

(j)  the management of the trust; and

(k)  any act done (including any contract made and any transaction entered into) by or on behalf of the trustee of the trust, or to or in relation to the trust, at a time when the trust is being wound up; and

(l)  matters concerned with ascertaining the corporations with which the trust is or has been connected.

SECTION 53A   CHAPTER 6 BODY AND CHAPTER 6 COMPANY  (Repealed by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000). )

SECTION 54   CHAPTER 8 AGREEMENTS OF THE SAME KIND  

54    A Chapter 8 agreement is of the same kind as another Chapter 8 agreement if, and only if, the provisions of the first-mentioned Chapter 8 agreement are the same as, or not materially different from, the provisions of the other Chapter 8 agreement, disregarding:

(a)  the fact that the parties to the respective Chapter 8 agreements are different; and

(b)  any difference in the amounts payable under corresponding provisions of the respective Chapter 8 agreements.

SECTION 55   CHAPTER 8 OBLIGATIONS AND RIGHTS  

55(1)  [Unenforceability not relevant]  

A Chapter 8 obligation, or a Chapter 8 right, is an obligation or right, as the case may be, whether or not enforceable at law or in equity.

55(2)  [Alternative obligations]  

A reference to a Chapter 8 obligation of a particular kind includes a reference to alternative Chapter 8 obligations one of which is a Chapter 8 obligation of that kind.

SECTION 56   CLASSES OF FUTURES ORGANISATION MEMBERSHIP  

56    A reference to a member, in relation to a body corporate that is, or proposes to become, a futures organisation, is, if the body may operate otherwise than as a futures organisation and any of the rules, regulations or by-laws made by the body or contained in its constituent documents provide for:

(a)  a separate class of membership for persons to whom the operation of the body otherwise than as a futures organisation relates (whether or not such persons may be members within another class of membership); or

(b)  2 or more such separate classes of membership;

a reference to a person in the person's capacity as a member of the body in a class of membership other than that separate class or those separate classes, as the case may be.

SECTION 57   CLASSES OF SHARES OR INTERESTS IN MANAGED INVESTMENT SCHEMES  

57(1)  [Shares]  

The shares in a body corporate, if not divided into 2 or more classes, constitute a class.

57(2)  [Interests in a managed investment scheme]  

If the interests in a managed investment scheme to which an undertaking relates are not divided into 2 or more classes, they constitute a class.

SECTION 57A   MEANING OF ``CORPORATION''  

57A(1)  [``corporation'']  

Subject to this section, in this Law, ``corporation'' includes:

(a)  any body corporate, whether incorporated in this jurisdiction or elsewhere; and

(b)  a company; and

(c)  a recognised company; and

(d)  an unincorporated body that:

(i) is formed outside this jurisdiction; and

(ii) under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and

(iii) does not have its head office or principal place of business in this jurisdiction.

57A(2)  [Exceptions]  

Neither of the following is a corporation :

(a)  an exempt public authority;

(b)  a corporation sole.

57A(3)  (Repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

57A(4)  [Exempt bodies are not corporations]  

An exempt body in relation to this jurisdiction (as defined in section 66A) is not a corporation .

SECTION 58   CORRESPONDING LAWS AND CORRESPONDING PREVIOUS LAWS  

58(1)  [Reference in relation to this Law]  

A reference, in relation to this Law, to a corresponding law is a reference to the Corporations Law of another jurisdiction.

58(2)  [Reference in relation to a provision of this Law]  

A reference, in relation to a provision of this Law, to a corresponding law, or a reference to a law corresponding to a provision of this Law, is a reference to the provision of the Corporations Law of another jurisdiction that corresponds to that provision of this Law.

58(3)  [Reference to a corresponding previous law]  

A reference to a corresponding previous law is a reference:

(a)  to a previous law of this jurisdiction that corresponds, in whole or in part, to this Law, to the extent that it so corresponds; and

(b)  except where the contrary intention appears - to a previous law of another jurisdiction that corresponds to a law referred to in paragraph (a).

58(4)  [Reference in relation to a provision of this Law, to corresponding previous law]  

A reference, in relation to a provision of this Law, to a corresponding previous law, or a reference to a previous law corresponding to a provision of this Law, is a reference:

(a)  to a provision of a previous law of this jurisdiction that:

(i) corresponds to that provision of this Law; or

(ii) is declared by the regulations to be a provision that so corresponds; and

(b)  except where the contrary intention appears - to a provision of a previous law of another jurisdiction that corresponds to the provision referred to in paragraph (a).

58(5)  [Reference to lodgment etc, of a prospectus]  

A reference to the lodgment or registration of a prospectus under a corresponding previous law is a reference to the lodgment of a copy of a prospectus with, or the registration of a copy of a prospectus by, as the case may be, the NCSC under:

(a)  a corresponding previous law of this jurisdiction; or

(b)  a law of another jurisdiction that corresponds to that corresponding previous law.

SECTION 58A   RECOGNITION OF ACTS ETC. DONE UNDER CORRESPONDING LAWS  

58A(1)  [The Commission]  

A reference to an act done by or in relation to the Commission is a reference to such an act done under or for the purposes of the Corporations Law of this or any other jurisdiction.

58A(2)  [A court]  

A reference to an act done by or in relation to a court is a reference to such an act done under or for the purposes of the Corporations Law of this or any other jurisdiction.

SECTION 58AA   MEANING OF ``court'' AND ``Court''  

58AA(1)  [Definitions]  

Subject to subsection (3), in this Law:

``court'' means any court when exercising the jurisdiction of this jurisdiction;

``Court'' means any of the following courts when exercising the jurisdiction of this jurisdiction:

(a)  the Federal Court;

(b)  the Supreme Court of this or any other jurisdiction;

(c)  the Family Court of Australia;

(d)  a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

58AA(2)  [Jurisdiction of courts]  

Except where there is a clear expression of a contrary intention (for example, by use of the expression ``the Court''), proceedings in relation to a matter under this Law may, subject to the Acts mentioned in subsection (3), be brought in any court.

58AA(3)  [Statutory provisions governing jurisdiction]  

The jurisdiction that courts have in relation to matters under this Law is dealt with in Part 9 of each of the following:

(a)  the Corporations Act 1989;

(b)  the Corporations (New South Wales) Act 1990 of New South Wales;

(c)  the Corporations (Victoria) Act 1990 of Victoria;

(d)  the Corporations (Queensland) Act 1990 of Queensland;

(e)  the Corporations (Western Australia) Act 1990 of Western Australia;

(f)  the Corporations (South Australia) Act, 1990 of South Australia;

(g)  the Corporations (Tasmania) Act 1990 of Tasmania;

(h)  the Corporations (Northern Territory) Act 1990 of the Northern Territory.

58AA(4)  [Limits on jurisdictional competence]  

The matters dealt with in those Parts of those Acts include the applicability of limits on the jurisdictional competence of courts.

SECTION 58B   DISCHARGE OF OBLIGATIONS UNDER THIS LAW  

58B(1)  [Discharge of obligation]  

Except as expressly provided in this Law, any act done, whether within Australia or elsewhere, which, if it had been done under or for the purposes of this Law, would have discharged an obligation under this Law, discharges that obligation.

58B(2)  [Act may be done anywhere in Australia]  

Subject to subsection (3), an act required to be done under this Law may, for the purposes of this Law, be done anywhere in Australia, whether within or outside this jurisdiction.

58B(3)  [Express requirements or permission]  

Nothing in subsection (2) affects the operation of any provision of this Law that:

(a)  expressly requires a particular act to be done within this jurisdiction; or

(b)  expressly or by implication permits a particular act to be done outside Australia.

SECTION 58C   DEADLINE AFTER AN ACCOUNTING PERIOD  (Repealed by No of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

SECTION 59   DEBENTURES AS CONSIDERATION FOR ACQUISITION OF SHARES  

59    A reference to a body corporate that offers debentures as consideration for the acquisition of shares in a body corporate includes a reference to a body corporate that offers a cash sum as consideration for the acquisition of shares where it is to be a term of the contract for the acquisition of those shares that the offeree makes, or that the sum is applied in whole or in part in making, a payment by way of deposit with, or loan to, the body corporate that offers the sum.

SECTION 60   DIRECTORS  (Repealed by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000). )

SECTION 61   DISCRETIONARY ACCOUNTS  

61    A reference to operation by a futures broker on a discretionary account is a reference to dealings by the broker in futures contracts on instructions of another person that authorise the broker to deal in futures contracts without the prior approval of that other person, whether:

(a)  the instructions are given by, and the money used for operating on the account is provided by, one person only; or

(b)  the instructions are given by, and the money used for operating on the account is contributed asa common fund by, each of a number of persons;

not being dealings on instructions that authorise dealings in futures contracts without the prior approval of that other person only as to the time when or the price at which the dealings are to be effected, or both.

SECTION 62   DORMANT ENTITIES  (Repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

SECTION 63   ELIGIBLE CIRCUMSTANCES  (Repealed by No 110 of 1990, Sch 1 (effective 18 December 1990).)

SECTION 64   ENTERING INTO A TRANSACTION IN RELATION TO SHARES OR SECURITIES  

64    A reference in section 51 or Chapter 6 to entering into a transaction in relation to shares or securities includes a reference to:

(a)  entering into, or becoming a party to, a relevant agreement in relation to the shares or securities; and

(b)  exercising an option to have the shares or securities allotted.

SECTION 64A   ENTITIES  

64A    Except in Chapter 2E, a reference to an entity:

(a)  is a reference to a natural person, a body corporate (other than an exempt public authority), a partnership or a trust; and

(b)  includes, in the case of a trust, a reference to the trustee of the trust.

SECTION 64B   ENTITIES CONNECTED WITH A CORPORATION  

64B(1)  [Body corporate]  

A body corporate is connected with a corporation if, and only if, the corporation:

(a)  can control, or influence materially, the body's activities or internal affairs; or

(b)  is a member of the body; or

(c)  is in a position to cast, or to control the casting of, a vote at a general meeting of the body; or

(d)  has power to dispose of, or to exercise control over the disposal of, a share in the body; or

(e)  is financially interested in the body's success or failure or apparent success or failure; or

(f)  is owed a debt by the body; or

(g)  is engaged by the body under a contract for services; or

(h)  acts as agent for the body in any transaction or dealing.

64B(2)  [Natural person]  

A natural person is connected with a corporation if, and only if, the corporation:

(a)  is a trustee of a trust under which the person is capable of benefiting; or

(b)  is engaged by the person under a contract for services; or

(c)  acts as agent for the person in any transaction or dealing; or

(d)  is an attorney of the person under a power of attorney; or

(e)  has appointed the person as the corporation's attorney under a power of attorney; or

(f)  is given financial, business or legal advice by the person in the performance of the functions attaching to the person's professional capacity.

64B(3)  [Partnership]  

A partnership is connected with a corporation if, and only if, the corporation:

(a)  is a partner in the partnership; or

(b)  can control, or influence materially, the partnership's activities or internal affairs; or

(c)  is financially interested in the partnership's success or failure or apparent success or failure; or

(d)  is a creditor of the partnership; or

(e)  is engaged by the partnership under a contract for services; or

(f)  acts as agent for the partnership in any transaction or dealing.

64B(4)  [Trust]  

A trust is connected with a corporation if, and only if, the corporation:

(a)  is the settlor, or one of the settlors, of the trust; or

(b)  has power under the terms of the trust to appoint or remove a trustee of the trust or to vary, or cause to be varied, any of the terms of the trust; or

(c)  is a trustee of the trust; or

(d)  can control, or influence materially, the activities of the trust; or

(e)  is capable of benefiting under the trust; or

(f)  is a creditor of the trustee of the trust; or

(g)  is engaged by the trustee of the trust under a contract for services; or

(h)  acts as agent for the trustee of the trust in any transaction or dealing.

SECTION 65   ELIGIBLE MONEY MARKET DEALER  

65    ASIC may declare a body corporate to be an authorised dealer in the short term money market by notice published in the Gazette.

SECTION 66   EXCLUDED ISSUES, OFFERS AND INVITATIONS  (Repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

SECTION 66A   EXEMPT BODIES  

66A(1)  [New South Wales]  

Each of the following is an exempt body in relation to New South Wales:

(a)  a society, association or union registered under the Co-operation Act 1923 of New South Wales;

(b)  a co-operative within the meaning of the Co-operatives Act 1992 of New South Wales or a foreign co-operative within the meaning of that Act registered under Division 3 of Part 2 of that Act;

(c)  (Repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

(d)  a registrable body or recognised company in respect of which an exemption from compliance with subsection 61(1) of the Co-operation Act 1923 of New South Wales is in force;

(e)  an association, society, club, institution or body incorporated under the Associations Incorporation Act 1984 of New South Wales.

66A(2A)  [Victoria]  

Each of the following is an exempt body in relation to Victoria:

(a)  an incorporated association within the meaning of the Associations Incorporation Act 1981 of Victoria;

(b)  (Omitted by No 104 of 1994, Sch 3 (effective 1 January 1995).)

(c)  a society within the meaning of the Co-operation Act 1981 of Victoria and a foreign society registered under Part XI of that Act;

(d)  a co-operative housing society within the meaning of the Co-operative Housing Societies Act 1958 of Victoria;

(e)  (Repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

66A(2)  [Queensland]  

Each of the following is an exempt body in relation to Queensland:

(a)  a society within the meaning of the Co-operative and Other Societies Act 1967-1986 of Queensland;

(b)  (Repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

(c)  a society within the meaningof the Co-operative Housing Societies Act 1958-1974 of Queensland;

(d)  an association within the meaning of the Primary Producers' Co-operative Associations Act 1923 of Queensland;

(e)  an association, society, institution or body incorporated under the Associations Incorporation Act 1981-1989 of Queensland;

(f)  (Omitted by No 104 of 1994, Sch 3 (effective 1 January 1995).)

(g)  (Repealed by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).)

66A(3)  [South Australia]  

A body corporate is an exempt body in relation to South Australia if, and only if:

(a)  it is not a company for the purposes of section 9 of the Corporations Law of South Australia; and

(b)  it is incorporated by or under a law of South Australia other than that Law or a corresponding previous law.

66A(4)  [Western Australia]  

Each of the following is an exempt body in relation to Western Australia:

(a)  a society within the meaning of section 5 of the Building Societies Act 1976 of Western Australia;

(b)  The WA Teachers Financial Society Limited;

(c)  a co-operative company registered under:

(i) Part VI of the Companies (Co-operative) Act 1943 of Western Australia; or

(ii) a previous law of Western Australia that corresponds to that Part;

(d)  a society registered under the Co-operative and Provident Societies Act 1903 of Western Australia;

(e)  an association, society, institution or body incorporated under the Associations Incorporation Act 1987 of Western Australia.

66A(5)  [Tasmania]  

Each of the following is an exempt body in relation to Tasmania:

(a)  a trustee bank registered under the Trustee Banks Act 1984 of Tasmania;

(b)  a society, other than a financial institution, registered under the Co-operative Industrial Societies Act 1928, or the Co-operative Housing Societies Act 1963, of Tasmania;

(c)  an association, society, institution or body incorporated under the Associations Incorporation Act 1964 of Tasmania;

(d)  a body corporate created by section 75Q of the Conveyancing and Law of Property Act 1884 of Tasmania.

66A(6)  [Northern Territory]  

Each of the following is an exempt body in relation to the Northern Territory:

(a)  the Cullen Bay Marina Management Corporation;

(b)  (Omitted by No 104 of 1994, Sch 3 (effective 1 January 1995).)

(c)  a society registered under the Co-operative Societies Act of the Northern Territory;

(d)  an association, society, institution or body incorporated under the Associations Incorporation Act of the Northern Territory;

(e)  a corporation constituted under the Unit Titles Act of the Northern Territory.

66A(7)  [Capital Territory]  

Each of the following is an exempt body in relation to the Capital Territory:

(a)  a society registered under the Co-operative Societies Act 1939 of the Capital Territory;

(b)  an association, society, institution or body incorporated under the Associations Incorporation Act 1953 of the Capital Territory;

(c)  a corporation constituted under the Unit Titles Act 1970 of the Capital Territory.

SECTION 67   EXEMPT BROKERS AND EXEMPT FUTURES ADVISERS  

67(1)  [Body corporate]  

A body corporate is both an exempt broker and an exempt futures adviser if it is:

(a)  a prescribed body corporate; or

(b)  an exempt public authority in relation to which a declaration is in force under subsection (2).

67(2)  [Declaration by Minister]  

The Minister may by writing declare that paragraph (1)(b) applies in relation to specified bodies corporate.

67(3)  [Publication of declaration]  

The Commission shall cause a copy of an instrument executed under subsection (2) to be published in the Gazette.

67(4)  [Carrying on business in other capacity]  

Subject to this section, a person is an exempt broker or an exempt futures adviser if the person is a futures broker or futures adviser, as the case may be, but does not carry on a futures broking business or a futures advice business, as the case may be, except:

(a)  as an official receiver or trustee within the meaning of the Bankruptcy Act 1966; or

(b)  as a receiver, receiver and manager, or liquidator, appointed by a court; or

(c)  as a person appointed by a court to carry on the business concerned; or

(d)  as a receiver, receiver and manager, or liquidator, appointed otherwise than by a court; or

(e)  as an administrator of a body corporate; or

(ea)  as an administrator of a deed of company arrangement executed by a body corporate;

(f)  as a trustee or other person administering a compromise or arrangement between a body corporate and any other person or persons; or

(g)  as a personal representative of a dead futures broker or futures adviser, as the case may be; or

(h)  in such other capacity, or in such other circumstances, as are prescribed.

67(5)  [Approval necessary in certain circumstances]  

A person who carries on a futures broking business or futures advice business in a capacity referred to in any of paragraphs (4)(d) to (g), inclusive, shall be deemed for the purposes of subsection (4) to carry on the business otherwise than in that capacity unless there is in force under subsection (6) an approval of the person carrying on the business in that capacity.

67(6)  [Commission may grant approval]  

The Commission may, on application by a person and after having regard to:

(a)  the prescribed matters (if any); and

(b)  such matters as it thinks appropriate;

by writing approve of the person carrying on a specified futures broking business or futures advice business in a specified capacity, being a capacity referred to in any of paragraphs (4)(d) to (g), inclusive.

67(7)  [Exclusive effect of section]  

A person is not an exempt broker or an exempt futures adviser except as provided by this section.

SECTION 68   EXEMPT DEALERS AND EXEMPT INVESTMENT ADVISERS  

68(1)  [Double exemptions]  

A person is both an exempt dealer and an exempt investment adviser if the person is:

(a)  an eligible money market dealer; or

(b)  an exempt public authority.

68(2)  [Carrying on business in other capacity]  

Subject to this section, a person is an exempt dealer or an exempt investment adviser if the person is a dealer or investment adviser, as the case may be, but does not carry on a securities business or an investment advice business, as the case may be, except:

(a)  as an official receiver or trustee within the meaning of the Bankruptcy Act 1966;

(b)  as a receiver, receiver and manager, or liquidator, appointed by a court;

(c)  as a person appointed by a court to carry on the business concerned;

(d)  by virtue of the person's powers, as Public Trustee, under a prescribed law of a State or Territory;

(e)  as a receiver, receiver and manager, or liquidator, appointed otherwise than by a court;

(f)  as an administrator of a body corporate; or

(fa)  as an administrator of a deed of company arrangement executed by a body corporate; or

(g)  as a trustee or other person administering a compromise or arrangement between a body corporate and any other person or persons;

(h)  as a personal representative of a dead dealer or investment adviser, as the case may be; or

(j)  in such other capacity, or in such other circumstances, as are prescribed.

68(3)  [Body corporate dealing in own debentures]  

A body corporate that carries on, or holds itself out as carrying on, a business of dealing in debentures of that body is an exempt dealer if it neither carries on, nor holds itself out as carrying on, a business of dealing in any other securities.

68(4)  [Approval necessary in certain circumstances]  

A person who carries on a securities business or investment advice business in a capacity referred to in any of paragraphs (2)(e) to (h), inclusive, shall be deemed for the purposes of subsection (2) to carry on the business otherwise than in that capacity unless there is in force under subsection (5) an approval of the person carrying on the business in that capacity.

68(5)  [Commission may grant approval]  

The Commission may, on application by a person and after having regard to:

(a)  the prescribed matters (if any); and

(b)  such matters as it thinks appropriate;

by writing approve of the person carrying on a specified securities business or investment advice business in a specified capacity, being a capacity referred to in any of paragraphs (2)(e) to (h), inclusive.

68(6)  [Time limit on representation for dead person]  

A person who carries on a securities business or investment advice business as a personal representative of a dead dealer or investment adviser, as the case may be, shall be deemed for the purposes of subsection (2) to stop carrying on that business as such a personal representative:

(a)  at the end of 6 months after the death of the dealer or investment adviser;

(b)  on being discharged or removed as a personal representative of the dealer or investment adviser; or

(c)  on the final distribution of the estate of the dealer or investment adviser;

whichever happens first.

68(7)  [Exclusive effect of section]  

A person is not an exempt dealer or an exempt investment adviser except as provided by this section.

SECTION 68A   EXEMPT INTERESTS IN MANAGED INVESTMENT SCHEMES IN RELATION TO A JURISDICTION  

68A(1)  [Western Australia]  

Each of the following is an exempt interest in a managed investment scheme in relation to Western Australia:

(a)  an interest in a registered scheme that a registered co-operative company has issued, or proposes to issue, to a member of the company

(b)  an interest in a registered scheme in so far as a registered co-operative company

(i) offers the interest to a member of the company for subscription or purchase; or

(ii) invites such a member to subscribe for or buy the interest

(c)  an interest in a registered scheme in so far as:

(i) a registered co-operative company:

(A) offers the interest to a person other than a member of the company; or

(B) invites a person other than a member to subscribe for or buy the interest; and

(ii) the terms or circumstances of the offer or invitation are such that, if the offer, or an offer that the person makes because of the invitation, is accepted, the acceptance will result in the person becoming a member of the company.

68A(2)  [Definition of registered co-operative company]  

In subsection (1):

registered co-operative company means a body of the kind referred to in paragraph 66A(4)(c).

SECTION 69   EXEMPT PROPRIETARY COMPANIES  (Repealed by No 115 of 1995, Sch 4 (effective 9 December 1995).)

SECTION 69A   EXEMPT SECURITIES  (Repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

SECTION 70   EXTENSION OF PERIOD FOR DOING AN ACT  

70    Where this Law confers power to extend the period for doing an act, an application for the exercise of the power may be made, and the power may be exercised, even if the period, or the period as last extended, as the case requires, has ended.

SECTION 70A   FINANCIAL YEARS OF BODIES, OTHER ENTITIES AND PRESCRIBED INTEREST UNDERTAKINGS  (Repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

SECTION 71   FUTURES ADVICE BUSINESS  

71(1)  [Meaning of ``futures advice business'']  

A reference to a futures advice business, in relation to a person, is a reference to:

(a)  a business of advising other persons about futures contracts; or

(b)  a business in the course of which the person publishes futures reports.

71(2)  (Omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

71(3)  [Purposes of subsec (4) to (8)]  

The remaining provisions of this subsection apply for the purposes of determining:

(a)  whether or not a person carries on a futures advice business; and

(b)  what constitutes a futures advice business carried on by a person; and

(c)  whether or not a person holds himself, herself or itself out to be a futures adviser.

71(4)  [Solicitors and accountants]  

If the person is a solicitor or accountant in public practice as such, an act that the person does shall be disregarded if it is merely incidental to the practice of his or her profession.

71(5)  [Advice in media]  

The fact that the person advises other persons about futures contracts, or publishes futures reports, in some or all of the following circumstances shall be disregarded:

(a)  in a newspaper or periodical:

(i) of which the person is the proprietor or publisher; and

(ii) that is generally available to the public otherwise than only on subscription;

(b)  in the course of, or by means of, transmissions that:

(i) the person makes by means of an information service; or

(ii) are made by means of an information service that the person owns, operates or makes available;

and are generally available to the public;

(c)  in sound recordings, video recordings, or data recordings, that the person makes generally available to the public in either or both of the following ways:

(i) by supplying copies of them to the public;

(ii) by causing the sound recordings to be heard by, the video recordings to be seen and heard by, or the contents of the data recordings to be displayed or reproduced for, the public, as the case may be.

71(6)  [Publication for purpose of advice]  

Subsection (5) does not apply in relation to a newspaper or periodical, or transmissions, sound recordings, video recordings or data recordings, whose sole or principal purpose is to advise other persons about futures contracts or to publish futures reports.

71(7)  [Person holding himself out as adviser]  

The fact that the person holds himself, herself or itself out as advising other persons, or publishing futures reports, as mentioned in subsection (5) shall be disregarded.

71(8)  [Employees]  

An act that the person does:

(a)  while employed by, or acting for or by arrangement with, another person;

(b)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the other person; and

(c)  in connection with a futures advice business carried on by the other person;

shall be disregarded.

SECTION 72   FUTURES CONTRACT  

72(1)  [Meaning of ``futures contract'']  

A futures contract is:

(a)  a Chapter 8 agreement that is, or has at any time been, an eligible commodity agreement or adjustment agreement;

(b)  a futures option; or

(c)  an eligible exchange-traded option;

other than:

(d)  a Chapter 8 agreement:

(i) that is:

(A) a currency swap;

(B) an interest rate swap;

(C) a forward exchange rate contract; or

(D) a forward interest rate contract; and

(ii) to which an Australian bank, or a merchant bank as defined by subsection (4), is a party; or

(e)  a Chapter 8 agreement that, when entered into, is in a class of agreements prescribed for the purposes of this paragraph.

Note:

Regulations under subsection 72A(2) may provide that specified provisions of this Law and the regulations apply in relation to Chapter 8 agreements to which section 72A applies as if the agreements were futures contracts.

72(2)  [Chapter 8 agreement becoming a futures contract]  

Where a Chapter 8 agreement that was not a futures contract when it was entered into becomes a futures contract at a later time:

(a)  the parties to the Chapter 8 agreement shall be deemed to enter into a futures contract at the later time; and

(b)  the Chapter 8 agreement shall be deemed to constitute the futures contract referred to in paragraph (a).

72(3)  [Determining a class of futures contracts]  

Nothing in this Law limits the manner in which a class of futures contracts may be determined and such a class may be determined according to any criteria relevant to futures contracts.

72(4)  [``merchant bank'']  

For the purposes of subparagraph (1)(d)(ii), a body corporate is a merchant bank at a particular time if, and only if, it is at that time a registered corporation in:

(a)  the category for authorised money market dealers or, if there is at that time no such category, a prescribed category; or

(b)  the category for money market corporations or, if there is at that time no such category, a prescribed category.

72(5)  [Financial Corporations Act]  

An expression has the same meaning in subsection (4) as in the Financial Corporations Act 1974.

SECTION 72A   LAW APPLIES TO CERTAIN CHAPTER 8 AGREEMENTS AS IF THEY WERE FUTURES CONTRACTS  

72A(1)  [Application to prescribed Chapter 8 agreements]  

This section applies to Chapter 8 agreements:

(a)  that are entered into on a futures market of a futures exchange; and

(b)  that are of a kind prescribed for the purposes of this paragraph.

72A(2)  [Application of Law by regulation]  

The regulations may, in relation to Chapter 8 agreements to which this section applies:

(a)  provide that specified provisions of this Law and the regulations apply in relation to the agreements as if the agreements were futures contracts; and

(b)  provide that specified provisions of this Law and the regulations do not apply in relation to the agreements; and

(c)  make modifications of this Law and the regulations as applying in relation to the agreements.

72A(3)  [Which provisions may be modified]  

Modifications made by regulations referred to in paragraph (2)(c) may be of provisions specified in regulations referred to in paragraph (2)(a) or of other provisions of this Law or the regulations.

SECTION 73   FUTURES REPRESENTATIVES  

73(1)  [Meaning of ``futures representative'']  

Subject to subsection (2), a person is a futures representative of another person if, and only if, the first-mentioned person:

(a)  is employed by; or

(b)  acts for or by arrangement with;

the other person in connection with a futures broking business or futures advice business carried on by the other person.

73(2)  [Holding of authority]  

Except for the purposes of paragraph 87(1)(b):

(a)  a person who holds a proper authority from a futures licensee is a futures representative of the licensee; and

(b)  a person who holds an invalid futures authority from another person is a futures representative of the other person.

73(3)  [Acts or conduct as representative]  

Subject to subsection (4), a person does an act, or engages in conduct, as a futures representative of another person if, and only if, the first-mentioned person does the act, or engages in the conduct:

(a)  in connection with a futures broking business or futures advice business carried on by the other person;

(b)  while the first-mentioned person is a futures representative of the other person;

(c)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the other person; and

(d)  otherwise than in the course of work of a kind ordinarily done by accountants, clerks or cashiers.

73(4)  [Holding out to be representative]  

Except for the purposes of Division 4 of Part 8.3, a person who holds himself, herself or itself out to be a futures representative of another person does an act as a futures representative of the other person.

SECTION 73A   WHEN A COURT IS TAKEN TO FIND A PERSON GUILTY OF AN OFFENCE  

73A    An Australian court finds a person guilty of an offence if, and only if:

(a)  the court convicts the person of the offence; or

(b)  the person is charged before the court with the offence and is found in the court to have committed the offence, but the court does not proceed to convict the person of the offence.

SECTION 74   GROUP HOLDING COMPANIES  (Repealed by No 110 of 1991, Sch 3 (effective 1 August 1991).)

SECTION 75   INCLUSION IN OFFICIAL LIST  

75    A reference to a body corporate or other person included in an official list of a body corporate is a reference to:

(a)  a body corporate or other person whose name is included in that official list; or

(b)  a body corporate or other person whose name has been changed but whose previous name was included in that official list immediately before the change and is still so included.

SECTION 76   INCORPORATED IN A JURISDICTION OR IN AUSTRALIA  (Repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

SECTION 77   INVESTMENT ADVICE BUSINESS  

77(1)  [Meaning of ``investment advice business'']  

A reference to an investment advice business, in relation to a person, is a reference to:

(a)  a business of advising other persons about securities; or

(b)  a business in the course of which the person publishes securities reports.

77(2)  (Omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

77(3)  [Purpose of subsections (4)-(9)]  

The remaining provisions of this section apply for the purposes of determining:

(a)  whether or not a person carries on an investment advice business; and

(b)  what constitutes an investment advice business carried on by a person; and

(c)  whether or not a person holds himself, herself, or itself out to be an investment adviser.

77(4)  [Grant of probate, etc]  

If the person is a body corporate authorised by a law of a State or Territory to take in its own name a grant of probate of the will, or a grant of letters of administration of the estate, of a dead person, an act done by the first-mentioned person shall be disregarded.

77(5)  [Solicitors and accountants]  

If the person is a solicitor or accountant in public practice as such, an act that the person does shall be disregarded if it is merely incidental to the practice of his or her profession.

77(6)  [Advice in media]  

The fact that the person advises other persons about securities, or publishes securities reports, in some or all of the following circumstances shall be disregarded:

(a)  in a newspaper or periodical:

(i) of which the person is the proprietor or publisher; and

(ii) that is generally available to the public otherwise than only on subscription;

(b)  in the course of, or by means of, transmissions that:

(i) the person makes by means of an information service; or

(ii) are made by means of an information service that the person owns, operates or makes available;

and are generally available to the public;

(c)  in sound recordings, video recordings, or data recordings, that the person makes generally available to the public in either or both of the following ways:

(i) by supplying copies of them to the public; or

(ii) by causing the sound recordings to be heard by, the video recordings to be seen and heard by, or the contents of the data recordings to be displayed or reproduced for, the public, as the case may be.

77(7)  [Publication for purpose of advice]  

Subsection (6) does not apply in relation to a newspaper or periodical, or transmissions, sound recordings, video recordings or data recordings,as the case may be, whose sole or principal purpose is to advise other persons about securities or to publish securities reports.

77(8)  [Holding oneself out as adviser]  

The fact that the person holds himself, herself or itself out as advising other persons, or publishing securities reports, as mentioned in subsection (6) shall be disregarded.

77(9)  [Employees]  

An act that the person does:

(a)  while employed by, or acting for or by arrangement with, another person;

(b)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the other person; and

(c)  in connection with an investment advice business carried on by the other person;

shall be disregarded.

SECTION 78   INVITATIONS, OFFERS AND FORMS OF APPLICATION  (Repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

SECTION 79   INVOLVEMENT IN CONTRAVENTIONS  

79    A person is involved in a contravention if, and only if, the person:

(a)  has aided, abetted, counselled or procured the contravention;

(b)  has induced, whether by threats or promises or otherwise, the contravention;

(c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or

(d)  has conspired with others to effect the contravention.

SECTION 80   JERVIS BAY TERRITORY TAKEN TO BE PART OF THE AUSTRALIAN CAPITAL TERRITORY  

80    The Jervis Bay Territory is taken to be part of the Australian Capital Territory.

SECTION 80A   REFERENCES TO MINISTERS  

80A(1)  [Definitions]  

In this Law:

``Minister'' means one of the Queen's Ministers of State for the Commonwealth and, in relation to any particular Minister, includes any other Minister or member of the Executive Council for the time being acting for or on behalf of that Minister;

``the Minister for a jurisdiction'' means the person who is the Minister for that jurisdiction for the purposes of the Corporations Law of that jurisdiction.

80A(2)  [``the Minister'']  

Where a provision of this Law refers to a Minister, using the expression ``the Minister'' without specifying which Minister is referred to, the expression means:

(a)  if, for the time being, 2 or more Ministers administer the Corporations Act 1989 -any one of those Ministers; or

(b)  otherwise - the Minister for the time being administering that Act.

80A(3)  [Where Minister administers specified Act or provision]  

Where this Law refers to a Minister, specifying the Minister merely by reference to the fact that the Minister administers a specified Act, or a specified provision of an Act, it refers to:

(a)  if, for the time being, different Ministers administer the specified Act or provision in respect of different matters:

(i) if 2 or more Ministers administer the specified Act or provision in respect of the relevant matter - any one of those Ministers; or

(ii) if only one Minister administers the specified Act or provision in respect of the relevant matter - that Minister; or

(b)  if paragraph (a) does not apply and, for the time being, 2 or more Ministers administer the specified Act or provision - any one of those Ministers; or

(c)  otherwise - the Minister for the time being administering the specified Act or provision.

80A(4)  [2 or more Ministers]  

To avoid doubt, where:

(a)  a provision of an Act is administered by 2 or more Ministers; and

(b)  because of this section, a provision of this Law requires or permits anything to be done by or in relation to any one of those Ministers;

that provision of this Law does not require or permit it to be done in any particular case by or in relation to more than one of those Ministers.

SECTION 81   NEW COMPANIES  (Repealed by No 110 of 1990, Sch 1 (effective 18 December 1990).)

SECTION 82   OFFERS AND INVITATIONS TO THE PUBLIC  

82    A reference in this Law to, or to the making of, an offer to the public or to, or to the issuing of, an invitation to the public shall, unless the contrary intention appears, be construed as including a reference to, or to the making of, an offer to any section of the public or to, or to the issuing of, an invitation to any section of the public, as the case may be, whether selected as clients of the person making the offer or issuing the invitation or in any other manner and notwithstanding that the offer is capable of acceptance only by each person to whom it is made or that an offer or application may be made pursuant to the invitation only by a person to whom the invitation is issued, but a bona fide offer or invitation shall not be taken to be an offer or invitation to the public if it:

(a)  is an offer or invitation to enter into an underwriting agreement;

(b)  is made or issued to a person whose ordinary business is to buy or sell shares, debentures or interests in managed investment schemes, whether as principal or agent;

(c)  is made or issued to existing members or debenture holders of a corporation and relates to shares in, or debentures of, that corporation; or

(d)  is made or issued to existing members of a company in connection with a proposal referred to in section 507 and relates to shares in that company.

SECTION 82A   OFFICERS OF BODIES CORPORATE AND OTHER ENTITIES  

82A(1)  [``officer'']  

Subject to subsection (2), ``officer'' , in relation to:

(a)  a body corporate; or

(b)  an entity;

includes:

(c)  a director, secretary, executive officer or employee of the body or entity; and

(d)  a receiver and manager, appointed under a power contained in an instrument, of property of the body or entity; and

(e)  an administrator of the body or entity; and

(ea)  an administrator of a deed of company arrangement executed by the body or entity; and

(f)  a liquidator of the body or entity appointed in a voluntary winding up of the body or entity; and

(g)  a trustee or other person administering a compromise or arrangement made between the body or entity and any other person or persons.

82A(2)  [Exclusions]  

None of the following is an officer of a body corporate, or of an entity:

(a)  a receiver who is not also a manager;

(b)  a receiver and manager appointed by a court;

(c)  a liquidator appointed by a court.

SECTION 83   OFFICERS, AND OTHER PERSONS, IN DEFAULT  

83(1)  [Officer or person involved in contravention]  

A reference, in relation to a contravention, to an officer of a body corporate, or to a person, who is in default is a reference to an officer of the body (including a person who later ceases to be such an officer), or to a person, as the case may be, who is involved in the contravention.

83(2)  (Repealed by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000).)

SECTION 84   OWN ACCOUNT DEALINGS AND TRANSACTIONS: SECURITIES  

84    A person deals in, or enters into a transaction of sale or purchase of, securities on the person's own account if, and only if, the person deals in the securities, or enters into the transaction, as principal or on behalf of:

(a)  in any case - an associate of the person;

(b)  in any case - a body corporate in which the person has a controlling interest; or

(c)  if the person carries on a securities business in partnership - a body corporate in which the person's interest and the interests of the other partners together constitute a controlling interest.

SECTION 85   PARTICIPATION INTERESTS  (Repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

SECTION 85A   PERSON ETC.  

85A    In this Law, expressions used to denote persons generally (such as ``person'', ``party'', ``someone'', ``anyone'', ``no-one'', ``one'', ``another'' and ``whoever''), include a body politic or corporate as well as an individual.

SECTION 86  POSSESSION  

86    A thing that is in a person's custody or under a person's control is in the person's possession.

SECTION 87   PROPER AUTHORITY FROM FUTURES LICENSEE; INVALID FUTURES AUTHORITY  

87(1)  [Meaning of ``proper authority'']  

A reference, in relation to a person (in this subsection called the ``representative''), to a proper authority from a futures licensee (in this subsection called the ``principal'') is a reference to a copy of the licence on which have been endorsed:

(a)  a statement:

(i) certifying the copy to be a true copy of the licence;

(ii) stating that the representative is employed by, or acts for or by arrangement with, the principal; and

(iii) signed by the principal; and

(b)  in relation to each futures licensee (if any), other than the principal, of whom the representative is a futures representative, a statement that:

(i) sets out the name of the licensee;

(ii) states that the representative is employed by, or acts for or by arrangement with, the licensee;

(iii) states that the licensee consents to the representative being employed by, or acting for or by arrangement with, the principal; and

(iv) is signed by the licensee.

87(1A)  [``representative'' and ``principal'']  

A reference, in relation to a person (in this subsection called the ``representative'' ), to a proper authority from a futures licensee (in this subsection called the ``principal'' ) includes a reference to a document that, immediately before the commencement of Division 3 of Part 8.3, was a proper authority from that principal in relation to that representative under a previous law that corresponds to subsection (1).

87(2)  [``Invalid futures authority'']  

A reference, in relation to a person (in this subsection called the ``representative'' ), to an invalid futures authority from a person (in this subsection called the ``principal'' ) is a reference to a document:

(a)  on which isendorsed a statement:

(i) stating that the representative is employed by, or acts for or by arrangement with, the principal; and

(ii) signed by the principal; and

(b)  that purports to be a copy of a futures licence and to be a proper authority of the representative from the principal, but is not in fact such a proper authority;

whether or not:

(c)  the principal is, or has ever been, a futures licensee; or

(d)  the document is in fact a copy of a futures licence that exists or has ever existed.

87(3)  [Signing of statement]  

For the purposes of this section, a statement is signed by a person if, and only if, it is signed:

(a)  if the person is a natural person - by the person; or

(b)  if the person is a body corporate:

(i) by a director or secretary; or

(ii) by an executive officer who is authorised to sign the statement.

SECTION 88   PROPER AUTHORITY FROM SECURITIES LICENSEE; INVALID SECURITIES AUTHORITY  

88(1)  [Meaning of ``proper authority'']  

A reference, in relation to a person (in this subsection called the ``representative''), to a proper authority from a securities licensee (in this subsection called the ``principal'') is a reference to a copy of the licence on which are endorsed:

(a)  a statement:

(i) certifying the copy to be a true copy of the licence;

(ii) stating that the representative is employed by, or acts for or by arrangement with, the principal; and

(iii) signed by the principal; and

(b)  in relation to each licensee (if any), other than the principal, of whom the representative is a securities representative, a statement that:

(i) sets out the name of the licensee;

(ii) states that the representative is employed by, or acts for or by arrangement with, the licensee;

(iii) states that the licensee consents to the representative being employed by, or acting for or by arrangement with, the principal; and

(iv) is signed by the licensee.

88(1A)  [``representative'' and ``principal'']  

A reference, in relation to a person (in this subsection called the ``representative'' ), to a proper authority from a securities licensee (in this subsection called the ``principal'' ) includes a reference to a document that, immediately before the commencement of Division 3 of Part7.3, was a proper authority from that principal in relation to that representative under a previous law that corresponds to subsection (1).

88(2)  [``Invalid securities authority'']  

A reference, in relation to a person (in this subsection called the ``representative''), to an invalid securities authority from a person (in this subsection called the ``principal'') is a reference to a document:

(a)  on which is endorsed a statement:

(i) stating that the representative is employed by, or acts for or by arrangement with, the principal; and

(ii) signed by the principal; and

(b)  that purports to be a copy of a securities licence and to be a proper authority of the representative from the principal, but is not in fact such a proper authority;

whether or not:

(c)  the principal is, or has ever been, a securities licensee; or

(d)  the document is in fact a copy of a securities licence that exists or has ever existed.

88(3)  [Signing of statement]  

For the purposes of this section, a statement is signed by a person if, and only if, it is signed:

(a)  if the person is a natural person - by the person; or

(b)  if the person is a body corporate:

(i) by a director or secretary; or

(ii) by an executive officer who is authorised to sign the statement.

SECTION 88A   PUBLIC DOCUMENT OF A BODY CORPORATE  

88A(1)  [``public document'']  

Subject to this section, ``public document'' , in relation to a body, means:

(a)  an instrument of, or purporting to be signed, issued or published by or on behalf of, the body that:

(i) when signed, issued or published, is intended to be lodged or is required by or under this Law or the ASIC Law to be lodged; or

(ii) is signed, issued or published under or for the purposes of this Law, the ASIC Law or any other Australian law; or

(b)  an instrument of, or purporting to be signed or issued by or on behalf of, the body that is signed or issued in the course of, or for the purposes of, a particular transaction or dealing; or

(c)  without limiting paragraph (a) or (b), a business letter, statement of account, invoice, receipt, order for goods, order for services or official notice of, or purporting to be signed or issued by or on behalf of, the body.

88A(2)  [Qualification]  

A thing is not a public document of a body if it:

(a)  is applied, or is intended or required to be applied:

(i) to goods; or

(ii) to a package, label, reel or thing in or with which goods are, or are to be, supplied; and

(b)  is so applied, or is intended or required to be so applied, for a purpose connected with the supply of the goods.

88A(3)  [``apply to'', ``label'' and ``package'']  

In subsection (2):

``apply to'' includes print on, weave in, impress on, work into, or annex, affix or attach to;

``label'' includes a band or ticket;

``package'' includes:

(a)  a covering, stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper; or

(b)  any other container or thing in which goods are, or are to be, packed.

SECTION 89   QUALIFIED PRIVILEGE  

89(1)  [Defamation]  

Where this Law provides that a person has qualified privilege in respect of an act, matter or thing, the person:

(a)  has qualified privilege in proceedings for defamation; or

(b)  is not, in the absence of malice on the person's part, liable to an action for defamation at the suit of a person;

as the case requires, in respect of that act, matter or thing.

89(2)  [Meaning of ``malice'']  

In subsection (1):

``malice'' includes ill will to the person concerned or any other improper motive.

89(3)  [Rights not limited]  

Neither this section nor a provision of this Law that provides as mentioned in subsection (1) limits or affects any right, privilege or immunity that a person has, apart from this section or such a provision, as defendant in proceedings, or an action, for defamation.

SECTION 90   RECEIVERS AND MANAGERS  

90    A receiver of property of a body corporate is also a manager if the receiver manages, or has under the terms of the receiver's appointment power to manage, affairs of the body.

SECTION 91   BEING OR BECOMING SUBJECT TO A SECTION 229 PROHIBITION, A SECTION 230 OR 599 ORDER, A SECTION 600 NOTICE OR A CIVIL PENALTY DISQUALIFICATION  

91(1)  [Prohibition under sec 229]  

For the purposes of this Law, a person shall be taken to be or become subject to a section 229 prohibition if, and only if, the person is or becomes, as the case may be, by virtue of section 229 or a corresponding previous law, prohibited as mentioned in that section or corresponding previous law.

91(2)  [Order under sec 230]  

For the purposes of this Law, a person shall be taken to be or become subject to a section 230 order if, and only if, an order relating to the person is in force, or is made, as the case may be, under section 230 or a corresponding previous law, and a reference in this Law to a section 230 order is a reference to an order so in force or made.

91(3)  [Order under sec 599]  

For the purposes of this Law, a person shall be taken to be or become subject to a section 599 order if, and only if, an order relating to the person is in force, or is made, as the case may be, under section 599 or a corresponding previous law, and a reference in this Law to a section 599 order is a reference to an order so in force or made.

91(4)  [Notice under sec 600]  

For the purposes of this Law, a person shall be taken to be or become subject to a section 600 notice if, and only if, a notice relating to the person is in force, or is served, as the case may be, under section 600 or a corresponding previous law, and a reference in this Law to a section 600 notice is a reference to a notice so in force or served.

91(4A)  (Repealed by No 156 of 1999, Sch 3, Pt 7 (effective 13 March 2000).)

91(5)  [Period of prohibition]  

For the purposes of this section, an order or notice that prohibits a person for a specified period from engaging in particular conduct shall, unless sooner revoked, be taken to cease to be in force at the end of that period.

SECTION 91A   EFFECT OF SUCH A PROHIBITION, ORDER, NOTICE OR DISQUALIFICATION  (Repealed by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000). )

SECTION 92   SECURITIES  

92(1)  [``securities'']  

Subject to this section, ``securities'' means:

(a)  debentures, stocks or bonds issued or proposed to be issued by a government; or

(b)  shares in, or debentures of, a body; or

(c)  interests in a managed investment scheme; or

(ca)  in Parts 7.3 to 7.6 (inclusive) - interests that would be interests in a managed investment scheme but for paragraph (h) of the definition of managed investment scheme in section 9; or

(d)  units of such shares; or

(e)  an option contract within the meaning of Chapter 7;

but does not include a futures contract or an excluded security.

Note:

Regulations under subsection 92A(2) may provide that specified provisions of this Law and the regulations apply in relation to relevant agreements to which section 92A applies as if the agreements were securities.

92(2)  [``securities'' in relation to a body]  

The expression ``securities'', when used in relation to a body, means:

(a)  shares in the body;

(b)  debentures of the body;

(c)  interests in a managed investment scheme made available by the body; or

(ca)  in Parts 7.3 to 7.6 (inclusive) - interests made available by the body that would be interests in a managed investment scheme but for paragraph (h) of the definition of managed investment scheme in section 9;

(d)  units of such shares;

but does not include a futures contract or an excluded security.

92(2A)  [Friendly society benefit fund]  

In Parts 7.3 to 7.6 (inclusive):

securities includes an interest in a friendly society benefit fund.

92(3)  [Definition of securities]  

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 .

92(4)-(6)  (Repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000).)

SECTION 92A   LAW APPLIES TO CERTAIN RELEVANT AGREEMENTS AS IF THEY WERE SECURITIES  

92A(1)  [Application to prescribed relevant agreements]  

This section applies to relevant agreements (whether or not they are futures contracts):

(a)  that are entered into on a stock market of a securities exchange; and

(b)  that are of a kind prescribed for the purposes of this paragraph.

92A(2)  [Application of Law by regulation]  

The regulations may, in relation to relevant agreements to which this section applies:

(a)  provide that specified provisions of this Law and the regulations apply in relation to the agreements as if the agreements were securities; and

(b)  provide that specified provisions of this Law and the regulations do not apply in relation to the agreements; and

(c)  make modifications of this Law and the regulations as applying in relation to the agreements.

92A(3)  [Which provisions may be modified]  

Modifications made by regulations referred to in paragraph (2)(c) may be of provisions specified in regulations referred to in paragraph (2)(a) or of other provisions of this Law or the regulations.

SECTION 93   SECURITIES BUSINESS  

93(1)  [Meaning of ``securities business'']  

A securities business is a business of dealing in securities.

93(2)  (Omitted by No 110 of 1990, Sch 1 (effective 18 December 1990).)

93(3)  [Application]  

Subsections (5), (6) and (7) apply for the purposes of determining:

(a)  whether or not a person carries on, or holds himself, herself or itself out as carrying on, a securities business; and

(b)  what constitutes such a business carried on by a person.

93(4)  [Application]  

Subsection (7) also applies for the purposes of determining whether or not a person deals in securities.

93(5)  [Acts done by licensee or exempt dealer]  

An act done on behalf of the person by the holder of a dealers licence or an exempt dealer shall be disregarded.

93(6)  [Employees]  

An act that the person does:

(a)  while employed by, or acting for or by arrangement with, a dealer;

(b)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the dealer; and

(c)  in connection with a securities business carried on by the dealer;

shall be disregarded.

93(7)  [Futures contracts]  

An act or acts done by the person that constitutes or together constitute a dealing by the person in a futures contract shall be disregarded.

SECTION 94   SECURITIES REPRESENTATIVES  

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94(1)  [Meaning of ``securities representative'']  

Subject to subsection (2), a person is a securities representative of another person if, and only if, the first-mentioned person:

(a)  is employed by; or

(b)  acts for or by arrangement with;

the other person in connection with a securities business or investment advice business carried on by the other person.

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History

S 94(1) substituted by No 110 of 1990, Sch 1 (effective 18 December 1990).

94(2)  [Persons who hold authorities]  

Except for the purposes of paragraph 88(1)(b):

(a)  a person who holds a proper authority from a securities licensee is a securities representative of the licensee; and

(b)  a person who holds an invalid securities authority from another person is a securities representative of the other person.

94(3)  [Acting as securities representative]  

Subject to subsection (4), a person does an act, or engages in conduct, as a securities representative of another person if, and only if, the first-mentioned person does the act, or engages in the conduct:

(a)  in connection with a securities business or investment advice business carried on by the other person;

(b)  while the first-mentioned person is a securities representative of the other person;

(c)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the other person; and

(d)  otherwise than in the course of work of a kind ordinarily done by accountants, clerks or cashiers.

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History

S 94(3) amended by No 110 of 1990, Sch 1 (effective 18 December 1990).

94(4)  [Holding out to be securities representative]  

Except for the purposes of Division 4 of Part 7.3, a person who holds himself, herself or itself out to be a securities representative of another person does an act as a securities representative of the other person.

SECTION 95   SIGNING OF CERTAIN DOCUMENTS BY BODIES CORPORATE  (Repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

SECTION 95A   SOLVENCY AND INSOLVENCY  

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95A(1)  [When person is solvent]  

A person is solvent if, and only if, the person is able to pay all the person's debts, as and when they become due and payable.

95A(2)  [Insolvent person not solvent]  

A person who is not solvent is insolvent.

95A(3)  [Definition of when person is insolvent]  

Section 922 defines when a person becomes insolvent for the purposes of Part 7.10.

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History

S 95A inserted by No 210 of 1992, s 34 (effective 23 June 1993).

SECTION 96   STATEMENT IN A PROSPECTUS  (Repealed by No 201 of 1991, Sch 2 (effective 18 December 1991).)

SECTION 97   STOCK MARKET NOT TO INCLUDE FUTURES MARKET  

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97    In determining whether a market, exchange, place or facility is a stock market, regard shall not be had to the making at that market, exchange or other place, or by means of that facility, as the case may be, of futures contracts.

SECTION 98   TRANSFER DAYS FOR BODIES CORPORATE  (Repealed by No 110 of 1990, Sch 1 (effective 18 December 1990).)

SECTION 99   UNDERLYING SECURITIES  (Repealed by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000). )

Division 8 - Miscellaneous interpretation rules

SECTION 99A   ABBREVIATIONS CONTAINING FULL STOPS  (Repealed by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

SECTION 100   ADDRESS OF REGISTERED OFFICE ETC  

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100(1)  (Contents of notice)  

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Where a provision of this Law requires a notice to be lodged of, or information in an application to specify:

(a)  the address of an office, or of a proposed office, of a body corporate or other person; or

(b)  a change in the situation of an office of a body corporate or other person;

the notice:

(c)  shall specify the full address, or the full new address, as the case requires, of the relevant office including, where applicable, the number of the room and of the floor or level of the building on which the office is situated; and

(d)  where the notice or application relates to the address or situation of an office of a body corporate and the address specified in accordance with paragraph (a) is the address of premises that are not to be occupied by the body corporate - must include a written statement to the effect that the person who occupies those premises has consented in writing to the address being specified in the notice or application and has not withdrawn that consent.

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History

S 100(1) amended by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 100(1) amended by No 210 of 1992, s 175(a) (effective 1 February 1993).

S 100(1) amended by No 110 of 1991, Sch 2 (effective 27 June 1991).

100(2)  (Consent)  

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The Commission may require a person who has lodged a notice or application that includes a statement under paragraph (1)(d) to produce to the Commission the consent referred to in the statement.

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History

S 100(2) amended by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 100(2) amended by No 210 of 1992, s 175(b) (effective 1 February 1993).

S 100(2) inserted by No 110 of 1991, Sch 2 (effective 27 June 1991).

SECTION 100A   OPERATION OF CERTAIN LAWS RELATING TO INSTRUMENTS ON WHICH STAMP DUTY HAS NOT BEEN PAID  

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100A    Nothing in this Law affects the operation of any provision of any law:

(a)  relating to the admissibility in evidence, or any other use, in any proceedings, of a document in respect of which any applicable stamp duty has not been paid; or

(b)  prohibiting the registration by a company of a transfer of securities if any stamp duty applicable in respect of the transfer has not been paid.

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History

S 100A inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 101   AMOUNT OF STOCK REPRESENTING A NUMBER OF SHARES  

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101    In relation to a body corporate the whole or a portion of whose share capital consists of stock, a reference to a number of shares (including a number expressed as a percentage) is, in relation to an amount of stock, a reference to the amount of stock that represents that number of shares.

SECTION 102   APPLICATIONS TO BE IN WRITING  

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102    An application to the Commission for the issuing of a document or the doing of any other act or thing by the Commission under this Law shall be in writing.

Note:

For electronic lodgment of documents with ASIC, see section 352.

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History

S 102 (Note) amended by No 54 of 1998, Sch 5, Pt 4 (effective 1 July 1998).

S 102 (Note) inserted by No 61 of 1998, Sch 2, Pt 5 (effective 1 July 1998).

SECTION 102A   APPLICATION NOT TO BE GRANTED UNLESS APPLICATIONS ALSO MADE UNDER CORRESPONDING LAWS  

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102A(1)  [Purpose]  

This section facilitates the administration, on a national basis, of the Corporations Law of each jurisdiction by requiring some kinds of application to be made under the Corporations Law of each jurisdiction.

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History

S 102A(1) inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

102A(2)  [Expressing an application for effect in each jurisdiction]  

This can be done by expressing an application to be made under the Corporations Law (rather than under the Corporations Law of a particular jurisdiction), so that it has effect as an application under the relevant provision of the Corporations Law of each jurisdiction.

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History

S 102A(2) inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

102A(3)  [Application of section]  

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Subject to subsection (6), this section applies to an application under section 601CB, 601CE, 769, 770, 770A, 779B, 782, 1067, 1126, 1131, 1132, 1144 or 1279 of the Corporations Law of this jurisdiction.

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History

S 102A(3) amended by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000).

S 102A(3) amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

S 102A(3) amended by No 104 of 1994, Sch 8 (effective 1 January 1995).

S 102A(3) amended by No 210 of 1992, s 127 (effective 23 June 1993).

S 102A(3) amended by No 201 of 1991, Sch 3 (effective 18 December 1991).

S 102A(3) inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

102A(4)  [Where application not to be granted]  

The application is not to be granted unless the applicant has also made (by the means described in subsection (2) or otherwise) a corresponding application under the corresponding section of the Corporations Law of each jurisdiction other than this jurisdiction.

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History

S 102A(4) inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

102A(5)  [Where corresponding application has been refused]  

Also, the application is not to be granted if a corresponding application has been refused, or if it is proposed to refuse a corresponding application.

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History

S 102A(5) inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

102A(6)  [Where section does not apply]  

This section does not apply in relation to an application that:

(a)  was made under a previous law of this jurisdiction corresponding to a provision of this Law; and

(b)  is taken because of a provision of this Law to have been made under the provision to which that previous law corresponds.

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History

S 102A(6) inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 102B   ``IN AUSTRALIA OR ELSEWHERE'', ``IN THIS JURISDICTION OR ELSEWHERE''  

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102B    The expression ``in Australia or elsewhere'', or a similar expression, does not limit the generality of the expression ``in this jurisdiction or elsewhere'' or a similar expression.

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History

S 102B inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 103   EFFECT OF CERTAIN CONTRAVENTIONS OF THIS LAW  

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103(1)  [Effect of section]  

This section has effect except so far as this Law otherwise provides.

103(2)  [Certain acts, things, etc not invalid]  

An act, transaction, agreement, instrument, matter or thing is not invalid merely because of:

(a)  a contravention of section 115, 208, 209, 601CA, 601CD or of Chapter 8; or

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(b)  a failure to comply with a requirement of this Law that a person cause a notice, or a copy of a document, to be published in the Gazette or in a newspaper.

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History

S 103(2) amended by No 156 of 1999, Sch 3, Pts 3 and 4 (effective 13 March 2000).

S 103(2) amended by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 103(2) amended by No 210 of 1992, s 23 (effective 1 February 1993).

S 103(2) amended by No 110 of 1991, Sch 5 (effective 27 June 1991).

103(3)  (Omitted by No 110 of 1991, Sch 5 (effective 27 June 1991).)

103(4)  [``invalid'']  

In this section:

``invalid'' includes void, voidable and unenforceable.

103(5)  [Generality of section]  

Nothing in this section limits the generality of anything else in it.

SECTION 104   EFFECT OF PROVISIONS EMPOWERING A PERSON TO REQUIRE OR PROHIBIT CONDUCT  

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104    Where, in accordance with a provision of this Law other than the replaceable rules, a person requires another person to do, or prohibits another person from doing, a particular act, that provision shall be taken to require the other person to comply with the requirement or prohibition, as the case may be.

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History

S 104 amended by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

SECTION 105   CALCULATION OF TIME  

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105(1)  [Particular days or events to be excluded from calculation]  

Where, for any purpose, this Law:

(a)  prohibits, permits or requires the doing of an act or thing within, or by or before the end of; or

(b)  otherwise prescribes, allows or provides for;

a period or time before or after a particular day, act or event, the period shall be calculated without counting that day, or the day of that act or event, as the case may be.

105(2)  [Period between days and events]  

Without limiting the generality of subsection (1), in calculating how many days a particular day, act or event is before or after another day, act or event, the first-mentioned day, or the day of the first-mentioned act or event, shall be counted but not the other day, or the day of the other act or event.

105(3)  [Day not a business day]  

Where the last day of any period prescribed or allowed by this Law for the doing of anything falls on a day that is not a business day in the place in which the thing is to be or may be done, the thing may be done on the first day following which is a business day in that place.

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History

S 105(3) substituted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 106   PERFORMANCE OF FUNCTIONS BY COMMISSION DELEGATE  

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106    For the purpose of the performance of a function, or the exercise of a power, under this Law by a Commission delegate, a reference to the Commission in a provision of this Law relating to the performance of the function, or the exercise of the power, includes a reference to the Commission delegate.

SECTION 107   HEADINGS TO CHAPTERS  (Repealed by No 110 of 1991, Sch 5 (effective 27 June 1991).)

SECTION 108   PARTS OF DOLLAR TO BE DISREGARDED IN DETERMINING MAJORITY IN VALUE OF CREDITORS ETC.  

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108    In determining whether a majority in value of creditors, or a particular proportion in value of creditors, has passed a resolution or done any other act or thing, if a creditor's debt consists of a number of whole dollars and a part of a dollar, the part of the dollar shall be disregarded.

SECTION 109   REFERENCES TO PERSONS, THINGS AND MATTERS  

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109(1)  [Two or more references can refer to same person or thing]  

Except so far as the contrary intention appears, a provision of this Law shall be interpreted in such a manner that any 2 or more references in the provision are capable of having the same referent or referents, or of having a referent or referents in common, as the case requires.

109(2)  [``referent'']  

In subsection (1), ``referent'', in relation to a reference in a provision, means:

(a)  in so far as the reference is interpreted as being in the singular number - a person to whom, or a thing or matter to which; or

(b)  in so far as the reference is interpreted as being in the plural number - any one or 2 or more persons to whom, or of 2 or more things or matters to which;

the reference is taken, in the application of the provision, to refer.

SECTION 109A   REFERENCE TO COMMONWEALTH ACTS  

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109A    Unless the contrary intention appears, a reference in this Law to an Act by its short title is taken to be a reference to an Act of the Commonwealth having that short title.

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History

S 109A inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109B   REFERENCES TO AMENDED OR RE-ENACTED ACTS OF THE COMMONWEALTH, THIS JURISDICTION ETC.  

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109B(1)  [Reference to a short title]  

This section applies to a reference in this Law to a short title that is or was provided by law for the citation of:

(a)  an Act of the Commonwealth or of this or another jurisdiction, as originally enacted; or

(b)  such an Act as amended.

109B(2)  [Act as enacted and amended]  

Except so far as the contrary intention appears, the reference is taken as a reference to that Act as originally enacted and as amended from time to time.

109B(3)  [Where Act repealed and re-enacted]  

Where the Act referred to has been repealed and re-enacted, with or without modifications:

(a)  the reference is taken as including a reference to the re-enacted Act as originally enacted and as amended from time to time; and

(b)  where:

(i) particular provisions of the repealed Act are referred to; and

(ii) provisions of the re-enacted Act correspond to those provisions;

the reference to those particular provisions is taken as including a reference to those corresponding provisions.

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History

S 109B inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109C   EVERY SECTION A SUBSTANTIVE ENACTMENT  

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109C    Every section of this Law has effect as a substantive enactment, without introductory words.

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History

S 109C inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109D   HEADINGS, SCHEDULES, MARGINAL NOTES, FOOTNOTES AND END NOTES  

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109D(1)  [Headings to Chapters, Parts, Divisions and Subdivisions]  

The headings of the Chapters, Parts, Divisions and Subdivisions into which this Law is divided are taken to be part of this Law.

109D(2)  [Schedule]  

A Schedule to this Law is taken to be part of this Law.

109D(3)  [Section heading, footnote and end note]  

Each heading to a section of this Law, and each footnote or end note to this Law, is taken not to be part of this Law.

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History

S 109D inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109DA   EXERCISE OF CERTAIN POWERS BETWEEN PASSING AND COMMENCING OF AMENDMENTS OF LAW  

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109DA(1)  [Application]  

This section applies where an Act (in this section referred to as the Act concerned), being:

(a)  an Act enacted on or after the date of commencement of this section that is not to come into operation immediately upon its enactment; or

(b)  an Act enacted before the date of commencement of this section that did not come into operation on or before that date;

results in the amendment of this Law so that this Law, as amended, will confer power to make an appointment or to make an instrument of a legislative or administrative character (including rules, regulations or by-laws).

109DA(2)  [Before Act concerned commences]  

Unless the contrary intention appears, the power so conferred may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.

109DA(3)  [Effective date of appointment or instrument]  

An appointment or instrument made under subsection (2) or, if the instrument contains a number of provisions, each of those provisions, takes effect:

(a)  on the day on which the Act concerned comes into operation; or

(b)  on the day on which the appointment, instrument or provision, as the case may be, would have taken effect if the Act concerned had been in operation when the appointment or instrument was made;

whichever is later.

109DA(4)  [Making or publication of proclamation or other instrument]  

Where a provision of this Law is to come into operation on a date to be fixed by a Proclamation or other instrument, the Proclamation or other instrument may be made and published at any time after the enactment of the originating provision.

109DA(5)  [Interpretation]  

In subsections (1), (2), (3) and (4):

``Act'' includes a provision or provisions of an Act;

``Law'' includes a provision or provisions of this Law.

109DA(6)  [Regulations]  

This section applies in relation to a regulation that results in the amendment of the Corporations Regulations so that those Regulations, as amended, will confer power to make an appointment or to make an instrument of a legislative or administrative character, and so applies as if:

(a)  the first-mentioned regulation were an Act; and

(b)  the Corporations Regulations were this Law.

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History

S 109DA inserted by No 110 of 1991, Sch 2 (effective 27 June 1991).

SECTION 109E   EFFECT OF REPEAL  

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109E    Where a provision of this Law is repealed, the repeal does not:

(a)  revive anything not in force or existing at the time at which the repeal takes effect; or

(b)  affect the previous operation of any provision so repealed, or anything duly done or suffered under any provision so repealed; or

(c)  affect any right, privilege, obligation or liability acquired, accrued or incurred under any provision so repealed; or

(d)  affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any provision so repealed; or

(e)  affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repeal had not taken effect.

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History

S 109E inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109F   IMPLIED REPEALS ETC.  

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109F    A reference in section 109E to the repeal of a provision of this Law is a reference to the repeal of the originating provision concerned and includes a reference to:

(a)  such a repeal effected by implication; and

(b)  the abrogation or limitation (however effected) of the effect of the provision; and

(c)  the exclusion (however effected) of the application of the provision to any person, subject-matter or circumstance.

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History

S 109F inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109G   EFFECT OF EXPIRATION OF PROVISION  

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109G    Where a provision of this Law expires, lapses or otherwise ceases to have effect, sections 109E and 109F apply as if the provision had been repealed.

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History

S 109G inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109H   REGARD TO BE HAD TO PURPOSE OR OBJECT OF LAW  

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109H    In the interpretation of a provision of this Law, a construction that would promote the purpose or object underlying the Law (whether that purpose or object is expressly stated in the Law or not) is to be preferred to a construction that would not promote that purpose or object.

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History

S 109H inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109J   USE OF EXTRINSIC MATERIAL IN THE INTERPRETATION OF THIS LAW  

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109J(1)  [Application of section]  

This section applies where, in the interpretation of a provision of this Law, any material not forming part of this Law is capable of assisting in working out the meaning of the provision.

109J(2)  [Material may be used to confirm or determine meaning]  

Subject to subsection (4), consideration may be given to that material:

(a)  to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Law and the purpose and object underlying the Law; or

(b)  to determine the meaning of the provision when:

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision, taking into account its context in the Law and the purpose or object underlying the Law, leads to a result that is manifestly absurd or is unreasonable.

109J(3)  [Material may include]  

The material that may be considered under subsection (2) in the interpretation of a provision of this Law includes, but is not limited to:

(a)  all matters not forming part of the Law that are set out in the Corporations Act 1989 or a corresponding law of a jurisdiction, or the document containing the text of the Law as printed by the Government Printer; and

(b)  any relevant report of the Advisory Committee, or of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body, that was made before either House of the Parliament before the time when the originating provision was enacted; and

(c)  any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the originating provision was enacted; and

(d)  any treaty or other international agreement that is referred to in this Law; and

(e)  any explanatory memorandum relating to the Bill containing the originating provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the originating provision was enacted; and

(f)  the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the originating provision be read a second time in that House; and

(g)  any document (whether or not a document to which a preceding paragraph applies) that is declared by this Law to be a relevant document for the purposes of this section; and

(h)  any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.

109J(4)  [Determination of consideration or weight to be given to material]  

In determining whether consideration should be given to any material in accordance with subsection (2), or in considering the weight to be given to any such material, regard is to be had, in addition to any other relevant matters, to:

(a)  the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the law and the purpose or object underlying the law; and

(b)  the need to avoid prolonging legal or any other proceedings without compensating advantage.

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History

S 109J inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109K   CHANGES TO STYLE NOT TO AFFECT MEANING  

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109K    Where:

(a)  a provision of this Law has expressed an idea in a particular form of words; and

(b)  another provision of this Law appears to have expressed the same idea in a different form of words for the purpose of using a clearer style;

the ideas are not taken to be different merely because different forms of words were used.

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History

S 109K inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109L   EXAMPLES  

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109L    Where this Law includes an example of the operation of a provision:

(a)  the example is not taken to be exhaustive; and

(b)  if the example is inconsistent with the provision, the provision prevails.

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History

S 109L inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109M   PARTS OF SPEECH AND GRAMMATICAL FORMS OF WORDS  

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109M    In this Law, unless the contrary intention appears, where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

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History

S 109M inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109N   REFERENCES TO OFFICES AND OFFICERS  

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109N(1)  [Occupant of position or person who performs duties]  

A reference in this Law in general terms to a person holding or occupying a particular office or position includes a reference to any person who at any time occupies that office or position for the time being, or performs the duties of that office for the time being.

109N(2)  [Office or officer in and for the Commonwealth]  

Unless the contrary intention appears, a reference in this Law to an office or officer is a reference to such office or officer in and for the Commonwealth.

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History

S 109N inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109P   REFERENCES TO COMPANIES ETC  

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109P    Express references in this Law to companies, corporations or bodies corporate do not imply that expressions in this Law of the kind mentioned in section 85A do not include companies, corporations or bodies corporate.

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History

S 109P amended by No 110 of 1991, Sch 2 (effective 27 June 1991).

S 109P inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109Q   REFERENCES TO COMMONWEALTH LAWS  

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109Q(1)  [Acts for administration etc of Territory] 

In this Law, unless the contrary intention appears, a reference to the law of the Commonwealth or to a law of the Commonwealth does not include a reference to a law in force in a Territory in so far as the law is so in force by virtue of an Act providing for the acceptance, administration or government of that Territory.

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History

S 109Q(1) inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

109Q(2)  [Acts not for administration etc of Territory]  

For the purposes of this section, none of the following is an Act providing for the administration or government of a Territory:

(a)  the Corporations Act 1989;

(b)  the Corporations Law of the Capital Territory;

(c)  the Australian Securities and Investments Commission Act 1989.

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History

S 109Q(2) amended by No 54 of 1998, Sch 4, Pt 1 (effective 1 July 1998).

S 109Q(2) inserted by No 110 of 1991, Sch 2 (effective 27 June 1991).

SECTION 109R   RULES AS TO GENDER AND NUMBER  

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109R    In this Law, unless the contrary intention appears:

(a)  words importing a gender include every other gender; and

(b)  words in the singular number include the plural and words in the plural number include the singular.

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History

S 109R inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109S   PRODUCTION OF RECORDS KEPT IN COMPUTERS ETC.  

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109S    Where a person who keeps a record of information by means of a mechanical, electronic or other device is required by or under this Law:

(a)  to produce the information or a document containing the information to a court, tribunal or person; or

(b)  to make a document containing the information available for inspection by a court, tribunal or person;

then, unless the court, tribunal or person otherwise directs:

(c)  the requirement is taken to oblige the person to produce or make available for inspection, as the case may be, a writing that reproduces the information in a form capable of being understood by the court, tribunal or person; and

(d)  the production of such a writing to the court, tribunal or person constitutes compliance with the requirement.

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History

S 109S inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109T   CHANGE OF NAME OF BODY OR OFFICE  

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109T    Where:

(a)  the name of a body is changed by law (whether or not the body is incorporated); or

(b)  the name of an office is changed by law;

then, a reference in this Law to the body or office under the former name, except in relation to matters that occurred before the change took effect, is taken as a reference to the body or office under the new name.

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History

S 109T inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109U   COMPLIANCE WITH FORMS  

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109U    Where this Law prescribes a form, strict compliance with the form is not required and substantial compliance is sufficient.

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History

S 109U inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109V   CONTENT OF STATEMENTS OF REASONS FOR DECISIONS  

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109V    Where this Law requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ``reasons'' , ``grounds'' or any other expression is used, the instrument giving the reasons must also:

(a)  set out the findings on material questions of fact; and

(b)  refer to the evidence or other material on which those findings were based.

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History

S 109V inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109W   ATTAINMENT OF PARTICULAR AGE  

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109W    For the purposes of this Law, the time at which a person attains a particular age expressed in years is the commencement of the relevant anniversary of the date of the birth of that person.

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History

S 109W inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109X   SERVICE OF DOCUMENTS  

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109X(1)  [Service]  

For the purposes of any law, a document may be served on a company or recognised company by:

(a)  leaving it at, or posting it to, the company's registered office; or

(b)  delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or

(c)  if a liquidator of the company has been appointed - leaving it at, or posting it to, the address of the liquidator's office in the most recent notice of that address lodged with ASIC; or

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(d)  if an administrator of the company has been appointed - leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC.

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History

S 109X(1) amended by No 54 of 1998, Sch 5, Pt 4 (effecive 1 July 1998).

S 109X(1) substituted by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

109X(2)  [Director or company secretary]  

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For the purposes of any law, a document may be served on a director or company secretary (in addition to the methods of service set out in subsection (4)) by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 205B(1), (2) or (4) or section 117 or 601BC. However, this only applies to service on the director or company secretary:

(a)  in their capacity as a director or company secretary; or

(b)  for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary.

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History

S 109X(2) amended by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000).

S 109X(2) amended by No 54 of 1998, Sch 5, Pt 4 (effective 1 July 1998).

S 109X(2) substituted by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

109X(3)  [Service and Execution of Process Act 1992]  

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Subsections (1) and (2) do not apply to a process, order or document that may be served under section 9 of the Service and Execution of Process Act 1992.

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History

S 109X(3) substituted by No 61 of 1998, Sch 2, Pt 1 (effective 1 July1998).

109X(4)  [Service on individual]  

For the purposes of this Law, a document may be served on an individual by:

(a)  delivering it to the person personally; or

(b)  leaving it at, or posting it to, the residential or business address of the person last known to the person serving the document.

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History

S 109X(4) substituted by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

109X(5)  [Service on body corporate]  

For the purposes of this Law, a document may be served on a body corporate other than a company, recognised company or registered body by leaving it at, or posting it to, the head office, a registered office or the principal place of business of the body corporate.

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History

S 109X(5) inserted by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

109X(6)  [Service in a different way]  

This section does not affect the operation of a law or the power of a court to authorise a document to be served in a different way.

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History

S 109X(6) inserted by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

109X(7)  [``serve'', ``give'', ``send'']  

This section applies to provisions of a law dealing with service whether it uses the expression ``serve'' or uses any other similar expression such as ``give'' or ``send''.

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History

S 109X(7) inserted by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

SECTION 109Y   MEANING OF SERVICE BY POST  

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109Y    Where a provision of this Law authorises or requires any document to be served by post, whether the expression ``serve'' or the expression ``give'' or ``send'' or any other expression is used, then:

(a)  the service is taken to be effected by properly addressing and posting (under pre-paid post) the document as a letter to the last known address of the person to be served; and

(b)  unless the contrary is proved, the service is taken to have been effected at the time at which the letter would have been delivered in the ordinary course of post.

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History

S 109Y inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109Z   MEASUREMENT OF DISTANCE  

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109Z    In the measurement of any distance for the purposes of this Law, that distance is, unless the contrary intention appears, to be measured in a straight line on a horizontal plane.

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History

S 109Z inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109ZA   EXPRESSIONS OF TIME  

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109ZA    Where in this Law any reference to time occurs, such time is, unless it is otherwise specifically stated, taken in each jurisdiction to mean the standard legal time in that jurisdiction.

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History

S 109ZA inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109ZB   EXERCISE OF POWERS AND DUTIES  

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109ZB(1)  [Power may be exercised, duty to be performed]  

Where this Law confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty must be performed from time to time as the occasion requires.

109ZB(2)  [Holder for the time being of an office]  

Where this Law confers a power or imposes a duty on the holder of an office as such, then, unless the contrary intention appears, the power may be exercised and the duty must be performed by the holder for the time being of the office.

109ZB(3)  [``may'']  

Where this Law provides that a person, court or body may do a particular act or thing, and the word ``may'' is used, the act or thing may be done at the discretion of the person, court or body.

109ZB(4)  [Vacancy/vacancies in membership of body]  

Where this Law confers a power or function, or imposes a duty, on a body, whether incorporated or unincorporated, the exercise of the power or the performance of the function or duty is not affected merely because of a vacancy or vacancies in the membership of the body.

109ZB(5)  [Like manner and like conditions]  

Where this Law confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power is, unless the contrary intention appears, taken as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

109ZB(6)  [Some only; particular; different]  

Where this Law confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) with respect to particular matters (however the matters are described), the power is taken to include a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters.

109ZB(7)  [Implication]  

Where this Law confers a power to make, grant or issue any instrument (including rules, regulations or by-laws), the power is not taken, by implication, not to include the power to make provision for or in relation to a particular aspect of a matter by reason only that provision is made by the Law in relation to another aspect of that matter or in relation to another matter.

109ZB(8)  [Power to appoint]  

Subject to subsection (9), where this Law confers upon any person or authority a power to make appointments to any office or place, the power is, unless the contrary intention appears, taken to include a power to appoint a person to act in the office or place until:

(a)  a person is appointed to the office or place; or

(b)  the expiration of 12 months after the office or place was created or became vacant, as the case requires;

whichever first happens, and also to include a power to remove or suspend any person appointed, and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place.

109ZB(9)  [Recommendation, approval or consent]  

Where the power of such a person or authority to make any such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, the power to make an appointment to act in an office or place or the power of removal is, unless the contrary intention appears, only exercisable upon the recommendation or subject to the approval or consent of that other person or authority.

109ZB(10)  [Instrument may require making of statutory declaration]  

Where this Law confers a power to make, grant or issue an instrument (including rules, regulations or by-laws) prescribing penalties not exceeding a specified amount or imprisonment for a specified period, that limitation on the penalties that may be prescribed does not prevent the instrument from requiring the making of a statutory declaration.

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History

S 109ZB inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109ZBA   POWER TO MAKE INSTRUMENTS ETC. MAY BE EXERCISED BY REFERENCE TO CLASSES  

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109ZBA    Where this Law confers upon an authority power to make an instrument (including rules, regulations or by-laws) or a resolution:

(a)  specifying, declaring or prescribing a matter or thing; or

(b)  doing anything in relation to a matter or thing;

then, in exercising the power, the authority may identify the matter or thing by referring to a class or classes of matters or things.

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History

S 109ZBA inserted by No 110 of 1991, Sch 2 (effective 27 June 1991).

SECTION 109ZC   POWER TO DETERMINE INCLUDES AUTHORITY TO ADMINISTER OATH  

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109ZC    Any court, Judge, justice of the peace, officer, commissioner, arbitrator, or other person authorised by law, or by consent of parties, to hear and determine any matter, has authority to receive evidence and examine witnesses and to administer an oath to all witnesses legally called before them respectively.

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History

S 109ZC inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109ZD   DELEGATIONS  

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109ZD    Where this Law confers power to delegate a function or power, then, unless the contrary intention appears, the power of delegation is not limited to delegating the function or power to a specified person but includes a power to delegate the function or power to any person from time to time holding, occupying, or performing the duties of, a specified office or position.

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History

S 109ZD inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109ZE   EFFECT OF DELEGATION  

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109ZE    Where this Law confers power on a person or body (in this section called the ``authority'' ) to delegate a function or power:

(a)  the delegation may be made either generally or as otherwise provided by the instrument of delegation; and

(b)  the powers that may be delegated do not include that power to delegate; and

(c)  a function or power so delegated, when performed or exercised by the delegate, is, for the purposes of this Law, taken to have been performed or exercised by the authority; and

(d)  a delegation by the authority does not prevent the performance or exercise of a function or power by the authority; and

(e)  if the authority is not a person, section 109ZF applies as if it were.

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History

S 109ZE inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 109ZF   EXERCISE OF CERTAIN POWERS AND FUNCTIONS BY A DELEGATE  

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109ZF    Where, under this Law, the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of this Law or any Act of the Commonwealth, of a State or of a Territory, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter.

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S 109ZF inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

Division 9 - Interpreting the regulations

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History

Div 9 inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 110   EXPRESSIONS HAVE THE SAME MEANING AS IN THIS LAW  

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110(1)  [Regulations]  

Subject to subsection (2), an expression has in the regulations the same meaning as it has in this Law.

110(2)  [Where regulations provision has effect]  

Where a provision of the regulations has effect for the purposes of a particular provision of this Law, an expression has in that provision of the regulations the same meaning as it has in that provision of this Law.

110(3)  [Application]  

Subject to subsection (2), this Part applies in relation to the regulations as if the provisions of the regulations were provisions of this Law.

110(4)  [Effect]  

This section has effect except so far as the contrary intention appears in the regulations.

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S 110 substituted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 110A   SEVERING INVALID PROVISIONS  

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110A(1)  [Interpretation]  

The regulations are to be interpreted subject to this Law.

110A(2)  [Inconsistencies]  

It is intended that where, but for this section, a provision of the regulations would have been interpreted as being inconsistent with this Law, the provision is nevertheless to be valid in so far as it is not so inconsistent.

Division 10 - Interpreting other subordinate instruments

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Div 10 inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 110B   EXPRESSIONS HAVE THE SAME MEANING AS IN THIS LAW  

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110B(1)  [Same meaning as in Law]  

An expression has in an instrument made, granted or issued under this Law the same meaning as it has in this Law.

110B(2)  [Application]  

This Part applies in relation to an instrument made, granted or issued under this Law as if the instrument's provisions were provisions of this Law.

110B(3)  [Effect]  

This section has effect in relation to an instrument except so far as the contrary intention appears in the instrument.

SECTION 110C   SEVERING INVALID PROVISIONS  

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110C(1)  [Interpretation of instrument]  

An instrument made, granted or issued under this Law is to be interpreted:

(a)  subject to this Law; and

(b)  so as not to exceed the powers under which it was made, granted or issued.

110C(2)  [Powers not to be exceeded]  

It is intended that where, but for this section, such an instrument would have been interpreted as exceeding the powers under which it was made, granted or issued, it is nevertheless to be valid in so far as it does not exceed those powers.

Division 11 - Application of certain provisions

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Div 11 inserted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 110D   CHAPTERS 1 TO 6 AND 9  

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110D    Chapters 1 to 6, inclusive, and 9, apply, according to their tenor, in relation to:

(a)  natural persons, whether resident in this jurisdiction or in Australia or not and whether Australian citizens or not; and

(b)  all bodies corporate and unincorporated bodies, whether formed or carrying on business in this jurisdiction or in Australia or not; and

(c)  acts and omissions outside this jurisdiction, whether in Australia or not.

SECTION 110E   APPLICATION OF THIS LAW IN COASTAL SEA  

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110E    This Law has effect in and in relation to the coastal sea of this jurisdiction as if that coastal sea were part of this jurisdiction.

PART 1.2A - DISCLOSING ENTITIES

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Pt 1.2A inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

Division 1 - Object of Part

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Heading to Div 1 inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AA   OBJECT OF PART  

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111AA    The object of this Part is:

(a)  to define ``disclosing entity'' and other key terms relevant to disclosing entities (this is done in Division 2); and

(b)  to outline the significance for this Law of being a disclosing entity (this is done in Division 3); and

(c)  to provide for exemptions from, and modifications of, the special requirements imposed by this Law in relation to disclosing entities (this is done in Division 4).

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S 111AA inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

Division 2 - Definitions

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Heading to Div 2 inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AB   TERMS DEFINED IN DIVISION  

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111AB    This Division contains definitions of the following terms:

(a)  disclosing entity (section 111AC);

(b)  ED securities (section 111AD);

(c)  ED securities of a disclosing entity (section 111AK);

(d)  listed disclosing entity (subsection 111AL(1));

(e)  quoted ED securities (section 111AM);

(f)  unlisted disclosing entity (subsection 111AL(2)).

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S 111AB inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AC   DISCLOSING ENTITY  

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111AC(1)  [Securities other than interests in a managed investment scheme]  

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If any securities of a body (except interests in a managed investment scheme) are ED securities, the body is a disclosing entity for the purposes of this Law.

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S 111AC(1) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 111AC(1) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AC(2)  [Interests in a managed investment scheme]  

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If any interests in a managed investment scheme are ED securities, the undertaking to which the interests relate is a disclosing entity for the purposes of this Law.

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History

S 111AC(2) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 111AC(2) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AD   ED SECURITIES  

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111AD(1)  [``ED securities'']  

Securities of a body are ED securities (short for ``enhanced disclosure securities'') for the purposes of this Law if, and only if:

(a)  they are ED securities under section 111AE, 111AF, 111AG or 111AI; and

(b)  they are not declared under section 111AJ not to be ED securities.

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History

S 111AD(1) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AD(2)  [Units of securities included in class]  

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For the purposes of sections 111AE, 111AF, 111AG and 111AI, a class of shares or debentures is taken to include units of shares or debentures in that class.

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S 111AD(2) substituted by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

SECTION 111AE   SECURITIES QUOTED ON A STOCK MARKET  

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111AE(1)  [ED securities quoted on stock market]  

Securities in a class of securities of a body are ED securities if securities in that class are quoted on a stock market of a securities exchange.

111AE(2)  [Commonwealth bodies]  

Subsection (1) does not apply to securities of a body if:

(a)  the body is a public authority of the Commonwealth or an instrumentality or agency of the Crown in right of the Commonwealth; and

(b)  the only securities of the body that are quoted as mentioned in subsection (1) are debentures; and

(c)  both the repayment of principal, and the payment of interest, in respect of those debentures is guaranteed by the Commonwealth.

111AE(3)  [State or Territory bodies]  

Subsection (1) does not apply to securities of a body that is:

(a)  a public authority of a State or Territory; or

(b)  an instrumentality or agency of the Crown in right of a State or Territory.

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S 111AE inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AF   SECURITIES TO WHICH LODGED OR DEEMED PROSPECTUS RELATES  

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111AF(1)  [Securities other than debentures]  

Securities (except debentures) in a class of securities of a body are ED securities if:

(a)  a disclosure document in relation to securities in that class has been lodged with ASIC under Chapter 6D; or

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(b)  securities in that class have been issued pursuant to the disclosure document; and

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(c)  after an issue of securities in that class pursuant to the disclosure document, 100 or more persons held securities in that class; and

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(d)  securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (c).

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S 111AF(1) amended by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000).

S 111AF(1) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AF(2)  [``corresponding previous law'']  

In this section:

``corresponding previous law'' does not include a law, or part of a law, in force before 1 July 1982 (which is when the Companies Act 1981 commenced).

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S 111AF(2) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AG   SECURITIES ISSUED AS CONSIDERATION FOR AN ACQUISITION UNDER AN OFF-MARKET TAKEOVER BID OR PART 5.1 COMPROMISE OR ARRANGEMENT  

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History

Heading amended by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000).

111AG(1)  [Securities issued for off-market takeover bid]  

Securities (except debentures) in a class of securities of a body are ED securities if:

(a)  securities in that class have been issued by the body as consideration for offers under an off-market bid; and

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(b)  after an issue of securities in that class under the off-market bid, 100 or more persons held securities in that class; and

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(c)  securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (b).

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S 111AG(1) amended by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000).

S 111AG(1) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AG(2)  [Securities issued under scheme]  

Securities in a class of securities of a body are ED securities if:

(a)  securities in that class have been issued as consideration for the acquisition or cancellation of securities of another body pursuant to a compromise or arrangement under Part 5.1 or a corresponding previous law; and

(b)  securities in that class, or those or any other securities of the other body, were ED securities immediately before securities in that class were first issued pursuant to the compromise or arrangement; and

(c)  after an issue of securities in that class pursuant to the compromise or arrangement, 100 or more persons held securities in that class; and

(d)  securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (c).

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S 111AG(2) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AG(3)  [``corresponding previous law'']  

In this section:

``corresponding previous law'' :

(a)  when used in subsection (1), does not include a law, or part of a law, in force before 1 July 1981 (which is when the Companies (Acquisition of Shares) Act 1980 commenced); and

(b)  when used in subsection (2), does not include a law, or part of a law, in force before 1 July 1982 (which is when the Companies Act 1981 commenced).

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S 111AG(3) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AH   WHEN A PERSON HOLDS SECURITIES FOR THE PURPOSES OF SECTIONS 111AF AND 111AG  

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111AH(1)  [Definition of holding securities]  

For the purposes of sections 111AF and 111AG, a person holds securities if, and only if:

(a)  the person is registered as the holder of the securities in a register under section 169, 170, 171, 601CZB or 1070; or

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(b)  the person is entitled to be so registered.

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S 111AH(1) amended by No 156 of 1999, Sch 3, Pt 2 (effective 13 March 2000).

S 111AH(1) amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

S 111AH(1) amended by No 115 of 1995, Sch 6 (effective 9 December 1995).

S 111AH(1) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AH(2)  [Joint holders count as one person]  

For the purposes of sections 111AF and 111AG, joint holders of securities count as one person.

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S 111AH(2) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AI   DEBENTURES THAT NEED TRUSTEE APPOINTED UNDER SECTION 260FA  

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111AI    Debentures of a borrower are ED securities if section 260FA requires the borrower to appoint a trustee.

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S 111AI substituted by No 156 of 1999, Sch 3, Pt 2 (effective 13 March 2000).

SECTION 111AJ   REGULATIONS MAY DECLARE SECURITIES NOT TO BE ED SECURITIES  

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111AJ(1)  [Declaration]  

The regulations may declare specified securities of bodies not to be ED securities.

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S 111AJ(1) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AJ(2)  [Effect of regulations]  

Regulations in force for the purposes of subsection (1) have effect accordingly, despite anything else in this Division.

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S 111AJ(2) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AK   ED SECURITIES OF A DISCLOSING ENTITY  

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111AK    For the purposes of this Law, ED securities because of which (having regard to section 111AC) a disclosing entity is such an entity are ED securities of the entity.

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S 111AK inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AL   LISTED OR UNLISTED DISCLOSING ENTITY  

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111AL(1)  [``listed disclosing entity'']  

For the purposes of this Law, a disclosing entity is a listed disclosing entity if all or any ED securities of the entity are quoted ED securities.

111AL(2)  [``unlisted disclosing entity'']  

For the purposes of this Law, a disclosing entity that is not a listed disclosing entity is an unlisted disclosing entity .

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S 111AL inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AM   QUOTED ED SECURITIES  

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111AM    For the purposes of this Law, ED securities are quoted ED securities if they are ED securities because of section 111AE.

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S 111AM inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

Division 3 - Significance of being a disclosing entity

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Heading to Div 3 inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AN   DIVISION CONTAINS OUTLINE OF SIGNIFICANCE OF BEING A DISCLOSING ENTITY  

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111AN    This Division outlines the significance for this Law of being a disclosing entity.

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S 111AN inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AO   ACCOUNTING REQUIREMENTS  

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111AO    A disclosing entity has to prepare financial statements and reports for half-years as well as full financial years. These requirements are set out in Chapter 2M.

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S 111AO substituted by No 61 of 1998, Sch 2 Pt 4 (effective 1 July 1998).

SECTION 111AP   CONTINUOUS DISCLOSURE REQUIREMENTS  

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111AP(1)  [Requirements of sec 1001A and 1001B]  

A disclosing entity is subject to the continuous disclosure requirements of sections 1001A and 1001B.

111AP(2)  [Application of sec 1001A]  

Section 1001A applies to listed disclosing entities and requires them to comply with certain obligations in the listing rules of a securities exchange requiring the notification of information.

111AP(3)  [Lodgment of documents]  

Section 1001B applies to unlisted disclosing entities and requires them to lodge documents containing information.

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S 111AP inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AQ   PROSPECTUS RELIEF  

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111AQ    Section 713 applies (subject to certain qualifications) to prospectuses for quoted ED securities of disclosing entities. The section's requirements for the content of prospectuses are less comprehensive than those that apply to other prospectuses under section 710.

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S 111AQ amended by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000).

S 111AQ inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

Division 4 - Exemptions and modifications

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Heading to Div 4 inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AR   MEANING OF ``DISCLOSING ENTITY PROVISIONS''  

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111AR(1)  [``disclosing entity provisions'']  

For the purposes of this Division, the disclosing entity provisions are the provisions of the following:

(a)  Chapter 2M as it applies to disclosing entities;

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(b)  (Repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

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(c)  (Repealed by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).)

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(d)  sections 1001A and 1001B;

(e)  (Repealed by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).)

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S 111AR(1) amended by No 61 of 1998, Sch 2, Pt 4 (effective 1 July 1998).

S 111AR(1) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AR(2)  [Regulations]  

A reference in subsection (1) to a Part, Division or section includes a reference to regulations in force for the purposes of the Part, Division or section.

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S 111AR(2) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AS   EXEMPTIONS BY REGULATIONS  

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111AS(1)  [Exemptions]  

The regulations may exempt specified persons from all or specified disclosing entity provisions:

(a)  either generally or as otherwise specified; and

(b)  either unconditionally or subject to specified conditions.

111AS(2)  [Specified securities may be exempted]  

Without limiting subsection (1), an exemption may relate to specified securities.

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S 111AS inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AT   EXEMPTIONS BY THE COMMISSION  

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111AT(1)  [Exemptions by Commission]  

The Commission may, by writing, exempt specified persons from all or specified disclosing entity provisions:

(a)  either generally or as otherwise specified; and

(b)  either unconditionally or subject to specified conditions.

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S 111AT(1) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AT(2)  [Specified securities may be exempted]  

Without limiting subsection (1), an exemption may relate to specified securities.

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S 111AT(2) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

111AT(3)  [Exemption to be published in Gazette]  

The Commission must cause a copy of an exemption to be published in the Gazette.

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S 111AT(3) inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AU   ENFORCING CONDITIONS OF EXEMPTIONS  

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111AU(1)  [Intentional or reckless contravention]  

A person must not intentionally or recklessly contravene a condition to which an exemption under section 111AS or 111AT is subject.

111AU(2)  [Powers of Court]  

If a person contravenes such a condition, the Court may, on the application of the Commission, order the person to comply with the condition.

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S 111AU inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AV   MODIFICATIONS BY REGULATIONS  

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111AV(1)  [Modifications by regulations]  

The regulations may make modifications of all or specified disclosing entity provisions.

111AV(2)  [Modification may relate to specified securities]  

Without limiting subsection (1), a modification may relate to specified securities.

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S 111AV inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AW   EXEMPTIONS AND MODIFICATIONS HAVE EFFECT  

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111AW    Exemptions and modifications under this Division have effect accordingly.

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S 111AW inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

SECTION 111AX   EFFECT OF DIVISION  

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111AX    Nothing in this Division limits, or is limited by, any other exemption or modification power (for example, section 340, 341 or 741).

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S 111AX amended by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000).

S 111AX amended by No 61 of 1998, Sch 2 Pt 4 (effective 1 July 1998).

S 111AX inserted by No 31 of 1994, Sch 1, Pt 1 (effective 1 July 1994).

CCH Note: Part 1.2B - Financial institutions (sec 111AY to 111AZI) repealed by No 44 of 1999, Sch 3 Pt 2 (effective 1 July 1999).

PART 1.3 - APPLICATION ORDERS

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Pt 1.3 substituted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 111A   POWER TO MAKE  

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111A(1)  [Written application orders]  

The Minister may make written orders, to be known as application orders, specifying matters that this Law requires or permits to be specified by or in application orders.

111A(2)  [Not to be inconsistent with Law]  

An order under this section must not be inconsistent with this Law.

SECTION 111B   ORDERS UNDER THIS PART AND CORRESPONDING LAWS  

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111B(1)  [Object]  

The object of this section is to make it easier to find out how the Corporations Law of each jurisdiction operates so far as concerns matters that, because of differences in the circumstances of the various jurisdictions, are dealt with by application orders under section 111A of that Law.

111B(2)  [Section 111A orders under Law of different jurisdictions]  

An order under section 111A of this Law may be included in the same document as an order that is, or as 2 or more orders each of which is, an order under section 111A of the Corporations Law of another jurisdiction.

111B(3)  [2 or more orders]  

Where, under subsection (2), 2 or more orders are included in the same document, the text of the respective orders:

(a)  may be integrated and arranged so as to present more clearly and simply the matters that are specified by or in the orders for the purposes of corresponding provisions of the laws of the jurisdictions concerned; and

(b)  in particular, may be arranged so as to allow the reader to compare more easily the matter specified for the purposes of a provision of one law with the matter specified for the purposes of the corresponding provision of another law.

111B(4)  [``principal orders'']  

Where:

(a)  under subsection (3), the text of 2 or more orders (in this subsection called the ``principal orders'' ) has been integrated and arranged as mentioned in that subsection; and

(b)  under subsection (2), 2 or more orders each of which amends any of the principal orders are included in the same document;

the text of the amending orders may be integrated and arranged so that the arrangement of the amendments corresponds to the arrangement of the text of the principal orders.

111B(5)  [Validity not prejudiced]  

Nothing in this section prejudices the validity of a document that purports to set out, in any form, an order under section 111A.

SECTION 111C   SPECIFYING A MATTER BY REFERENCE TO ANOTHER INSTRUMENT  

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111C(1)  [Application order may specify]  

Subject to subsection 111A(2), an application order may specify a matter by applying, adopting or incorporating, with or without modifications:

(a)  the provisions of:

(i) an Act of this jurisdiction; or

(ii) regulations under such an Act;

as in force at a particular time or as in force from time to time; or

(b)  matter contained in any other instrument or writing as in force or existing when the order takes effect.

111C(2)  [Application must not specify a matter in some ways]  

Except as otherwise expressly provided in this Law, an application order must not specify a matter by applying, adopting or incorporating matter contained in an instrument or other writing as in force or existing from time to time.

SECTION 111D   NOTIFICATION IN THE GAZETTE  

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111D    As soon as practicable after an application order is made, the Minister must cause to be published in the Gazette a notice of the order having been made, and of the place or places where copies of the order can be bought.

SECTION 111E   WHEN ORDER TAKES EFFECT  

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111E    An application order takes effect from:

(a)  a specified day; or

(b)  a specified time on a specified day; or

(c)  the day, or day and time, of commencement of a specified Commonwealth Act or of a specified provision of a Commonwealth Act; or

(d)  otherwise - the day on which notice of the order having been made is published under subsection 111D(1).

SECTION 111F   INTERPRETATION OF APPLICATION ORDERS  

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111F(1)  [Meaning as in Law]  

Subject to subsection (2), an expression has in an application order the same meaning as it has in this Law.

111F(2)  [Particular provision of Law]  

Where a provision of an application order has effect for the purposes of a particular provision of this Law or the regulations, an expression has in that provision of the order the same meaning as it has in that provision of this Law or the regulations.

111F(3)  [Part 1.2]  

Subject to subsection (2), Part 1.2 applies in relation to an application order as if the order's provisions were provisions of this Law.

111F(4)  [Contrary intention]  

This section has effect in relation to an order except so far as the contrary intention appears in the order.

SECTION 111G   SEVERING INVALID PROVISIONS  

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111G(1)  [Interpretation of order]  

An application order is to be interpreted:

(a)  subject to this Law; and

(b)  so as not to exceed the powers conferred by this Part.

111G(2)  [Powers not to be exceeded]  

It is intended that where, but for this section, an application order would have been interpreted as exceeding the powers conferred by this Part, the order is nevertheless to be valid in so far as it does not exceed those powers.

SECTION 111H   EFFECT OF CERTAIN INSTRUMENTS MADE BEFORE 1 JANUARY 1991  

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111H(1)  [Application of section]  

This section applies where:

(a)  before 1 January 1991, a Minister made an instrument that purported to be an application order specifying a matter for the purposes of a provision of this Law, or for the purposes of a provision of the Corporations Law of each of 2 or more jurisdictions including this jurisdiction; and

(b)  the instrument was expressed to take effect on 1 January 1991; and

(c)  if a law of this jurisdiction in force at the commencement of this section provides that an order under section 111A may only be made with the consent of the Minister for this jurisdiction - the person who was, when the instrument was made, the Minister for this jurisdiction within the meaning of that law as so in force, consented to the making of the instrument; and

(d)  a notice of the instrument having been made was published in the Gazette.

111H(2)  [Effect of instrument]  

The instrument has effect, and is taken always to have had effect, as an application order duly made under section 111A.

111H(3)  [Compliance with requirements]  

The requirements of this Division are taken to have been complied with in relation to the instrument.

111H(4)  [Effective date]  

The instrument is taken to have taken effect on 1 January 1991.

111H(5)  [Other effects of instrument]  

The effect that the instrument has, or is taken to have had, because of this section does not prejudice any other effect of the instrument, whether under a law corresponding to this section or otherwise.

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History

S 111H inserted by No 110 of 1991, Sch 2 (effective 27 June 1991).

PART 1.4 - TECHNICAL PROVISIONS ABOUT AIDS FOR READERS

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History

Pt 1.4 inserted by No 115 of 1995, Sch 3 (effective 9 December 1995).

SECTION 111J   SMALL BUSINESS GUIDE  

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111J(1)  (Amendment by regulation)  

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The regulations may amend the small business guide in Part 1.5 if the amendments are necessary to reflect the regulations or instruments issued by ASIC under this Law.

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History

S 111J(1) amended by No 54 of 1998, Sch 4, Pt 2 (effective 1 July 1998).

S 111J(1) inserted by No 115 of 1995, Sch 3 (effective 9 December 1995).

111J(2)  [Organisation of guide]  

The small business guide is divided into sections (numbered 1, 2, 3 ...) and the sections are divided into paragraphs (numbered 1.1, 1.2, 1.3 ...). For example, a reference in the guide to 3.1 is a reference to paragraph 3.1 of the guide.

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History

S 111J(2) inserted by No 115 of 1995, Sch 3 (effective 9 December 1995).

PART 1.5 - SMALL BUSINESS GUIDE

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History

Part 1.5 amended by No 156 of 1999, Sch 3, Pt 1 and Pt 7 (effective 13 March 2000).

Part 1.5 amended by No 54 of 1998, Sch 5, Pt 1 and Pt 2 (effective 1 July 1998).

Part 1.5 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

This guide summarises the main rules in the Corporations Law that apply to proprietary companies limited by shares - the most commontype of company used by small business. The guide gives a general overview of the Corporations Law as it applies to those companies and directs readers to the operative provisions in the Law.

The notes in square brackets at the end of paragraphs in the guide indicate the main provisions of the Corporations Law, the regulations made under the Law, and Australian Securities and Investments Commission Practice Notes that are relevant to the information in the paragraphs.

Other Commonwealth, State and Territory laws also impose obligations on proprietary companies and their operators.

1   What registration means  

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1.1  Separate legal entity that has its own powers  

As far as the law is concerned, a company has a separate legal existence that is distinct from that of its owners, managers, operators, employees and agents. A company has its own property, its own rights and its own obligations. A company's money and other assets belong to the company and must be used for the company's purposes.

A company has the powers of an individual, including the powers to:

•  own and dispose of property and other assets

•  enter into contracts

•  sue and be sued.

Once a company is registered, its separate legal status, property, rights and liabilities continue until ASIC (Australian Securities and Investments Commission) deregisters the company.

[sections 119, 124- 125, 601AA- 601AD]

1.2  Limited liability of shareholders  

Shareholders of a company are not liable (in their capacity as shareholders) for the company's debts. As shareholders, their only obligation is to pay the company any amount unpaid on their shares if they are called upon to do so. However, particularly if a shareholder is also a director, this limitation may be affected by other laws and the commercial practices discussed in 1.3 and 1.4.

[section 516]

1.3  Director's liability for company's debts  

A director of a company may be liable for debts incurred by the company at a time when the company itself is unable to pay those debts as they fall due.

A director of a company may be liable to compensate the company for any losses the company suffers from a breach of certain of the director's duties to the company (see 5.3).

In addition to having liability for the company's debts or to pay compensation to the company, a director may also be subject to a civil penalty.

If a company holds property on trust, a director of the company may be liable in some circumstances for liabilities incurred by the company as trustee.

[sections 197, 344, 588G, 588J, 588M, 1317H]

1.4  Director's liability as guarantor/security over personal assets 

As a matter of commercial practice, a bank, trade creditor or anyone else providing finance or credit to a company may ask a director of the company:

•  for a personal guarantee of the company's liabilities; and

•  for some form of security over their house or personal assets to secure the performance by the company of its obligations.

The director of a company may, for example, be asked by a bank to give a mortgage over their house to secure the company's repayment of a loan. If the company does not repay the loan as agreed with the bank, the director may lose the house.

1.5  Continuous existence  

A company continues to exist even if 1 or more of its shareholders or directors sells their shares, dies or leaves the company. If a company has only 1 shareholder who is also the only director of the company and that person dies, their personal representative is able to ensure that the company continues to operate.

[sections 119, 224A]

CCH Note: The legislative note in square brackets [ ] contains a reference to a section that existed prior to the amendments effected by No 156 of 1999.

1.6  Rules for the internal management of a company  

The Law contains a basic set of rules for the internal management of a company (appointments, meetings etc.).

Some of these rules are mandatory for all companies. There are a few special rules for single shareholder/single director companies.

Other internal management rules in the Law are replaceable rules. The replaceable rules do not apply to:

•  a single shareholder/single director company; or

•  a company that had a constitution before the introduction of the replaceable rules regime and has not repealed it.

A company does not need to have a separate constitution of its own; it can simply take advantage of the rules in the Law. The company will need a constitution only if it wants to displace, modify or add to the replaceable rules.

[sections 134- 141, 224B]

CCH Note: The legislative note in square brackets [ ] contains a reference to a section that existed prior to the amendments effected by No 156 of 1999.

1.7  How a company acts  

A company does not have a physical existence. It must act through other people.

Individual directors, the company secretary, company employees or agents may be authorised to enter into contracts that bind the company (see 7).

In some circumstances, a company will be bound by something done by another person (see 1.8).

1.8  Directors  

The directors of a company are responsible for managing the company's business. It is a replaceable rule (see 1.6) that generally the directors may exercise all the powers of the company except a power that the Law, a replaceable rule or a provision of the company's constitution (if any) requires the company to exercise in general meeting.

The only director of a company who is also the only shareholder is responsible for managing the company's business and may exercise all of the company's powers.

The Law sets out rules dealing with the calling and conduct of directors' meetings. Directors must keep a written record (minutes) of their resolutions and meetings.

There are 2 ways that directors may pass resolutions:

•  at a meeting; or

•  by having all of the directors record and sign their decision.

If a company has only 1 director, the sole director may also pass a resolution by recording and signing their decision.

[sections 224B, 226A, 248A- 248G, 251A]

CCH Note: The legislative note in square brackets [ ] contains references to sections that existed prior to the amendments effected by No 156 of 1999.

1.9  Shareholders  

The shareholders of a company own the company, but the company has a separate legal existence and the company's assets belong to the company.

Shareholders can make decisions about the company by passing a resolution, usually at a meeting. A ``special resolution'' usually involves more important questions affecting the company as a whole or the rights of some or all of its shareholders.

There are 2 ways that shareholders may pass a resolution:

•  at a meeting; or

•  by having all of the shareholders record and sign their decision.

If a meeting is held, an ordinary resolution must be passed by a majority of the votes cast by shareholders of the company entitled to vote on the resolution at the meeting in person or by proxy (if proxies are allowed). A special resolution must be passed by at least 75% of the votes cast by shareholders of the company entitled to vote on the resolution and who vote at the meeting in person or by proxy (if proxies are allowed).

The sole shareholder of a company may pass a resolution by recording and signing their decision.

A company must keep a written record (minutes) of the members' resolutions and meetings.

[sections 9 (special resolution), 249A, 249B, 249L, 251A]

1.10  What others can assume about the company  

Anyone who does any business with the company is entitled to assume that the company has a legal right to conduct that business unless the person knows, or suspects, otherwise. For example, an outsider dealing with the company is entitled to assume:

•  that a person who is shown in a notice lodged with ASIC as being the director or company secretary of a company has been properly appointed and is authorised to act for the company; and

•  that a person who is held out by the company to be a director, company secretary or agent of the company has been properly appointed and is authorised to act for the company.

[sections 128- 130]

2   The company structure for small business  

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2.1  Proprietary company for small business  

Generally, a proprietary company limited by shares is the most suitable company for use by small business. Such a proprietary company must have at least 1 shareholder but no more than 50 shareholders (not counting employee shareholders). It may have 1 or more directors.

[sections 112- 113]

3   Setting up a new company  

View history reference

The operators of small businesses can either buy ``shelf'' companies or set up new companies themselves.

3.1  ``Shelf'' companies  

The operator of a small business may find it more convenient to buy a ``shelf'' company (a company that has already been registered but has not traded) from businesses which set up companies for this purpose or from some legal or accounting firms.

3.2  Setting up a company  

To set up a new company themselves, the operator must apply to ASIC for registration of the company.

A proprietary company limited by shares must have at least 1 shareholder.

To obtain registration, a person must lodge a properly completed application form with ASIC. The form must set out certain information including details of every person who has consented to be a shareholder, director or company secretary of the company.

The company comes into existence when ASIC registers it.

[sections 117- 119, 135- 136, 140]

3.3  ACN and name  

When a company is registered, ASIC allocates to it a unique 9 digit number called the Australian Company Number (ACN). (For use of the ACN see 4.1).

In practice, a new company must have a name that is different from the name of a company that is already registered. A proprietary company limited by shares must have the words ``Proprietary Limited'' as part of its name. Those words can be abbreviated to ``Pty Ltd''.

A proprietary company may adopt its ACN as its name. If it does so, its name must also contain the words ``Australian Company Number'' (which can be abbreviated to ``ACN''). For example, the company's name might be ``ACN 123 456 789 Pty Ltd''.

[sections 119, 147- 161]

3.4  Contracts entered into before the company is registered  

A company can ratify a contract entered into by someone on its behalf or for its benefit before it was registered. If the company does not ratify the contract, the person who entered into the contract may be personally liable.

[sections 131- 133]

3.5  First shareholders, directors and company secretary  

A person listed with their consent as a shareholder, director or company secretary in the application for registration of the company becomes a shareholder, director or company secretary of the company on its registration.

The same person may be both a director of the company and the company secretary.

See 5.1 and 5.2 for directors and 5.4 for company secretaries. See 6.1 for shareholders.

[section 120]

3.6  Issuing shares  

It is a replaceable rule (see 1.6) that, before issuing new shares, a company must first offer them to the existing shareholders in the proportions that the shareholders already hold. A company may issue shares at a price it determines.

[sections 254B, 254D]

3.7  Registered office  

A company must have a registered office in Australia and must inform ASIC of the location of the office. A post office box cannot be the registered office of a company. The purpose of the registered office is to have a place where all communications and notices to the company may be sent.

If the company does not occupy the premises where its registered office is located, the occupier of the premises must agree in writing to having the company's registered office located there.

A proprietary company is not required to open its registered office to the public but this does not affect its obligation to make documents available for inspection.

The company must notify ASIC of any change of address of its registered office.

[sections 100, 142, 143, 173, 1300]

3.8  Principal place of business  

If a company has a principal place of business that is different to its registered office, it must notify ASIC of the address of its principal place of business and of any changes to that address.

[sections 117, 146]

3.9  Registers kept by the company  

A company must keep registers, including a register of shareholders and a register of charges. A company must keep its registers at:

•  the company's registered office; or

•  the company's principal place of business; or

•  a place (whether on premises of the company or of someone else) where the work in maintaining the register is done; or

•  another place approved by ASIC.

A register may be kept either in a bound or looseleaf book or on computer.

If a register is kept on computer, its contents must be capable of being printed out in hard copy.

[sections 172, 1300- 1302, 1306]

3.10  Register of shareholders  

A company must keep in its register of shareholders such information as:

•  the names and addresses of its shareholders; and

•  details of shares held by individual shareholders.

[sections 168- 169]

3.11  Register of charges  

A company must keep a register of charges if the company gives a bank, trade creditor or anybody else a charge over company assets.

[section 271]

4   Continuing obligations after the company is set up  

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The Corporations Law and other laws impose obligations on companies themselves and on their directors and company secretaries. Some of the more important obligations imposed under the Corporations Law are discussed below.

4.1 

View history reference

Use of company name and ACN  

The name of a company must be shown at all the company's business premises (including its registered office) that are open to the public. The company's name and its ACN must appear:

•  on some of its public documents; and

•  on its cheques and negotiable instruments; and

•  on all documents lodged with ASIC; and

•  if it has one, on its common seal.

[sections 123, 144, 147- 156, Australian Securities and Investments Commission Practice Note 4715-186]

4.2  Annual return  

A company must lodge with ASIC an annual return which contains such information as:

•  names and addresses of each director and company secretary; and

•  issued shares and options granted; and

•  details of its shareholders; and

•  address of its registered office; and

•  address of its principal place of business; and

•  a statement that the directors have resolved in the last month that, in the directors' opinion, there are reasonable grounds to believe the company will be able to pay its debts as and when they become payable (but if the company has lodged an annual financial report with ASIC within the last 12 months, it does not need to include this statement).

An annual return may be lodged with ASIC on a printed form or, if an agreement is in place to lodge electronically, in accordance with the agreement.

ASIC may send a partially completed annual return to a company that wants to lodge its annual return on a printed form for the company to check, amend if necessary, verify and send back to ASIC. However, a company must lodge an annual return with ASIC even if ASIC does not send a partially completed annual return to the company.

[sections 345- 348, 352]

4.3  Annual fee  

A company must pay an annual fee to ASIC on lodgment of the annual return.

[Corporations (Fees) Regulations]

4.4  Notification to ASIC of changes  

The company must notify ASIC if certain basic changes to the company occur. The following table sets out these notification requirements.

-------------------------------------------------------
Notification requirements                              
-------------------------------------------------------
   If ...        the company     using      see        
                 must notify     Form       section ...
                 ASIC of      No. ...               
                 the change ...                        
-------------------------------------------------------
1. a company     within 1        207        254X       
   issues        month after                           
   shares        the issue                             
                                                       
2. a company     within 7        909        172, 1302  
   changes       days after                            
   the           the change                            
   location                                            
   of a register                                       
                                                       
3. a company     within 14      203         142, 146   
   changes       days after                            
   the address   the change                            
   of its                                              
   registered                                          
   office or                                           
   principal                                           
   place of                                            
   business                                            
                                                       
4. a company     within 14      304         242        
   changes its   days after                            
   directors     the change                            
   or company                                          
   secretary                                           
                                                       
5. there is a    within 14      304         242        
   change in     days after                            
   the name      the change                            
   or address                                          
   of the company's                                    
   directors or                                        
   secretary                                           
                                                       
6. a company     within 45      309         263        
   creates       days after                            
   certain       the charge                            
   kinds of      is created                            
   charges-------------------------------------------------------

      

CCH Note: Item 4 and 5 in the Table above refer to a section, the contents of which were substituted by different subject matter by No 156 of 1999.

5   Company directors and company secretaries  

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5.1  Who can be a director  

Only an individual who is at least 18 years old can be a director. If a company has only 1 director, they must ordinarily reside in Australia. If a company has more than 1 director, at least 1 of the directors must ordinarily reside in Australia.

A director must consent in writing to holding the position of director. The company must keep the consent and must notify ASIC of the appointment.

In some circumstances, the Corporations Law imposes the duties and obligations of a director on a person who, although not formally appointed as a director of a company, nevertheless acts as a director or gives instructions to the formally appointed directors as to how they should act.

The Court or ASIC may prohibit a person from being a director or from otherwise being involved in the management of a company if, for example, the person has breached the Corporations Law.

A person needs the Court's permission to be a director if the person has been convicted of certain offences or is, in some circumstances, unable to pay their debts as they fall due.

Generally, a director may resign by giving notice of the resignation to the company. The company must notify ASIC of a director's resignation. A director who resigns may also notify ASIC of the resignation.

[sections 60, 221, 222A, 224, 228- 230, 242, 242C, 599, 600, 206C, 1317G]

CCH Note: The legislative note in square brackets [ ] contains references to sections that existed prior to the amendments effected by No 156 of 1999.

5.2  Appointment of new directors  

It is a replaceable rule (see 1.6) that shareholders may appoint directors by resolution at a general meeting.

5.3  Duties and liabilities of directors  

In managing the business of a company (see 1.7), each of its directors is subject to a wide range of duties under the Corporations Law and other laws. Some of the more important duties are:

•  to act in good faith

•  to act in the best interests of the company

•  to avoid conflicts between the interests of the company and the director's interests

•  to act honestly

•  to exercise care and diligence

•  to prevent the company trading while it is unable to pay its debts

•  if the company is being wound up - to report to the liquidator on the affairs of the company

•  if the company is being wound up - to help the liquidator (by, for example, giving to the liquidator any records of the company that the director has).

A director who fails to perform their duties:

•  may be guilty of a criminal offence with a penalty of $200,000 or imprisonment for up to 5 years, or both; and

•  may contravene a civil penalty provision (and the Court may order the person to pay to the Commonwealth an amount of up to $200,000); and

•  may be personally liable to compensate the company or others for any loss or damage they suffer; and

•  may be prohibited from managing a company.

A director's obligations may continue even after the company has been deregistered.

[sections 180, 181, 182, 183, 184, 475, 530A, 588G, 596, 601AE, 601AH, 1317H]

5.4  Company secretaries  

A company must have a company secretary. The directors appoint the company secretary. A company secretary must be at least 18 years old. If a company has only 1 company secretary, they must ordinarily reside in Australia. If a company has more than 1 company secretary, at least 1 of them must ordinarily reside in Australia.

A company secretary must consent in writing to holding the position of company secretary. The company must keep the consent and must notify ASIC of the appointment.

The same person may be both a director of a company and the company secretary.

Generally, a company secretary may resign by giving written notice of the resignation to the company. The company must notify ASIC of a company secretary's resignation. A company secretary who resigns may also notify ASIC of the resignation.

The company secretary is an officer of the company and, in that capacity, may be subject to the requirements imposed by the Corporations Law on company officers. The company secretary has specific responsibilities under the Corporations Law, including responsibility for ensuring that the company notifies ASIC about changes to the identities, names and addresses of the company's directors and company secretaries and that the company lodges its annual return.

A company secretary's obligations may continue even after the company has been deregistered.

[sections 83, 142, 222A, 240, 242, 242C, 345, 601AD, 601AH]

CCH Note: The legislative note in square brackets [ ] contains references to sections that existed prior to the amendments effected by No 156 of 1999.

6   Shares and shareholders  

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A proprietary company limited by shares must have a share capital and at least 1 shareholder. ASIC may apply to a Court to have a company wound up if it does not have any shareholders.

[sections 461- 462]

6.1  Becoming a shareholder and ceasing to be a shareholder  

A person may become a shareholder of a company in several ways, including the following:

•  the person being listed as a shareholder of the company in the application for registration of the company

•  the company issuing shares to the person

•  the person buying shares in the company from an existing shareholder and the company registering the transfer.

Some of the ways in which a person ceases to be a shareholder are:

•  the person sells all of their shares in the company and the company registers the transfer of the shares

•  the company buys back all the person's shares

•  ASIC cancels the company's registration.

[sections 117, 120, 601AA- 601AD]

6.2  Classes of shares  

A company may have different classes of shares. The rights and restrictions attached to the shares in a class distinguish it from other classes of shares.

[sections 254A- 254B]

6.3  Meetings of shareholders  

Directors have the power to call meetings of all shareholders or meetings of only those shareholders who hold a particular class of shares.

Shareholders who hold at least 5% of the votes which may be cast at a general meeting of a company have the power to call and hold a meeting themselves or to require the directors to call and hold a meeting. Meetings may be held regularly or to resolve specific questions about the management or business of the company.

The Law sets out rules dealing with shareholders' meetings.

A shareholder of a company may ask the company for a copy of the record of a meeting or of a decision of shareholders taken without a meeting.

[sections 249A- 251B]

6.4 

View history reference

Voting rights  

Different rights to vote at meetings of shareholders may attach to different classes of shares. It is a replaceable rule (see 1.6) that, subject to those different rights, each shareholder has 1 vote on a show of hands and, on a poll, 1 vote for each share held.

[sections 250E, 254A- 254B]

6.5  Buying and selling shares  

A shareholder may sell their shares but only if the sale would not breach the company's constitution (if any). It is a replaceable rule (see 1.6) that the directors have a discretion to refuse to register a transfer of shares.

[sections 1091D- 1091E]

7   Signing company documents  

View history reference

A company's power to sign, discharge and otherwise deal with contracts can be exercised by an individual acting with the company's authority and on its behalf. A company can deal with contracts without using a common seal.

A company may execute a document by having it signed by:

•  2 directors of the company; or

•  a director and the company secretary; or

•  for a company with a sole director who is also the sole secretary - that director.

If the document is to have effect as a deed, it should be expressed to be a deed.

[sections 126- 127, 240]

A company is not required to have a common seal. If it does, the seal must show the company's name and its ACN. The seal is equivalent to the company's signature and may be used on important company documents such as mortgages.

[sections 123, 127(2)]

8   Funding the company's operations  

View history reference

The shareholders may fund the company's operations by lending money to the company or by taking up other shares in the company. Except if it is raising funds from its own employees or shareholders, a proprietary company must not engage in any fundraising activity that would require disclosure to investors under Chapter 6D (for example, advertising in a newspaper inviting people to invest in the company).

The company may also borrow money from banks and other financial organisations.

Anyone who has lent money, or provided credit, to the company may ask for a mortgage or charge over the company's assets to secure the performance by the company of its obligations.

[sections 113, 124]

9   Returns to shareholders  

View history reference

Shareholders can take money out of the company in a number of ways, but only if the company complies with its constitution (if any), the Corporations Law and all other relevant laws. If a company pays out money in a way that results in the company being unable to pay its debts as they fall due, its directors may be liable:

•  to pay compensation; and

•  for criminal and civil penalties.

[sections 588G, 1317H]

9.1  Dividends  

Dividends are payments to shareholders out of the company's after tax profits. It is a replaceable rule (see 1.6) that the directors decide whether the company should pay a dividend.

[sections 254T, 254U]

9.2  Buy-back of shares  

A company can buy back shares from shareholders.

[sections 257A- 257J]

9.3  [Omitted]  

[9.3 intentionally omitted by No 61 of 1998]

9.4  Distribution of surplus assets on winding up  

If a company is wound up and there are any assets left over after all the company's debts have been paid, the surplus is distributed to shareholders in accordance with the rights attaching to their shares.

10   Annual financial reports and audit  

View history reference

10.1  The small/large distinction  

The accounting requirements imposed on a proprietary company under the Corporations Law depend on whether the company is classified as small or large. A company's classification can change from 1 financial year to another as its circumstances change.

A company is classified as small for a financial year if it satisfies at least 2 of the following tests:

•  gross operating revenue of less than $10 million for the year

•  gross assets of less than $5 million at the end of the year

•  fewer than 50 employees at the end of the year.

A company that does not satisfy at least 2 of these tests is classified as large.

[section 45A]

As the great majority of proprietary companies are small under these tests, the discussion below deals mainly with the accounting requirements for small proprietary companies.

[sections 286- 301]

10.2  Financial records  

Under the Corporations Law, all proprietary companies must keep sufficient financial records to record and explain their transactions and financial position and to allow true and fair financial statements to be prepared and audited. Financial record here means some kind of systematic record of the company's financial transactions - not merely a collection of receipts, invoices, bank statements and cheque butts. Financial records may be kept on computer.

[sections 286- 289]

10.3  Preparing annual financial reports and directors' reports  

The Corporations Law requires a small proprietary company to prepare an annual financial report (an annual profit and loss statement, a balance sheet and a statement of cash flows) and a directors' report (about the company's operations, dividends paid or recommended, options issued etc.) if:

•  the shareholders with at least 5% of the votes in the company direct it to do so; or

•  ASIC directs it to do so.

Unless the shareholders' direction specifies otherwise, the company must prepare the annual financial report in accordance with the applicable accounting standards.

Although the Corporations Law itself may not require a small proprietary company to prepare a financial report except in the circumstances mentioned, the company may need to prepare the annual financial reports for the purposes of other laws (for example, income tax laws). Moreover, good business practice may also make it advisable for the company to prepare the financial reports so that it can monitor and better manage its financial position.

Large proprietary companies must prepare annual financial reports and a directors' report, have the financial report audited and send both reports to shareholders. They must also lodge the annual financial reports with ASIC unless exempted.

[sections 286- 301, 319- 320]

11   Disagreements within the company  

View history reference

11.1  Special problems faced by minority shareholders  

There are remedies available to a shareholder of a company if:

•  the affairs of the company are being conducted in a way that is unfair to that shareholder or to other shareholders of the company; or

•  the affairs of the company are being conducted in a way that is against the interests of the company as a whole.

A Court may, for example, order the winding up of a company or the appointment of a receiver.

[sections 246AA, 461]

CCH Note: The legislative note in square brackets [ ] contains a reference to a section that existed prior to the amendments effected by No 156 of 1999.

11.2  Buy-back of shares  

A company may buy back the shares of a shareholder who wants to sever their relationship with the company.

[sections 257A- 257J]

11.3  Selling shares  

A shareholder in a company who wants to sever their relationship with the company may decide to sell their shares. However, the shareholder may not be able to sell their shares readily - particularly if they want to sell their shares to someone who is not an existing shareholder. Some of the difficulties they may face in that case are:

•  under the replaceable rules the directors have a discretion to refuse to transfer the shares; and

•  restrictions in the company's constitution (if any) on transferring shares.

[sections 707, 995, 1091D- 1091E]

12   Companies in financial trouble  

View history reference

12.1  Voluntary administration  

If a company experiences financial problems, the directors may appoint an administrator to take over the operations of the company to see if the company's creditors and the company can work out a solution to the company's problems.

If the company's creditors and the company cannot agree, the company may be wound up (see 12.3).

[Part 5.3A]

12.2  Receivers  

A receiver, or receiver and manager, may be appointed by order of a Court or under an agreement with a secured creditor to take over some or all of the assets of a company. Generally this would occur if the company is in financial difficulty. A receiver may be appointed, for example, because an amount owed to a secured creditor is overdue.

[Part 5.2]

12.3  Winding up and distribution  

A company may be wound up by order of a Court, or voluntarily if the shareholders of the company pass a special resolution to do so.

A liquidator is appointed:

•  when a Court orders a company to be wound up; or

•  the shareholders of a company pass a resolution to wind up the company.

[Part 5.2, section 495]

12.4  Liquidators  

A liquidator is appointed to administer the winding up of a company. The liquidator's main functions are:

•  to take possession of the company's assets; and

•  to determine debts owed by the company and pay the company's creditors; and

•  to distribute to shareholders any assets of the company left over after paying creditors (any distribution to shareholders is made according to the rights attaching to their shares); and

•  finally, to have the company deregistered.

[Parts 5.4B, 5.5]

12.5  Order of payment of debts  

Generally, creditors who hold security over company assets are paid first.

[Division 6 of Part 5.6]

12.6  Cancellation of registration  

If a company has ceased trading or has been wound up, it remains on the register until ASIC cancels the company's registration. Once a company is deregistered, it ceases to exist.

[sections 601AA- 601AB, 601AH]

CHAPTER 2A - REGISTERING A COMPANY

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Ch 2A inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

PART 2A.1 - WHAT COMPANIES CAN BE REGISTERED

SECTION 112   TYPES OF COMPANIES  

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112(1)  Types of companies.  

The following types of companies can be registered under this Law:

+-----------------------+-----------------------------+
| Proprietary companies | Limited by shares           |
|                       +-----------------------------|
|                       | Unlimited with share capital|
|-----------------------+-----------------------------|
| Public companies      | Limited by shares           |
|                       +-----------------------------|
|                       | Limited by guarantee        |
|                       +-----------------------------|
|                       | Unlimited with share capital|
|                       +-----------------------------|
|                       | No liability company        |
+-----------------------+-----------------------------+

      

Note:

Other types of companies that were previously allowed continue to exist under section 1413.

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S 112(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

112(2)  No liability companies.  

A company may be registered as a no liability company only if:

(a)  the company has a share capital; and

(b)  the company's constitution states that its sole objects are mining purposes; and

(c)  the company has no contractual right under its constitution to recover calls made on its shares from a shareholder who fails to pay them.

Note 1:

Section 9 defines mining purposes and minerals .

Note 2:

Special provisions on no liability companies are found in the sections referred to in the following table:

-------------------------------------------------------
No liability company provisions                        
-------------------------------------------------------
item     topic              sections                   
-------------------------------------------------------
1        names              148, 156, 162              
                                                       
2        terms of issue     254B                       
         of shares                                     
                                                       
3        liability on       254M                       
         partly-paid                                   
         shares                                        
                                                       
4        calls              254P-254R                  
                                                       
5        winding up         477-478, 483, 514          
                                                       
6        registering        610BA                      
         a body as                                     
         a company                                     
                                                       
7       transitional        1413                       
-------------------------------------------------------

      

CCH Note: The reference to sec 610BA appears to be a legislative drafting error, and should read sec 601BA.

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S 112(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

112(3)  [Mining purposes]  

A no liability company must not engage in activities that are outside its mining purposes objects.

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S 112(3) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

112(4)  [Letting or contract]  

The directors of a no liability company must not:

(a)  let the whole or proportion of a mine or claim on tribute; or

(b)  make any contract for working any land on tribute;

unless:

(c)  the letting or contract is approved by a special resolution; or

(d)  no such letting or contract has been made within the period of 2 years immediately preceding the proposed letting or contract.

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S 112(4) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

112(5)  [Invalidity]  

An act or transaction is not invalid merely because of a contravention of subsection (3) or (4).

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S 112(5) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 113   PROPRIETARY COMPANIES  

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113(1)  [Limitation of non-employee shareholders]  

A company must have no more than 50 non-employee shareholders if it is to:

(a)  be registered as a proprietary company; or

(b)  change to a proprietary company; or

(c)  remain registered as a proprietary company.

Note:

Proprietary companies have different financial reporting obligations depending on whether they are small proprietary companies or large proprietary companies (see section 45A and Part 2M.3).

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S 113(1) inserted by No 61 of 1998, Sch 2 (effective 1 July 1998).

113(2)  [Application of subsection]  

In applying subsection (1):

(a)  count joint holders of a particular parcel of shares as 1 person; and

(b)  an employee shareholder is:

(i) a shareholder who is an employee of the company or of a subsidiary of the company; or

(ii) a shareholder who was an employee of the company, or of a subsidiary of the company, when they became a shareholder.

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S 113(2) inserted by No 61 of 1998, Sch 2 (effective 1 July 1998).

113(3)  [Share offers]  

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A proprietary company must not engage in any activity that would require disclosure to investors under Chapter 6D, except for an offer of its shares to:

(a)  existing shareholders of the company; or

(b)  employees of the company or of a subsidiary of the company.

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S 113(3) amended by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000).

S 113(3) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 113(3) inserted by No 61 of 1998, Sch 2 (effective 1 July 1998).

113(4)  [Invalidity]  

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An act or transaction is not invalid merely because of a contravention of subsection (3).

Note:

If a proprietary company contravenes this section, ASIC may require it to change to a public company (see section 165).

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S 113(4) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 113(4) inserted by No 61 of 1998, Sch 2 (effective 1 July 1998).

SECTION 114   MINIMUM OF 1 MEMBER  

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114    A company needs to have at least 1 member.

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S 114 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 115   RESTRICTIONS ON SIZE OF PARTNERSHIPS AND ASSOCIATIONS  

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115    A person must not participate in the formation of a partnership or association which has as an object gain for itself or for any of its members and which either:

(a)  has more than 20 members; or

(b)  has more than the number of members it is allowed to have under an application order made by the Minister under Part 1.3;

unless the partnership or association is incorporated or formed under an Australian law.

Note:

For the effect of a contravention of this section, see section 103.

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S 115 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 116   TRADE UNIONS CANNOT BE REGISTERED  

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116    A trade union cannot be registered under this Law.

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S 116 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

PART 2A.2 - HOW A COMPANY IS REGISTERED

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Part 2A.2 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 117   APPLYING FOR REGISTRATION  

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117(1) 

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Lodging application.  

To register a company, a person must lodge an application with ASIC.

Note:

For the types of companies that can be registered, see section 112.

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S 117(1) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 117(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

117(2)  Contents of the application.  

The application must state the following:

(a)  the type of company that is proposed to be registered under the Corporations Law of this jurisdiction

(b)  the company's proposed name (unless the ACN is to be used in its name)

(c)  the name and address of each person who consents to become a member

(d)  the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a director

(e)  the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a company secretary

(f)  the address of each person who consents in writing to become a director or company secretary

(g)  the address of the company's proposed registered office

(h)  for a public company - the proposed opening hours of its registered office (if they are not the standard opening hours)

(j)  the address of the company's proposed principal place of business (if it is not the address of the proposed registered office)

(k)  for a company limited by shares or an unlimited company - the following:

(i) the number and class of shares each member agrees in writing to take up

(ii) the amount (if any) each member agrees in writing to pay for each share

(iii) if that amount is not to be paid in full on registration - the amount (if any) each member agrees in writing to be unpaid on each share

(l)  for a public company that is limited by shares or is an unlimited company, if shares will be issued for non-cash consideration - the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application

(m)  for a company limited by guarantee - the proposed amount of the guarantee that each member agrees to in writing.

Note 1:

Paragraph (b) - sections 147 and 152 deal with the availability and reservation of names.

Note 2:

Paragraph (f) - the address that must be stated is usually the residential address, although an alternative address can sometimes be stated instead (see section 205D).

Note 3:

Paragraph (g) - if the company is not to be the occupier of premises at the address of its registered office, the application must state that the occupier has consented to the address being specified in the application and has not withdrawn that consent (see section 100).

Note 4:

Paragraph (h) - for standard opening hours , see section 9.

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S 117(2) Note 2 amended by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000).

S 117(2) amended by No 61 of 1998, Sch 5 (effective 1 July 1998).

S 117(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

117(3)  [Copy of constitution]  

If the company is to be a public company and is to have a constitution on registration, a copy of the constitution must be lodged with the application.

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S 117(3) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

117(4)  [Prescribed form]  

The application must be in the prescribed form.

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S 117(4) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

117(5)  [Consents and agreements]  

An applicant must have the consents and agreements referred to in subsection (2) when the application is lodged. After the company is registered, the applicant must give the consents and agreements to the company. The company must keep the consents and agreements.

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S 117(5) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 118   ASIC GIVES COMPANY ACN, REGISTERS COMPANY AND ISSUES CERTIFICATE  

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Heading amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

118(1) 

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Registration.  

If an application is lodged under section 117, ASIC may:

(a)  give the company an ACN; and

(b)  register the company; and

(c)  issue a certificate that states:

(i) the company's name; and

(ii) the company's ACN; and

(iii) the company's type; and

(iv) that the company is registered as a company under the Corporations Law of this jurisdiction; and

(v) the date of registration.

Note:

For the evidentiary value of a certificate of registration, see subsection 1274(7A).

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S 118(1) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 118(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

118(2) 

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ASIC must keep record of registration.  

ASIC must keep a record of the registration. Subsections 1274(2) and (5) apply to the record as if it were a document lodged with ASIC.

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S 118(2) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 118(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

118(3)-(5)  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

SECTION 119   COMPANY COMES INTO EXISTENCE ON REGISTRATION  

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119     A company comes into existence as a body corporate at the beginning of the day on which it is registered. The company's name is the name specified in the certificate of registration.

Note:

The company remains in existence until it is deregistered (see Chapter 5A).

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S 119 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 120   MEMBERS, DIRECTORS AND COMPANY SECRETARY OF A COMPANY  

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120(1)  [Consent]  

A person becomes a member, director or company secretary of a company on registration if the person is specified in the application with their consent as a proposed member, director or company secretary of the company.

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S 120(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

120(2)  [Issue of shares]  

The shares to be taken up by the members as specified in the application are taken to be issued to the members on registration of the company.

Note:

A member's name must be entered in the register of members (see section 169).

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S 120(2) amended by No 61 of 1998, Sch 5 (effective 1 July 1998).

S 120(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 121   REGISTERED OFFICE  

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121    The address specified in the application for registration for the company's proposed registered office becomes the address of the company's registered office on registration.

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S 121 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 122   EXPENSES INCURRED IN PROMOTING AND SETTING UP COMPANY  

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122    The expenses incurred before registration in promoting and setting up a company may be paid out of the company's assets.

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S 122 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 123   COMPANY MAY HAVE COMMON SEAL  

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123(1)  [Common seal]  

A company may have a common seal. If a company does have a common seal, the company must set out on it:

(a)  for a company that has its ACN in its name - the company's name; or

(b)  otherwise - the company's name, the expression ``Australian Company Number'' and the company's ACN.

Note 1:

A company may make contracts and execute documents without using a seal (see sections 126 and 127).

Note 2:

For abbreviations that can be used on a seal, see section 149.

123(2)  [Duplicate]  

A company may have a duplicate common seal. The duplicate must be a copy of the common seal with the words ``duplicate seal'', ``share seal'' or ``certificate seal'' added.

123(3)  [Prohibition]  

A person must not use, or authorise the use of, a seal that purports to be the common seal of a company or a duplicate if the seal does not comply with the requirements set out in subsection (1) or (2).

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S 123 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

CHAPTER 2B - BASIC FEATURES OF A COMPANY

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Chapter 2B inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

PART 2B.1 - COMPANY POWERS AND HOW THEY ARE EXERCISED

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Part 2B.1 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 124   LEGAL CAPACITY AND POWERS OF A COMPANY  

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124(1)  (Capacity and powers)  

A company has the legal capacity and powers of an individual both in and outside this jurisdiction. A company also has all the powers of a body corporate, including the power to:

(a)  issue and cancel shares in the company

(b)  issue debentures (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)

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(c)  grant options over unissued shares in the company

(d)  distribute any of the company's property among the members, in kind or otherwise

(e)  give security by charging uncalled capital

(f)  grant a floating charge over the company's property

(g)  arrange for the company to be registered or recognised as a body corporate in any place outside this jurisdiction

(h)  do anything that it is authorised to do by any other law (including a law of a foreign country).

A company limited by guarantee does not have the power to issue shares.

Note:

For a company's power to issue bonus, partly-paid, preference and redeemable preference shares, see section 254A.

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S 124(1) amended by No 156 of 1999, Sch 3, Pt 2 (effective 13 March 2000).

S 124(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

124(2)  (Company's interests)  

A company's legal capacity to do something is not affected by the fact that the company's interests are not, or would not be, served by doing it.

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S 124(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 125   CONSTITUTION MAY LIMIT POWERS AND SET OUT OBJECTS  

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125(1)  (Limitations in constitution)  

If a company has a constitution, it may contain an express restriction on, or a prohibition of, the company's exercise of any of its powers. The exercise of a power by the company is not invalid merely because it is contrary to an express restriction or prohibition in the company's constitution.

125(2)  (Company's objects)  

If a company has a constitution, it may set out the company's objects. An act of the company is not invalid merely because it is contrary to or beyond any objects in the company's constitution.

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S 125 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 126   AGENT EXERCISING A COMPANY'S POWER TO MAKE CONTRACTS  

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126(1)  (Acting on company's behalf)  

A company's power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the company's express or implied authority and on behalf of the company. The power may be exercised without using a common seal.

126(2)  (Non-application)  

This section does not affect the operation of a law that requires a particular procedure to be complied with in relation to the contract.

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S 126 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

S 126 substituted by No 110 of 1990, Sch 1 (effective 18 December 1990).

SECTION 127   EXECUTION OF DOCUMENTS (INCLUDING DEEDS) BY THE COMPANY ITSELF  

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127(1)  (Execution without seal)  

A company may execute a document without using a common seal if the document is signed by:

(a)  2 directors of the company; or

(b)  a director and a company secretary of the company; or

(c)  for a proprietary company that has a sole director who is also the sole company secretary - that director.

Note:

If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company.

127(2)  (Execution with seal)  

A company with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by:

(a)  2 directors of the company; or

(b)  a director and a company secretary of the company; or

(c)  for a proprietary company that has a sole director who is also the sole company secretary - that director.

Note:

If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(6) for dealings in relation to the company.

127(3)  (Execution as a deed)  

A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2).

127(4)  (No limitation)  

This section does not limit the ways in which a company may execute a document (including a deed).

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S 127 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

PART 2B.2 - ASSUMPTIONS PEOPLE DEALING WITH COMPANIES ARE ENTITLED TO MAKE

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Part 2B.2 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 128   ENTITLEMENT TO MAKE ASSUMPTIONS  

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128(1)  (Entitlement)  

A person is entitled to make the assumptions in section 129 in relation to dealings with a company. The company is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

128(2)  (Title to property)  

A person is entitled to make the assumptions in section 129 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired title to property from a company. The company and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

128(3)  (Fraud or forgery)  

The assumptions may be made even if an officer or agent of the company acts fraudulently, or forges a document, in connection with the dealings.

128(4)  (Knowledge or suspicion)  

A person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect.

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S 128 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 129   ASSUMPTIONS THAT CAN BE MADE UNDER SECTION 128  

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129(1)  Constitution and replaceable rules complied with.  

A person may assume that the company's constitution (if any), and any provisions of this Law that apply to the company as replaceable rules, have been complied with.

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S 129(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

129(2) 

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Director or company secretary.  

A person may assume that anyone who appears, from information provided by the company that is available to the public from ASIC, to be a director or a company secretary of the company:

(a)  has been duly appointed; and

(b)  has authority to exercise the powers and perform the duties customarily exercised or performed by a director or company secretary of a similar company.

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S 129(2) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 129(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

129(2A)  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

129(3)  Officer or agent.  

A person may assume that anyone who is held out by the company to be an officer or agent of the company:

(a)  has been duly appointed; and

(b)  has authority to exercise the powers and perform the duties customarily exercised or performed by that kind of officer or agent of a similar company.

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S 129(3) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

129(4)  Proper performance of duties.  

A person may assume that the officers and agents of the company properly perform their duties to the company.

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S 129(4) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

129(5)  Document duly executed without seal.  

A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with subsection 127(1). For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices.

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S 129(5) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

129(6)  Document duly executed with seal.  

A person may assume that a document has been duly executed by the company if:

(a)  the company's common seal appears to have been fixed to the document in accordance with subsection 127(2); and

(b)  the fixing of the common seal appears to have been witnessed in accordance with that subsection.

For the purposes of making the assumption, a person may also assume that anyone who witnesses the fixing of the common seal and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices.

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S 129(6) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

129(7)  Officer or agent with authority to warrant that document is genuine or true copy.  

A person may assume that an officer or agent of the company who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a true copy.

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S 129(7) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

129(8)  [Application of assumptions]  

Without limiting the generality of this section, the assumptions that may be made under this section apply for the purposes of this section.

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S 129(8) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 130   INFORMATION AVAILABLE TO THE PUBLIC FROM ASIC DOES NOT CONSTITUTE CONSTRUCTIVE NOTICE  

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Heading amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

130(1)  [Information available from ASIC]  

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A person is not taken to have information about a company merely because the information is available to the public from ASIC.

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S 130(1) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 130(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

130(2)  [Registrable charge]  

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Subsection (1) does not apply in relation to a document that has been lodged with ASIC to the extent that the document relates to a charge that is registrable under this Law.

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S 130(2) amended by No 54 of 1998, Sch 5, Pt 2 (Effective 1 July 1998).

S 130(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

130(3)  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

PART 2B.3 - CONTRACTS BEFORE REGISTRATION

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Part 2B.3 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 131   CONTRACTS BEFORE REGISTRATION  

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131(1)  (Company bound)  

If a person enters into, or purports to enter into, a contract on behalf of, or for the benefit of, a company before it is registered, the company becomes bound by the contract and entitled to its benefit if the company, or a company that is reasonably identifiable with it, is registered and ratifies the contract:

(a)  within the time agreed to by the parties to the contract; or

(b)  if there is no agreed time - within a reasonable time after the contract is entered into.

131(2)  (Liability for damages)  

The person is liable to pay damages to each other party to the pre-registration contract if the company is not registered, or the company is registered but does not ratify the contract or enter into a substitute for it:

(a)  within the time agreed to by the parties to the contract; or

(b)  if there is no agreed time - within a reasonable time after the contract is entered into.

The amount that the person is liable to pay to a party is the amount the company would be liable to pay to the party if the company had ratified the contract and then did not perform it at all.

131(3)  (Powers of Court)  

If proceedings are brought to recover damages under subsection (2) because the company is registered but does not ratify the pre-registration contract or enter into a substitute for it, the court may do anything that it considers appropriate in the circumstances, including ordering the company to do 1 or more of the following:

(a)  pay all or part of the damages that the person is liable to pay

(b)  transfer property that the company received because of the contract to a party to the contract

(c)  pay an amount to a party to the contract.

131(4)  (Failure to perform contracts)  

If the company ratifies the pre-registration contract but fails to perform all or part of it, the court may order the person to pay all or part of the damages that the company is ordered to pay.

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S 131 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 132   PERSON MAY BE RELEASED FROM LIABILITY BUT IS NOT ENTITLED TO INDEMNITY  

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132(1)  [Release]  

A party to the pre-registration contract may release the person from all or part of their liability under section 131 to the party by signing a release.

132(2)  [Indemnity]  

Despite any rule of law or equity, the person does not have any right of indemnity against the company in respect of the person's liability under this Part. This is so even if the person was acting, or purporting to act, as trustee for the company.

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S 132 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 133   THIS PART REPLACES OTHER RIGHTS AND LIABILITIES  

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133     This Part replaces any rights or liabilities anyone would otherwise have on the pre-registration contract.

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S 133 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

PART 2B.4 - REPLACEABLE RULES AND CONSTITUTION

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Part 2B.4 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 134   INTERNAL MANAGEMENT OF COMPANIES  

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134     A company's internal management may be governed by provisions of this Law that apply to the company as replaceable rules, by a constitution or by a combination of both.

Note:

There are additional rules about internal management in ordinary provisions of this Law and also in the common law.

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S 134 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 135   REPLACEABLE RULES  

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135(1)  Companies to which replaceable rules apply.  

A section or subsection (except subsection 129(1), this section and sections 140 and 141) whose heading contains the words:

(a)  replaceable rule - applies as a replaceable rule to:

(i) each company that is registered after the commencement of this Part; and

(ii) any company registered before that commencement that repeals its constitution after that commencement; and

(b)  replaceable rule for proprietary companies and mandatory rule for public companies - applies:

(i) as a replaceable rule to any proprietary company that is registered after the commencement of this Part; and

(ii) as a replaceable rule to any company that is registered after that commencement and that changes to a proprietary company (but only while it is a proprietary company); and

(iii) as a replaceable rule to any proprietary company registered before that commencement that repeals its constitution after that commencement; and

(iv) as an ordinary provision of this Law to any public company whenever registered.

The section or subsection does not apply to a proprietary company while the same person is both its sole director and sole shareholder.

Note 1:

See sections 198E, 201F and 202C for the special provisions that apply to a proprietary company while the same person is both its sole director and sole shareholder.

Note 2:

A company may include in its constitution (by reference or otherwise) a replaceable rule that does not otherwise apply to it.

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History

S 135(1) Note 1 amended by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000).

S 135(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

135(2)  Company's constitution can displace or modify replaceable rules.  

A provision of a section or subsection that applies to a company as a replaceable rule can be displaced or modified by the company's constitution.

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History

S 135(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

135(3)  Failure to comply with replaceable rules.  

A failure to comply with the replaceable rules as they apply to a company is not of itself a contravention of this Law (so the provisions about criminal liability, civil liability and injunctions do not apply).

Note:

Replaceable rules that apply to a company have effect as a contract (see section 140).

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History

S 135(3) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 136   CONSTITUTION OF A COMPANY  

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136(1)  [Adoption]  

A company adopts a constitution:

(a)  on registration - if each person specified in the application for the company's registration as a person who consents to become a member agrees in writing to the terms of a constitution before the application is lodged; or

(b)  after registration - if the company passes a special resolution adopting a constitution or a court order is made under section 233 that requires the company to adopt the constitution.

Note 1:

The memorandum and articles of a company immediately before the commencement of this Part are taken together to make up the company's constitution after commencement (see section 1414).

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CCH Note: The reference to sec 1414 in Note 1 appears to be a drafting error and should read sec 1415.

Note 2:

The Life Insurance Act 1995 has rules about how benefit fund rules become part of a company's constitution and about amending those rules. They override this Law. Consequential amendments to the rest of the company's constitution can be made under that Act or this Law. See Subdivision 2 of Division 4 of Part 2A of that Act.

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History

S 136(1) amended by No 156 of 1999, Sch 3, Pt 5 (effective 13 March 2000).

S 136(1) Note 2 inserted by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).

S 136(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

136(2)  [Modification or repeal]  

The company may modify or repeal its constitution, or a provision of its constitution, by special resolution.

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)).

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S 136(2) Note inserted by No 156 of 1999, Sch 3, Pt 5 (effective 13 March 2000).

S 136(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

136(3)  [Further requirement]  

The company's constitution may provide that the special resolution does not have any effect unless a further requirement specified in the constitution relating to that modification or repeal has been complied with.

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History

S 136(3) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

136(4)  [Modification or repeal of further requirement]  

Unless the constitution provides otherwise, the company may modify or repeal a further requirement described in subsection (3) only if the further requirement is itself complied with.

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History

S 136(4) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

136(5)  [Public company]  

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A public company must lodge with ASIC a copy of a special resolution adopting, modifying or repealing its constitution within 14 days after it is passed. The company must also lodge with ASIC within that period:

(a)  if the company adopts a constitution - a copy of that constitution; or

(b)  if the company modifies its constitution - a copy of that modification.

This also applies to a proprietary company that has applied under Part 2B.7 to change to a public company, while its application has not yet been determined.

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History

S 136(5) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 136(5) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 137   DATE OF EFFECT OF ADOPTION, MODIFICATION OR REPEAL OF CONSTITUTION  

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137    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.

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S 137 substituted by No 156 of 1999, Sch 3, Pt 5 (effective 13 March 2000).

SECTION 138   ASIC MAY DIRECT COMPANY TO LODGE CONSOLIDATED CONSTITUTION  

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138     ASIC may direct a company to lodge a consolidated copy of its constitution with ASIC.

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S 138 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 138 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 139   COMPANY MUST SEND COPY OF CONSTITUTION TO MEMBER  

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139     A company must send a copy of its constitution to a member of the company within 7 days if the member:

(a)  asks the company, in writing, for the copy; and

(b)  pays any fee (up to the prescribed amount) required by the company.

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History

S 139 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 140   EFFECT OF CONSTITUTION AND REPLACEABLE RULES  

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140(1)  [Contract]  

A company's constitution (if any) and any replaceable rules that apply to the company have effect as a contract:

(a)  between the company and each member; and

(b)  between the company and each director and company secretary; and

(c)  between a member and each other member;

under which each person agrees to observe and perform the constitution and rules so far as they apply to that person.

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History

S 140(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

140(2)  [Modification of constitution]  

Unless a member of a company agrees in writing to be bound, they are not bound by a modification of the constitution made after the date on which they became a member so far as the modification:

(a)  requires the member to take up additional shares; or

(b)  increases the member's liability to contribute to the share capital of, or otherwise to pay money to, the company; or

(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.

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S 140(2) amended by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000).

SECTION 141   TABLE OF REPLACEABLE RULES  

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CCH Note: No 156 of 1999 made amendments to the sec 141 Table (effective 13 March 2000). These amendments have resulted in the Table (which lists the replaceable rules) not corresponding with the replaceable rules. It appears that there has been confusion concerning items in the Table and that the Table of replaceable rules should be as indicated over.

Please refer to the provisions listed, which identify them as replaceable rules.

141     The following table sets out the provisions of this Law that apply as replaceable rules.

----------------------------------------------------------
CCH list of provisions that apply as replaceable rules    
----------------------------------------------------------

Directors
                                                  
Material interests -- directors of                
proprietary companies                         194 
Company may appoint a director                201G
Directors may appoint other directors         201H
Alternate directors                           201K
Powers of directors                           198A
Executing negotiable instruments              198B
Managing director                             198C, 201J, 203F
(Repealed)                                        
Proprietary company may remove director       203C
Director may resign by giving written         203A
  notice to company
Remuneration of directors                     202A
----------------------------------------------------------
Directors' meetings
                                                     
Circulating resolutions                       248A
Calling directors' meetings                   248C
Chairing directors' meetings                  248E
Quorum at directors' meetings                 248F
Passing of directors' resolutions             248G
----------------------------------------------------------
Meetings of members

Calling of meetings of members by a director  249C
Notice to joint members                       249J(2)
When notice by post or fax is given           249J(4)
Notice of adjourned meetings                  249M
Quorum                                        249T
Chairing meetings of members                  249U
Business at adjourned meetings                249W(2)
Who can appoint a proxy                       249X
[replaceable rule for proprietary companies only]
Proxy vote valid even if member dies,         250C(2)
  revokes appointment etc.
How many votes a member has                   250E
Jointly held shares                           250F
Objection to right to vote                    250G
How voting is carried out                     250J
When and how polls must be taken              250M
----------------------------------------------------------
Company secretary

Terms of office determined by directors       204F
----------------------------------------------------------
Inspection of books

Company or directors may allow member to      247D
  inspect books
----------------------------------------------------------
Shares

Pre-emption for existing shareholders on      254D
  issue of shares in proprietary company 
Other provisions about paying dividends       254U
Dividend rights for shares in proprietary     254W(2)
  companies
---------------------------------------------------------
Transfer of shares

Transmission of shares on death               1091AA
Transmission of shares on bankruptcy          1091AB
Transmission of shares on mental incapacity   1091B
Registration of transfers                     1091D
Additional general discretion for directors   1091E
  of proprietary companies to refuse to
  register transfers
---------------------------------------------------------
Share capital

(Omitted)                                            
---------------------------------------------------------

      

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S 141 amended by No 156 of 1999, Sch 3, Pt 3 (effective 13 March 2000).

S 141 amended by No 61 of 1998, Sch 5 (effective 1 July 1998).

S 141 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

PART 2B.5 - REGISTERED OFFICE AND PLACES OF BUSINESS

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Part 2B.5 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 142   REGISTERED OFFICE  

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142(1)  [Registered office]  

A company must have a registered office in Australia. Communications and notices to the company may be addressed to its registered office.

Note:

A document may be served on a company by leaving it at, or posting it to, the company's registered office (see subsection 109X(1)).

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S 142(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

142(2)  [Change of address]  

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A company must lodge notice of a change of address of its registered office with ASIC not later than 14 days after the date on which the change occurs. The notice must be in the prescribed form.

Note:

If the company is not to be the occupier of premises at the address of its new registered office, the notice must state that the occupier has consented to the address being specified in the notice and has not withdrawn that consent (see section 100).

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S 142(2) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 142(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

142(3)  [Notice to take effect]  

A notice of change of address takes effect from the later of:

(a)  the 7th day after the notice was lodged; or

(b)  a later day specified in the notice as the date from which the change is to take effect.

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S 142(3) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 143   ASIC MAY CHANGE ADDRESS OF REGISTERED OFFICE TO A DIRECTOR'S ADDRESS  

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143(1)  [Written consent]  

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A company that does not occupy the premises at the address of its registered office must be able to show to ASIC the occupier's written consent to the company's use of those premises as its registered office.

Note:

ASIC can require the company to produce the consent (see section 100).

143(2)  [No consent or consent withdrawn]  

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If ASIC becomes aware that the occupier of those premises:

(a)  has not consented to the use of the premises as the address of the company's registered office; or

(b)  has withdrawn the consent;

ASIC may give written notice to a director of the company who resides in Australia that ASIC intends to change the address of the company's registered office to the director's address.

143(3)  [ASIC not notified]  

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If ASIC is not notified of the address of the company's proposed new registered office under subsection 142(2) within 14 days after the notice under subsection (2) is sent, ASIC may change the address of the company's registered office to the director's address.

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S 143 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 143 substituted by No 61 of 1998, Sch 1 and Sch 5 (effective 1 July 1998).

SECTION 144   COMPANY'S NAME MUST BE DISPLAYED AT REGISTERED OFFICE ETC  

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144(1)  [Display name]  

A company must display its name prominently at every place at which the company carries on business and that is open to the public.

144(2)  [Public company]  

A public company must also display its name and the words ``Registered Office'' prominently at its registered office.

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S 144 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 145   OPENING HOURS OF REGISTERED OFFICE OF PUBLIC COMPANY  

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145(1)  [Opening hours]  

The registered office of a public company must be open to the public:

(a)  each business day from at least 10 am to 12 noon and from at least 2 pm to 4 pm; or

(b)  at least 3 hours chosen by the company between 9 am and 5 pm each business day.

145(2)  [Hours to be specified]  

If the company chooses its own opening hours, the hours must be specified:

(a)  if the company is to have its own opening hours from its registration - in the application for registration of the company under section 117; or

(b)  if the company changes its opening hours after its registration - in the most recent notice of change of opening hours lodged with ASIC under subsection (3).

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145(3)  [Lodgment with ASIC]  

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The company must lodge notice of a change in the opening hours of its registered office with ASIC before the day on which a change occurs. The notice must be in the prescribed form.

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S 145 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 145 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 146   CHANGE OF ADDRESS OF PRINCIPAL PLACE OF BUSINESS  

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146     A company must lodge with ASIC notice of a change of the address of its principal place of business not later than 14 days after the date on which the change occurs. The notice must be in the prescribed form.

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S 146 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 146 substituted by No 61 of 1998, Sch 1 and Sch 5 (effective 1 July 1998).

PART 2B.6 - NAMES

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Part 2B.6 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

Division 1 - Selecting and using a name

SECTION 147   WHEN A NAME IS AVAILABLE  

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147(1)  Name is available unless identical or unacceptable.  

A name is available to a company unless the name is:

(a)  identical (under rules set out in the regulations) to a name that is reserved or registered under this Law for another body; or

(b)  identical (under rules set out in the regulations) to a name that is included on the national business names register in respect of another individual or body who is not the person applying to have the name; or

(c)  unacceptable for registration under the regulations.

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S 147(1) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

147(2)  Minister may consent to a name being available to a company.  

The Minister may consent in writing to a name being available to a company even if the name is:

(a)  identical to a name that is reserved or registered under this Law for another body; or

(b)  unacceptable for registration under the regulations.

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S 147(2) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

147(3)  (Conditions)  

The Minister's consent may be given subject to conditions.

Note:

If the company breaches a condition, ASIC may direct it to change its name under section 158.

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S 147(3) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 147(3) substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

147(4)  (Unacceptable name available)  

The regulations may specify that a particular unacceptable name is available to a company if:

(a)  a specified public authority, or an instrumentality or agency of the Crown in right of the Commonwealth, a State or the Capital Territory has consented to the company using or assuming the name; or

(b)  the company is otherwise permitted to use or assume the name by or under:

(i) an Act of the Commonwealth, a State or the Capital Territory; or

(ii) a specified provision of an Act of the Commonwealth, a State or the Capital Territory.

The consent of the authority, instrumentality or agency may be given subject to conditions.

Note:

If the consent is withdrawn, the company ceases to be permitted or the company breaches a condition, ASIC may direct it to change its name under section 158.

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S 147(4) inserted by No 44 of 1999, Sch 3, Pt 2 (effective 17 June 1999).

SECTION 147A   EFFECT OF REGISTRATION OF COMPANY UNDER CORPORATIONS LAW OF ANOTHER JURISDICTION  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

SECTION 148   A COMPANY'S NAME  

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148(1)  Company may use available name or ACN.  

A company may have as its name:

(a)  an available name; or

(b)  the expression ``Australian Company Number'' followed by the company's ACN.

The name must also include the words required by subsection (2) or (3).

148(2)  Limited companies.  

A limited public company must have the word ``Limited'' at the end of its name unless section 150 or 151 applies. A limited proprietary company must have the words ``Proprietary Limited'' at the end of its name.

148(3)  Unlimited proprietary companies.  

An unlimited proprietary company must have the word ``Proprietary'' at the end of its name.

148(4)  No liability companies.  

A no liability company must have the words ``No Liability'' at the end of its name.

148(5)  Public companies with ``Proprietary'' included in their name.  

A public company must not include the word ``Proprietary'' (or an abbreviation of it) in its name unless:

(a)  it was a public company before the commencement of this section; and

(b)  the word ``Proprietary'' (or an abbreviation of it) was included in its name before that commencement.

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S 148 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 149   ACCEPTABLE ABBREVIATIONS  

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149(1)  [Table of abbreviations]  

The abbreviations set out in the following table may be used:

(a)  instead of words that this Law requires to be part of a company's name or to be included in a document or on a company's common seal; and

(b)  instead of words that are part of a company's name; and

(c)  with or without full stops.

--------------------------------------------------------
Acceptable abbreviations               [operative table]
--------------------------------------------------------
    Word                        Abbreviation
--------------------------------------------------------
1   Company                     Co or Coy
2   Proprietary                 Pty
3   Limited                     Ltd
4   No Liability                NL
5   Australian                  Aust
6   Number                      No
7   and                         &
8   Australian Company Number   ACN
--------------------------------------------------------

      

149(2)  [Word may be used]  

If a company's name includes any of these abbreviations, the word corresponding to the abbreviation may be used instead.

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S 149 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 149A   EFFECT OF CERTIFICATE ISSUED UNDER PREVIOUS LAW  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

SECTION 150   EXCEPTION TO REQUIREMENT FOR USING ``LIMITED'' IN NAME  

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150(1)  [Companies limited by guarantee]  

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ASIC may register a company limited by guarantee without ``Limited'' in its name, or alter the registration of a company of that type by omitting ``Limited'' from its name, if its constitution:

(a)  requires the company to pursue charitable purposes only and to apply its income in promoting those purposes; and

(b)  prohibits the company making distributions to its members and paying fees to its directors; and

(c)  requires the directors to approve all other payments the company makes to directors.

150(2)  [Notify ASIC]  

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The company must notify ASIC as soon as practicable if any of those requirements or prohibitions in its constitution are not complied with or if its constitution is modified to remove any of those requirements or prohibitions.

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S 150 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 150 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 151   EXCEPTION TO REQUIREMENT FOR USING ``LIMITED'' IN NAME - PRE-EXISTING LICENCES  

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151(1)  [Licence in force]  

A licence in force immediately before the commencement of this section that allowed a company to omit ``Limited'' from its name continues in force subject to subsection (3).

151(2)  [Notify ASIC]  

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The company must notify ASIC as soon as practicable if it:

(a)  breaches a condition of the licence; or

(b)  pursues objects or purposes that would have prevented it being granted the licence; or

(c)  applies its profits or other income to promote objects or purposes that would have prevented it being granted the licence; or

(d)  pays a dividend to its members; or

(e)  modifies its constitution to allow it to do anything set out in paragraphs (a) to (d).

151(3)  [Revocation]  

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ASIC may revoke the company's licence if the company does anything set out in paragraphs (2)(a) to (e).

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S 151 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 151 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 152   RESERVING A NAME  

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152(1)  [Application to reserve]  

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A person may lodge an application in the prescribed form with ASIC to reserve a name for a company. If the name is available, ASIC must reserve it.

Note:

For available names, see section 147.

152(2)  [Length of reservation]  

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The reservation lasts for 2 months from the date when the application was lodged. An applicant may ask ASIC in writing for an extension of the reservation during a period that the name is reserved, and ASIC may extend the reservation for 2 months.

152(3)  [Cancellation]  

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ASIC must cancel a reservation if the applicant asks ASIC in writing to do so.

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S 152 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 152 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 153   USING A NAME AND ACN ON DOCUMENTS  

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153(1)  [Name]  

A company must set out its name on all its public documents and negotiable instruments.

153(2)  [ACN]  

Subject to sections 154 and 155, if the company's ACN is not used in its name, the company must also set out with its name, or with 1 of the references to its name, the expression ``Australian Company Number'' followed by its ACN. If the company's name appears on 2 or more pages of the document or instrument, this must be done on the first of those pages.

Note 1:

If a company has a common seal, its name and ACN must be set out on the seal (see section 123).

Note 2:

A public company must display its name at its registered office. Every company must display its name at places at which the company carries on business and that are open to the public (see section 144).

Note 3:

Section 149 provides that ``ACN'' is an acceptable abbreviation of ``Australian Company Number''.

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S 153 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 154   EXCEPTION TO REQUIREMENT TO HAVE ACN ON RECEIPTS  

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154     A company does not have to set out the expression ``Australian Company Number'' followed by its ACN on a receipt (for example, a cash register receipt) that sets out information recorded in the machine that produced the receipt.

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S 154 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 155   REGULATIONS MAY EXEMPT FROM REQUIREMENT TO SET OUT INFORMATION ON DOCUMENTS  

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155     The regulations may exempt a specified company, or a class of companies, from the requirement in subsection 153(2) to set out information on its public documents and negotiable instruments. The exemption may relate to specified documents or instruments, or a class of documents or instruments.

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S 155 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 156   CARRYING ON BUSINESS USING ``LIMITED'', ``NO LIABILITY'' OR ``PROPRIETARY'' IN NAME  

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156    A person must not carry on business under a name or title that:

(a)  has the words ``Limited'' or ``No Liability'' (or an abbreviation of those words) at the end; or

(b)  includes the word ``Proprietary'' (or an abbreviation of it);

unless allowed or required to do so under an Australian law.

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S 156 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

Division 2 - Changing a company's name

SECTION 157   COMPANY CHANGING ITS NAME  

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157(1)  (Special resolution and application)  

If a company wants to change its name, it must:

(a)  pass a special resolution adopting a new name; and

(b)  lodge an application in the prescribed form with ASIC.

Note:

The company may reserve a name before the resolution is passed or the application is lodged (see section 152).

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157(2)  (Lodgment with ASIC)  

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The company must lodge a copy of the special resolution with ASIC within 14 days after it is passed.

157(3)  (Change of name)  

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If the proposed name is available, ASIC must change the company's name by altering the details of the company's registration to reflect the change. The change of name takes effect when ASIC alters the details of the company's registration.

Note:

For available names, see section 147.

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History

S 157 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 157 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 158   ASIC'S POWER TO DIRECT COMPANY TO CHANGE ITS NAME  

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History

Heading amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

158(1)  (Direction to change name)  

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ASIC may direct a company in writing to change its name within 2 months if:

(a)  the name should not have been registered; or

(b)  the company has breached a condition under subsection 147(3) on the availability of the name; or

(c)  a consent given under subsection 147(4) to use or assume the name has been withdrawn; or

(d)  the company has breached a condition on a consent given under subsection 147(4); or

(e)  the company ceases to be permitted to use or assume the name (as referred to in paragraph 147(4)(b)).

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History

S 158(1) amended by No 44 of 1999, Sch 3, Pt 2 (effective 17 June 1999).

S 158(1) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 158(1) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

158(2)  [Compliance]  

The company must comply with the direction within 2 months after being given it by doing everything necessary to change its name under section 157.

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History

S 158(2) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

158(3)  [Non-compliance]  

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If the company does not comply with subsection (2), ASIC may change the company's name to its ACN and any other words that section 148 requires, by altering the details of the company's registration to reflect the change.

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History

S 158(3) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 158(3) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

158(4)  [Effect]  

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A change of name under subsection (3) takes effect when ASIC alters the details of the company's registration.

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History

S 158(4) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 158(4) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 159   ASIC'S POWER TO INCLUDE ``LIMITED'' IN COMPANY'S NAME  

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159(1)  [ASIC may change]  

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ASIC may change a company's name so that it includes the word ``Limited'' by altering the details of the company's registration to reflect the change if:

(a)  the company contravenes any of the requirements or prohibitions in its constitution referred to in subsection 150(1); or

(b)  the company modifies its constitution to remove any of those requirements or prohibitions; or

(c)  ASIC revokes a licence referred to in section 151 that applies to the company.

159(2)  [Effect]  

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The change of name takes effect when ASIC alters the details of the company's registration.

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History

S 159 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 159 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 160   ASIC MUST ISSUE NEW CERTIFICATE IF COMPANY'S NAME CHANGES  

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160     If ASIC changes a company's name, it must give the company a new certificate of registration. The company's new name is the name specified in the certificate of registration issued under this section.

Note:

For the evidentiary value of a certificate of registration, see subsection 1274(7A).

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History

S 160 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 160 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 161   EFFECT OF NAME CHANGE  

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161(1)  [Effect of change of name]  

A change of company name does not:

(a)  create a new legal entity; or

(b)  affect the company's existing property, rights or obligations; or

(c)  render defective any legal proceedings by or against the company.

161(2)  [Legal proceedings]  

Any legal proceedings that could have been continued or begun by or against the company in its former name may be continued or begun by or against it in its new name.

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History

S 161 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

PART 2B.7 - CHANGING COMPANY TYPE

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Part 2B.7 inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 162   CHANGING COMPANY TYPE  

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162(1)  (Change of type)  

A company may change to a company of a different type as set out in the following table by:

(a)  passing a special resolution resolving to change its type; and

(b)  complying with sections 163 and 164.

------------------------------------------------------------------
Allowed conversions                              [operative table]
------------------------------------------------------------------
This type of company may change ...    ... to this type of company
------------------------------------------------------------------
1  proprietary company limited       unlimited proprietary company
   by shares
                                     unlimited public company

                                     public company limited by
                                     shares
-----------------------------------------------------------------
2  unlimited proprietary company     proprietary company limited
                                     by  shares (but only if,
                                     within the last 3 years, it
                                     was not a limited company
                                     that became an unlimited
                                     company)

                                     public company limited by
                                     shares (but only if, within
                                     the last 3 years, it was not
                                     a limited company that
                                     became an unlimited company)

                                     unlimited public company
-----------------------------------------------------------------
3  public company limited by shares  unlimited public company

                                     unlimited proprietary
                                     company

                                     proprietary company limited
                                     by shares

                                     no liability company (see
                                     subsection (2))
-----------------------------------------------------------------
4  company limited by guarantee      public company limited by
                                     shares

                                     unlimited public company

                                     proprietary company limited
                                     by shares

                                     unlimited proprietary company
-----------------------------------------------------------------
5  unlimited public company          public company limited by
                                     shares (but only if, within
                                     the last 3 years, it was not
                                     a limited company that became
                                     an unlimited company)

                                     proprietary company limited by
                                     shares (but only if, within the
                                     last 3 years, it was not a
                                     limited company that became an
                                     unlimited company)

                                     unlimited proprietary company
-----------------------------------------------------------------
6  public no liability company       public company limited by
                                     shares (but only if all the
                                     issued shares are fully paid
                                     up)

                                     proprietary company limited
                                     by shares (but only if all
                                     the issued shares are fully
                                     paid up)
-----------------------------------------------------------------


      

Note 1:

A public company seeking to change to a proprietary company must comply with the requirements for proprietary companies set out in section 113.

Note 2:

Other types of companies that were previously allowed can change type under section 1416.

162(2)  [Public company limited by shares]  

A public company limited by shares may only convert to a no liability company if:

(a)  the company's constitution states that its sole objects are mining purposes; and

(b)  under the constitution the company has no contractual right to recover calls made on its shares from a shareholder who fails to pay them; and

(c)  all the company's issued shares are fully paid up.

Note:

Section 9 defines mining purposes and minerals .

162(3)  [Lodgment with ASIC]  

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The company must lodge a copy of the special resolution with ASIC within 14 days after it is passed.

162(4)  [Call if becomes externally administered]  

A special resolution to change an unlimited company that has share capital to a company limited by shares may also provide that a specific portion of its uncalled share capital may only be called up if the company becomes an externally-administered body corporate.

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History

S 162 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 162 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 163   APPLYING FOR CHANGE OF TYPE  

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163(1) 

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Lodging application.  

To change its type, a company must lodge an application with ASIC.

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S 163(1) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 163(1) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

163(2)  Contents of the application.  

The application must be accompanied by the following:

(a)  a copy of:

(i) the special resolution that resolves to change the type of the company, specifies the new type and the company's new name (if a change of name is necessary); and

(ii) any other special resolution passed in connection with the change of type

(b)  for a company limited by guarantee changing to a company limited by shares:

(i) a statement signed by the directors of the company that in their opinion the company's creditors are not likely to be materially prejudiced by the change of type and that sets out their reasons for that opinion; and

(ii) any special resolution dealing with an issue of shares according to section 167

(c)  for a company limited by shares or a company limited by guarantee changing to an unlimited company:

(i) an assent to the change of type in the prescribed form signed by all the members of the company; and

(ii) a statement signed by a director or a company secretary of the company that all the members of the company have signed the assent

(d)  for a proprietary company changing to a public company:

(i) a consolidated copy of the company's constitution (if any) as at the date of lodgment; and

(ii) a copy of each document (including an agreement or consent) or resolution that is necessary to ascertain the rights attached to issued or unissued shares of the company.

Note 1:

The company must lodge a copy of any special resolution modifying its constitution passed after the application is lodged (see subsection 136(5)).

Note 2:

The company must lodge information relating to any change of rights attached to its shares, or any division or conversion of its shares into new classes, occurring after the application is lodged (see section 246F).

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S 163(2) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

163(3)  Company limited by guarantee to company limited by shares.  

If shares will be issued to persons under paragraph 166(2)(c) on the change of type from a company limited by guarantee to a company limited by shares, the application must state:

(a)  that the company has prepared a list that sets out the following details about each person to whom the shares will be issued:

(i) name and address

(ii) the number and class of shares the person will take up

(iii) the amount (if any) the person will pay for the shares

(iv) the amount (if any) that will be unpaid on the shares; and

(b)  the number and class of shares those persons will take up; and

(c)  the amount (if any) those persons will pay for the shares; and

(ca)  the amount (if any) that will be unpaid on those shares; and

(d)  if the shares will be issued for non-cash consideration - the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application; and

(e)  that each of those persons who is not a member of the company when the application is made consents in writing to the inclusion in the list of the details about them that are referred to in paragraph (a).

The shares may be issued to existing members only, to new members only or to existing and new members.

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).

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History

S 163(3) (Note) substituted by No 156 of 1999, Sch 3, Pt 1 (effective 13 March 2000).

S 163(3) amended by No 61 of 1998, Sch 5 (effective 1 July 1998).

S 163(3) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

163(4)  [Prescribed form]  

The application must be in the prescribed form.

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S 163(4) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

163(5)  [Consents]  

The company must have the consents referred to in paragraph (3)(e) (if any) when the application is lodged. The company must keep the consents.

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S 163(5) inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 164   ASIC CHANGES TYPE OF COMPANY  

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164(1)  [Notice]  

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ASIC must give notice under subsection (3) that it intends to alter the details of the company's registration if:

(a)  ASIC is satisfied that:

(i) the application complies with section 163; and

(ii) for an application by a company limited by guarantee to change to a company limited by shares - the company's creditors are not likely to be materially prejudiced by the change; and

(b)  for an application by a company limited by guarantee to change to a company limited by shares that is accompanied by a copy of a special resolution dealing with an issue of shares according to section 167 - ASIC is not of the opinion that the obligations that would attach to the shares are unreasonable compared with the obligations that attach to membership of the company limited by guarantee.

164(2)  [ASIC direction]  

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To make a decision under subparagraph (1)(a)(ii), ASIC may direct the company in writing to:

(a)  notify some or all of its creditors of the proposed change in the way ASIC specifies; and

(b)  invite those creditors to make submissions to ASIC.

164(3)  [Publication of notice]  

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The notice that ASIC intends to alter the details of the company's registration must be:

(a)  included on ASIC database; and

(b)  published in the Gazette.

The notice must also state that ASIC will alter the details of the company's registration 1 month after the notice has been published in the Gazette unless an order by a court or the Administrative Appeals Tribunal prevents it from doing so.

164(4)  [Alteration of details]  

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Subject to an order made by a court or the Administrative Appeals Tribunal within that month, after that month has passed ASIC must alter the details of the company's registration to reflect the company's new type.

164(5)  [Effect]  

A change of type under this section takes effect when ASIC alters the details of the company's registration. Despite subsection 246D(3) and section 246E, a special resolution passed in connection with the change of type also takes effect when ASIC alters the details of the company's registration.

164(6)  [Certificate of registration]  

ASIC must give the company a new certificate of registration after it alters the details of the company's registration. The company's name is the name specified in the certificate of registration issued under this section.

Note:

For the evidentiary value of a certificate of registration, see subsection 1274(7A).

164(7)  [Court not to make order]  

If ASIC alters the details of a company's registration under subsection (4), a court is not to make an order reversing the alteration of the details of the company's registration.

Note:

The Administrative Appeals Tribunal cannot review the change of the company's type once ASIC has issued a new certificate of registration to the company (see subsection 1274(7A) and paragraph 1317C(b)).

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History

S 164 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 164 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 165   ASIC MAY DIRECT A PROPRIETARY COMPANY TO CHANGE TO A PUBLIC COMPANY IN CERTAIN CIRCUMSTANCES  

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165(1)  [ASIC direction]  

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ASIC may direct a proprietary company in writing to change to a public company within 2 months if it is satisfied that the company has contravened section 113 (requirements for proprietary companies).

165(2)  [Compliance with direction]  

The company must comply with the direction within 2 months after being given it by doing everything necessary to change to a public company under section 164.

165(3)  [Non-compliance]  

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If a proprietary company does not comply with subsection (2), ASIC may change the company from a proprietary to a public company by altering the details of the company's registration to reflect the company's new type.

165(4)  [Effect]  

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A change of type under this section takes effect when ASIC alters the details of the company's registration.

165(5)  [Certificate of registration]  

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ASIC must give the company a new certificate of registration after it alters the details of the company's registration under subsection (3). The company's name is the name specified in the certificate of registration issued under this section.

Note:

For the evidentiary value of a certificate of registration, see subsection 1274(7A).

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S 165 amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 165 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 166   EFFECT OF CHANGE OF TYPE  

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166(1)  [Effect of change]  

A change of type does not:

(a)  create a new legal entity; or

(b)  affect the company's existing property, rights or obligations (except as against the members of the company in their capacity as members); or

(c)  render defective any legal proceedings by or against the company or its members.

166(2)  [Company limited by guarantee]  

On the change of type of a company from a company limited by guarantee to a company limited by shares:

(a)  the liability of each member and past member as a guarantor on the winding up of the company is extinguished; and

(b)  the members cease to be members of the company; and

(c)  if shares are to be issued to a person as specified in the list referred to in subsection 163(3):

(i) the shares are taken to be issued to that person; and

(ii) the person is taken to have consented to be a member of the company; and

(iii) the person becomes a member of the company.

Note:

The company must maintain a register of members that complies with subsection 169(3).

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S 166 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 166A   RECOGNITION OF COMPANIES FROM OTHER JURISDICTIONS  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

SECTION 167   ISSUE OF SHARES BY COMPANY OR HOLDING COMPANY - COMPANY LIMITED BY GUARANTEE CHANGING TO COMPANY LIMITED BY SHARES  

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167(1)  [Members]  

If:

(a)  a company limited by guarantee changes type under this Part to a company limited by shares; and

(b)  that company, or another company that beneficially owns all the shares in that company, issues shares to a person who was a member of that company immediately before the change of type took effect;

the person becomes a member of the company issuing the shares if:

(c)  the issue of the shares is in accordance with the special resolution that accompanied the application to change type under subparagraph 163(2)(a)(ii); and

(d)  the shares are fully paid up; and

(e)  the business, assets and liabilities of the issuing company (together with its subsidiaries) when the shares are issued are substantially the same as the business, assets and liabilities of the company changing type (together with its subsidiaries) immediately before the change of type took effect.

167(2)  [Court not to make order]  

If shares are issued according to this section, a court is not to make an order reversing the issue of the shares.

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S 167 substituted by No 61 of 1998, Sch 1 (effective 1 July 1998).

CHAPTER 2C - REGISTERS

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Chapter 2C inserted by No 61 of 1998, Sch 1 (effective 1 July 1998).

SECTION 167A   WHO IS COVERED BY THIS CHAPTER  

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167A(1)  (Who is covered)  

This Chapter covers:

(a)  all companies; and

(b)  all registered schemes.

167A(2)  (Responsible entity)  

A registered scheme's responsible entity:

(a)  must perform the obligations imposed under this Chapter in respect of the scheme; and

(b)  may exercise the powers given by this Chapter in respect of the scheme.

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S 167A inserted by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

SECTION 168   REGISTERS TO BE MAINTAINED  

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168(1)  (Registers)  

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A company or registered scheme must set up and maintain:

(a)  a register of members (see section 169); and

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(b)  if the company or scheme grants options over unissued shares or interests - a register of option holders and copies of options documents (see section 170); and

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(c)  if the company issues debentures - a register of debenture holders (see section 171).

Note 1:

See also section 271 (register of charges).

Note 2:

The registers may be kept on computer (see section 1306).

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S 168(1) (Note 1) substituted by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000).

S 168(1) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 168(1) renumbered from 216A(1) and amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

168(2)  [Certain documents are debentures]  

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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.

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S 168(2) substituted by No 156 of 1999, Sch 3, Pt 2 (effective 13 March 2000).

168(3)-(5)  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

SECTION 169   REGISTER OF MEMBERS  

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169(1)  General requirements.  

The register of members must contain the following information about each member:

(a)  the member's name and address

(b)  the date on which the entry of the member's name in the register is made.

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S 169(1) renumbered from s 216B(1) by No 61 of 1998, Sch 3 (effective 1 July 1998).

169(2) 

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Index to register.  

If the company or scheme has more than 50 members, the company or scheme must include in the register an up-to-date index of members' names. The index must be convenient to use and allow a member's entry in the register to be readily found. A separate index need not be included if the register itself is kept in a form that operates effectively as an index.

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S 169(2) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 169(2) renumbered from s 216B(2) by No 61 of 1998, Sch 3 (effective 1 July 1998).

169(3)  Companies with share capital.  

If the company has a share capital, the register must also show:

(a)  the date on which every allotment of shares takes place; and

(b)  the number of shares in each allotment; and

(c)  the shares held by each member; and

(d)  the class of shares; and

(e)  the share numbers (if any), or share certificate numbers (if any), of the shares; and

(f)  the amount unpaid on the shares (if any).

Note 1:

Transfers of shares are entered in the register under section 1092. Section 1091C deals with the registration of trustees etc. on the death, incapacity or bankruptcy of the shareholder.

Note 2:

For the treatment of joint holders see subsection (8).

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S 169(3) amended by No 61 of 1998, Sch 2, Pt 3 (effective 1 July 1998).

S 169(3) renumbered from s 216B(3) by No 61 of 1998, Sch 3 (effective 1 July 1998).

169(4)  [Amount unpaid]  

The register does not have to show the amount unpaid on the shares (see paragraph (1)(f)) if:

(a)  all of the company's shares were issued before Schedule 2 of the Company Law Review Act 1997 commenced; and

(b)  the register continues to show the par values of the shares as they were immediately before that commencement.

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S 169(4) substituted by No 61 of 1998, Sch 2, Pt 3 (effective 1 July 1998).

S 169(4) renumbered from s 216B(4) by No 61 of 1998, Sch 3 (effective 1 July 1998).

*169(5)  [Amount unpaid]  

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The register does not have to show the amount unpaid on the shares (see paragraph (1)(f)) if:

(a)  all of the company's shares were issued before Schedule 5 of the Company Law Review Act 1998 commenced; and

(b)  the register continues to show amount of unpaid par value for the shares as they were immediately before that commencement.

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S 169(5) inserted by No 61 of 1998, Sch 5 (effective 1 July 1998).

*CCH Note: No 61 of 1998 added subsection (5) after subsection (4) without repealing existing subsection (5). The new sec 169(5) is reproduced below.

*169(5) 

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Non-beneficial ownership - companies other than listed companies.  

The register of a company that:

(a)  has a share capital; and

(b)  is not a listed company;

must indicate any shares that a member does not hold beneficially.

Note:

See also section 1096A (in particular, subsection 1096A(9) which contains relevant presumptions about beneficial ownership).

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History

S 169(5) amended by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000).

S 169(5) amended by No 61 of 1998, Sch 2, Pt 3 (effective 1 July 1998).

*CCH Note: No 61 of 1998 added subsection (5) after subsection (4) without repealing existing subsection (5). Amendments made to sec 169(5) after the commencement of No 61 of 1998 have been made to the new sec 169(5) reproduced immediately above this note.

S 169(5) renumbered from s 216B(5) by No 61 of 1998, Sch 3 (effective 1 July 1998).

169(6)  [How beneficial ownership to be decided]  

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In deciding for the purposes of subsection (5) whether a member holds shares beneficially or non-beneficially, the company is to have regard only to information in notices given to the company under section 1096A, 672B or 672C.

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S 169(6) amended by No 156 of 1999, Sch 3, Pt 9 (effective 13 March 2000).

S 169(6) renumbered from s 216B(6) by No 61 of 1998, Sch 3 (effective 1 July 1998).

169(6A) 

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Registered schemes.  

The register of a registered scheme must also show:

(a)  the date on which every issue of interests takes place; and

(b)  the number of interests in each issue; and

(c)  the interests held by each member; and

(d)  the class of interests; and

(e)  the amount paid, or agreed to be considered as paid, on the interests.

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S 169(6A) inserted by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

169(7) 

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Former members.  

A register of members must also show:

(a)  the name and details of each person who stopped being a member of the company or scheme within the last 7 years; and

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(b)  the date on which the person stopped being a member.

The company or scheme may keep these entries separately from the rest of the register.

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S 169(7) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 169(7) renumbered from s 216B(7) by No 61 of 1998, Sch 3 (effective 1 July 1998).

169(8) 

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Joint holders.  

For the purposes of this section:

(a)  2 or more persons who jointly hold shares in the company or interests in the scheme are taken to be a single member of the company or scheme in relation to those shares or interests; and

(b)  2 or more persons who have given a guarantee jointly are taken to be a single member of the company.

They may also be members of the company or scheme because of shares or interests that they hold, or a guarantee that they have given, in their own right or jointly with others.

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S 169(8) substituted by No 44 of 1999, Sch 3, Pt 2 (effective 1 July 1999).

SECTION 170   REGISTER OF OPTION HOLDERS AND COPIES OF OPTIONS DOCUMENTS  

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170(1)  [Information to be contained in register]  

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The register of option holders must contain the following information about each holder of options over unissued shares in the company or unissued interests in the scheme:

(a)  the option holder's name and address

(b)  the date on which the entry of the option holder's name in the register is made

(c)  the date of grant of the options

(d)  the number and description of the shares or interests over which the options were granted

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(e)  either:

(i) the period during which the options may be exercised; or

(ii) the time at which the options may be exercised

(f)  any event that must happen before the options can be exercised

(g)  any consideration for the grant of the options

(h)  any consideration for the exercise of the options or the method by which that consideration is to be determined.

Because it is a register of the holders of options that are still exercisable, the register must be updated whenever options are exercised or expire.

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S 170(1) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 170(1) renumbered from s 216C(1) by No 61 of 1998, Sch 3 (effective 1 July 1998).

170(2)  [Time limits]  

Information about the grant of an option must be entered in the register within 14 days after the grant of the option.

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History

S 170(2) renumbered from s 216C(2) by No 61 of 1998, Sch 3 (effective 1 July 1998).

170(3) 

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Copies of options documents.  

The company or scheme must keep with the register a copy of every document that grants an option over unissued shares or interests unless the option has been granted official quotation by a securities exchange.

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History

S 170(3) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 170(3) renumbered from s 216C(3) by No 61 of 1998,Sch 3 (effective 1 July 1998).

170(4)  [Written notice]  

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The company or scheme must change the register to reflect the transfer of an option only if the person transferring the option gives the company or scheme written notice of the transfer.

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History

S 170(4) substituted by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

170(5)  [Option unaffected by failure to comply]  

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A failure to comply with this section in relation to an option does not affect the option itself.

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History

S 170(5) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 170(5) renumbered from s 216C(5) by No 61 of 1998, Sch 3 (effective 1 July 1998).

SECTION 170A   ASC MAY DETERMINE THAT A PROPRIETARY COMPANY IS A PUBLIC COMPANY IN CERTAIN CIRCUMSTANCES  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

SECTION 171   REGISTER OF DEBENTURE HOLDERS  

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171(1)  [Information to be contained in register]  

The register of debenture holders must contain the following information about each holder of a debenture:

(a)  the debenture holder's name and address

(b)  the amount of the debentures held.

Note:

See subsection 168(2) for the coverage of ``debenture''.

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History

S 171(1) renumbered from s 216D(1) and Note amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

171(2)  [Debenture unaffected by failure to comply]  

A company's failure to comply with this section in relation to a debenture does not affect the debenture itself.

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History

S 171(2) renumbered from s 216D(2) by No 61 of 1998, Sch 3 (effective 1 July 1998).

171(3)-(13)  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

SECTION 172   LOCATION OF REGISTERS  

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172(1)  [Where register to be kept]  

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A register kept under this Chapter that relates to a company must be kept at:

(a)  the company's registered office; or

(b)  the company's principal place of business in Australia; or

(c)  a place in Australia (whether of the company or of someone else) where the work involved in maintaining the register is done; or

(d)  another place in Australia approved by ASIC.

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History

S 172(1) amended by No 156 of 1999, Sch 8 (effective 1 July 1998).

S 172(1) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 172(1) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 172(1) renumbered from s 216E(1) by No 61 of 1998, Sch 3 (effective 1 July 1998).

172(1A)  [Place where register to be kept]  

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A register kept under this Chapter that relates to a registered scheme must be kept at:

(a)  the responsible entity's registered office; or

(b)  an office at the responsible entity's principal place of business; or

(c)  an office (whether of the responsible entity or of someone else) where the work involved in maintaining the register is done; or

(d)  another office approved by ASIC.

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The office must be in Australia.

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History

S 172(1A) amended by No 156 of 1999, Sch 8 (effective 1 July 1998).

S 172(1A) amended by No 54 of 1998, Sch 6, Pt 4 (effective 1 July 1998).

S 172(1A) inserted by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

172(2) 

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Notice to ASIC.  

The company or scheme 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 registered office, nor at the principal place of business, of the company or responsible entity; or

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(b)  moved from one place to another.

Notice is not required for moving the register between the registered office and the principal place of business.

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History

S 172(2) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 172(2) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 172(2) amended by No 61 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 172(2) renumbered from s 216E(2) by No 61 of 1998, Sch 3 (effective 1 July 1998).

SECTION 173   RIGHT TO INSPECT AND GET COPIES  

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173(1) 

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Right to inspect.  

A company or registered scheme must allow anyone to inspect a register kept under this Chapter. If the register is not kept on a computer, the person inspects the register itself. If the register is kept on a computer, the person inspects a hard copy of the information on the register unless the person and the company or the responsible entity agree that the person can access the information by computer.

Note:

Other provisions that are relevant to the inspection of registers are:

•  section 1300 (place and times for inspection)

•  section 1301 (the location of documents that are kept on computers)

•  section 1306 (form and evidentiary value).

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History

S 173(1) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 173(1) amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

S 173(1) renumbered from 216F(1) by No 61 of 1998, Sch 3 (effective 1 July 1998).

173(2) 

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Inspection fees.  

A member of a company or a registered scheme, a registered option holder or a registered debenture holder may inspect a register kept under this Chapter without charge. Other people may inspect the register only on payment of any fee (up to the prescribed amount) required by the company or scheme.

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History

S 173(2) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 173(2) amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

S 173(2) renumbered from 216F(2) by No 61 of 1998, Sch 3 (effective 1 July 1998).

173(3) 

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Right to get copies.  

The company or scheme must give a person a copy of the register (or a part of the register) within 7 days if the person:

(a)  asks for the copy; and

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(b)  pays any fee (up to the prescribed amount) required by the company or scheme.

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ASIC may allow a longer period to comply with the request. If the register is kept on a computer and the person asks for the data on floppy disk, the company or scheme must give the data to the person on floppy disk. The data must be readable but the floppy disk need not be formatted for the person's preferred operating system.

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History

S 173(3) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 173(3) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 173(3) renumbered from 216F(3) by No 61 of 1998, Sch 3 (effective 1 July 1998).

173(4)  [Inspection of options documents]  

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A person has the same rights to inspect, and obtain copies of, the documents kept under subsection 170(3) as the person has in respect of the register of option holders itself.

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History

S 174(4) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 174(4) amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

S 173(4) renumbered from 216F(4) by No 61 of 1998, Sch 3 (effective 1 July 1998).

173(5)  [Share certificate numbers]  

The company is not required under subsection (1) or (3) to allow a person to see, or to give a person a copy that contains, share certificate numbers.

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History

S 173(5) renumbered from 216F(5) by No 61 of 1998, Sch 3 (effective 1 July 1998).

173(6) 

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ASIC power in relation to register of debenture holders.  

ASIC may exempt a company from complying with subsections (1) and (3) in relation to information in a register of debenture holders about debentures that are not convertible into shares or options over unissued shares.

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History

S 173(6) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 173(6) renumbered from 216F(6) by No 61 of 1998, Sch 3 (effective 1July 1998).

173(7)  [Form of exemption]  

The exemption:

(a)  must be in writing; and

(b)  may be general or limited; and

(c)  may be subject to conditions specified in the exemption.

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History

S 173(7) renumbered from 216F(7) by No 61 of 1998, Sch 3 (effective 1 July 1998).

173(8)  [Gazette]  

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ASIC must publish a copy of the exemption in the Gazette.

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History

S 173(8) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 173(8) renumbered from 216F(8) by No 61 of 1998, Sch 3 (effective 1 July 1998).

173(9)  [Contravention of condition]  

A person must not contravene a condition of the exemption.

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History

S 173(9) renumbered from 216F(9) by No 61 of 1998, Sch 3 (effective 1 July 1998).

173(10)  [Court may order compliance with condition]  

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On application by ASIC, the Court may order a person who contravenes a condition of the exemption to comply with the condition.

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History

S 173(10) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 173(10) renumbered from 216F(10) by No 61 of 1998, Sch 3 (effective 1 July 1998).

SECTION 174   AGENT'S OBLIGATIONS  

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174    A person who agrees to maintain a register on behalf of a company or registered scheme for the purposes of this Chapter must:

(a)  make the register available for inspection under this Chapter; and

(b)  provide the copies required by this Chapter.

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History

S 174 amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 174 renumbered from s 216G and amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

SECTION 175   CORRECTION OF REGISTERS  

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175(1)  [Application to Court]  

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A company or registered scheme or a person aggrieved may apply to the Court to have a register kept by the company or scheme under this Part corrected.

CCH Note: The reference to ``this Part'' was inserted by No 62 of 1998, Sch 2, Pt 1, although presumably ``this Chapter'' was intended.

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History

S 175(1) substituted by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

175(2)  [Compensation]  

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If the Court orders the company or scheme to correct the register, it may also order the company or scheme to compensate a party to the application for loss or damage suffered.

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History

S 175(2) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 175(2) renumbered from s 216H(2) by No 61 of 1998, Sch 3 (effective 1 July 1998).

175(3)  [Notification of correction to ASIC]  

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If:

(a)  the Court orders a company or scheme to correct its register of members; and

(b)  the company or scheme has lodged a list of its members with ASIC;

the company or scheme must lodge notice of the correction with ASIC.

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History

S 175(3) amended by No 54 of 1998, Sch 5, Pt 2 (effective 1 July 1998).

S 175(3) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 175(3) renumbered from s 216H(3) by No 61 of 1998, Sch 3 (effective 1 July 1998) .

175(4)  (Repealed by No 61 of 1998, Sch 1 (effective 1 July 1998).)

SECTION 176   EVIDENTIARY VALUE OF REGISTERS  

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176    In the absence of evidence to the contrary, a register kept under this Chapter is proof of the matters shown in the register under this Chapter.

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History

S 176 renumbered from s 216I and amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

SECTION 177   USE OF INFORMATION ON REGISTERS  

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177(1)  [Prohibited uses]  

A person must not:

(a)  use information about a person obtained from a register kept under this Chapter to contact or send material to the person; or

(b)  disclose information of that kind knowing that the information is likely to be used to contact or send material to the person;

unless that use or disclosure of the information is:

(c)  relevant to the holding of the interests recorded in the register or the exercise of the rights attaching to them; or

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(d)  approved by the company or scheme.

Note:

An example of using information to send material to a person is putting a person's name and address on a mailing list for advertising material.

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CCH Note: S 216J(1)(c) (now s 177(1)(c)) was replaced by No 61 of 1998, Sch 2. The replaced (c) had read ``relevant to the holding of the shares, options or debentures concerned or the exercise of the rights attaching to them''. As detailed in the History , the new section was then renumbered to s 177(1)(c). No 62 of 1998, Sch 2, Pt 1, purported to amend this section by inserting ``interests'' after ``the shares''. As the words ``the shares'' do not appear in the current s 177(1)(c), this amendment could not be made.

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History

S 177(1) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 177(1) renumbered from s 216J(1) and amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

177(2)  [Compensation]  

A person who contravenes subsection (1) is liable to compensate anyone else who suffers loss or damage because of the contravention.

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History

S 177(2) renumbered from s 216J(2) by No 61 of 1998, Sch 3 (effective 1 July 1998).

177(3)  [Profit is debt to company]  

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A person who makes a profit from a contravention of subsection (1) owes a debt to the company or the scheme. The amount of the debt is the amount of the profit.

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History

S 177(3) amended by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

S 177(3) renumbered from s 216J(3) by No 61 of 1998, Sch 3 (effective 1 July 1998).

177(4)  [Recovery of debt]  

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If a person owes a debt under subsection (3) to the scheme:

(a)  the debt may be recovered by the responsible entity as a debt due to it; and

(b)  any amount paid or recovered in respect of the debt forms part of the scheme property.

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History

S 177(4) inserted by No 62 of 1998, Sch 2, Pt 1 (effective 1 July 1998).

SECTION 178   OVERSEAS BRANCH REGISTERS  

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178(1)  [Optional overseas register]  

A company may keep a branch register of members at a place outside Australia.

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History

S 178(1) renumbered from s 216K(2) by No 61 of 1998, Sch 3 (effective 1 July 1998).

178(2)  [Requirements where branch register kept]  

If a company keeps an overseas branch register under subsection (1):

(a)  the company must keep the branch register in the same manner as this Law requires the company to keep the register kept under section 169 (the ``principal register'' ); and

(b)  the company must enter in the principal register the details contained in the branch register; and

(c)  the company must distinguish shares that are registered in the branch register from the shares registered in the principal register.

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History

S 178(2) renumbered from s 216K(2) and amended by No 61 of 1998, Sch 3 (effective 1 July 1998).

CHAPTER 2D - OFFICERS AND EMPLOYEES

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History

Chapter 2D substituted by No 156 of 1999, Sch 1 (effective 13 March 2000).

PART 2D.1 - DUTIES AND POWERS

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History

Part 2D.1 substituted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 179   BACKGROUND TO DUTIES OF DIRECTORS, OTHER OFFICERS AND EMPLOYEES  

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179(1)  [Duties]  

This Part sets out some of the most significant duties of directors, secretaries, other officers and employees of corporations. Other duties are imposed by other provisions of this Law and other laws (including the general law).

179(2)  [Definition of director and officer]  

Section 9 defines both director and officer . Officer includes, as well as directors and secretaries, some other people who manage the corporation or its property (such as receivers and liquidators).

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S 179 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

Division 1 - General duties

SECTION 180   CARE AND DILIGENCE - CIVIL OBLIGATION ONLY  

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180(1)  Care and diligence - directors and other officers.  

A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they:

(a)  were a director or officer of a corporation in the corporation's circumstances; and

(b)  occupied the office held by, and had the same responsibilities within the corporation as, the director or officer.

Note:

This subsection is a civil penalty provision (see section 1317E).

180(2)  Business judgment rule.  

A director or other officer of a corporation who makes a business judgment is taken to meet the requirements of subsection (1), and their equivalent duties at common law and in equity, in respect of the judgment if they:

(a)  make the judgment in good faith for a proper purpose; and

(b)  do not have a material personal interest in the subject matter of the judgment; and

(c)  inform themselves about the subject matter of the judgment to the extent they reasonably believe to be appropriate; and

(d)  rationally believe that the judgment is in the best interests of the corporation.

The director's or officer's belief that the judgment is in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in their position would hold.

Note:

This subsection only operates in relation to duties under this section and their equivalent duties at common law or in equity (including the duty of care that arises under the common law principles governing liability for negligence) - it does not operate in relation to duties under any other provision of this Law or under any other laws.

180(3)  (Definition of business judgment)  

In this section:

business judgment means any decision to take or not take action in respect of a matter relevant to the business operations of the corporation.

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History

S 180 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 181   GOOD FAITH - CIVIL OBLIGATIONS  

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181(1)  Good faith - directors and other officers.  

A director or other officer of a corporation must exercise their powers and discharge their duties:

(a)  in good faith in the best interests of the corporation; and

(b)  for a proper purpose.

Note 1:

This subsection is a civil penalty provision (see section 1317E).

Note 2:

Section 187 deals with the situation of directors of wholly-owned subsidiaries.

181(2)  [Involvement]  

A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1:

Section 79 defines involved .

Note 2: This subsection is a civil penalty provision (see section 1317E).

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History

S 181 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 182   USE OF POSITION - CIVIL OBLIGATIONS  

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182(1)  Use of position - directors, other officers and employees.  

A director, secretary, other officer or employee of a corporation must not improperly use their position to:

(a)  gain an advantage for themselves or someone else; or

(b)  cause detriment to the corporation.

Note:

This subsection is a civil penalty provision (see section 1317E).

182(2)  [Involvement]  

A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1:

Section 79 defines involved .

Note 2: This subsection is a civil penalty provision (see section 1317E).

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History

S 182 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 183   USE OF INFORMATION - CIVIL OBLIGATIONS  

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183(1)  Use of information - directors, other officers and employees.  

A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to:

(a)  gain an advantage for themselves or someone else; or

(b)  cause detriment to the corporation.

Note 1:

This duty continues after the person stops being an officer or employee of the corporation.

Note 2: This subsection is a civil penalty provision (see section 1317E).

183(2)  [Involvement]  

A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1:

Section 79 defines involved .

Note 2: This subsection is a civil penalty provision (see section 1317E).

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History

S 183 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 184   GOOD FAITH, USE OF POSITION AND USE OF INFORMATION - CRIMINAL OFFENCES  

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184(1)  Good faith - directors and other officers.  

A director or other officer of a corporation commits an offence if they:

(a)  are reckless; or

(b)  are intentionally dishonest;

and fail to exercise their powers and discharge their duties:

(c)  in good faith in the best interests of the corporation; or

(d)  for a proper purpose.

Note:

Section 187 deals with the situation of directors of wholly-owned subsidiaries.

184(2)  Use of position - directors, other officers and employees.  

A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:

(a)  with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or

(b)  recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.

184(3)  Use of information - directors, other officers and employees.  

A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly:

(a)  with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or

(b)  recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.

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History

S 184 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 185   INTERACTION OF SECTIONS 180 TO 184 WITH OTHER LAWS ETC  

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185     Sections 180 to 184:

(a)  have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and

(b)  do not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph (a).

This section does not apply to subsections 180(2) and (3) to the extent to which they operate on the duties at common law and in equity that are equivalent to the requirements of subsection 180(1).

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History

S 185 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 186   TERRITORIAL APPLICATION OF SECTIONS 180 TO 184  

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186     Sections 180 to 184 do not apply to an act or omission by a director or other officer or employee of a foreign company unless the act or omission occurred in connection with:

(a)  the foreign company carrying on business in Australia; or

(b)  an act that the foreign company does, or proposes to do, in Australia; or

(c)  a decision by the foreign company whether or not to do, or refrain from doing, an act in Australia.

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History

S 186 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 187   DIRECTORS OF WHOLLY-OWNED SUBSIDIARIES  

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187     A director of a corporation that is a wholly-owned subsidiary of a body corporate is to be taken to act in good faith in the best interests of the subsidiary if:

(a)  the constitution of the subsidiary expressly authorises the director to act in the best interests of the holding company; and

(b)  the director acts in good faith in the best interests of the holding company; and

(c)  the subsidiary is not insolvent at the time the director acts and does not become insolvent because of the director's act.

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S 187 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 188   RESPONSIBILITY OF SECRETARIES AND DIRECTORS FOR CERTAIN CONTRAVENTIONS  

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188(1)  Secretary's functions.  

A secretary of a company contravenes this subsection if the company contravenes:

(a)  section 142 (requirement for companies to have registered office); or

(b)  section 145 (requirement for registered office of public company to be open to public); or

(c)  section 345 (annual returns); or

(d)  section 205B (lodgment of notices with ASIC).

Note:

See section 203C for the circumstances in which a company must have a secretary.

188(2)  Consequence if director of proprietary company without secretary does not fulfil secretary's function.  

Each director of a proprietary company contravenes this subsection if:

(a)  the proprietary company contravenes section 142, 145, 205B or 345; and

(b)  the proprietary company does not have a secretary when it contravenes that section.

188(3)  Defence.  

A person does not contravene subsection (1) or (2) if they show that they took all reasonable steps to ensure that the company complied with the section.

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History

S 188 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 189   RELIANCE ON INFORMATION OR ADVICE PROVIDED BY OTHERS  

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189     If:

(a)  a director relies on information, or professional or expert advice, given or prepared by:

(i) an employee of the corporation whom the director believes on reasonable grounds to be reliable and competent in relation to the matters concerned; or

(ii) a professional adviser or expert in relation to matters that the director believes on reasonable grounds to be within the person's professional or expert competence; or

(iii) another director or officer in relation to matters within the director's or officer's authority; or

(iv) a committee of directors on which the director did not serve in relation to matters within the committee's authority; and

(b)  the reliance was made:

(i) in good faith; and

(ii) after making an independent assessment of the information or advice, having regard to the director's knowledge of the corporation and the complexity of the structure and operations of the corporation; and

(c)  the reasonableness of the director's reliance on the information or advice arises in proceedings brought to determine whether a director has performed a duty under this Part or an equivalent general law duty;

the director's reliance on the information or advice is taken to be reasonable unless the contrary is proved.

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History

S 189 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 190   RESPONSIBILITY FOR ACTIONS OF DELEGATE  

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190(1)  [Delegation by director]  

If the directors delegate a power under section 198D, a director is responsible for the exercise of the power by the delegate as if the power had been exercised by the directors themselves.

190(2)  [Director not responsible in certain circumstances]  

A director is not responsible under subsection (1) if:

(a)  the director believed on reasonable grounds at all times that the delegate would exercise the power in conformity with the duties imposed on directors of the company by this Law and the company's constitution (if any); and

(b)  the director believed:

(i) on reasonable grounds; and

(ii) in good faith; and

(iii) after making proper inquiry if the circumstances indicated the need for inquiry;

that the delegate was reliable and competent in relation to the power delegated.

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History

S 190 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

Division 2 - Disclosure of, and voting on matters involving, material personal interests

SECTION 191   MATERIAL PERSONAL INTEREST - DIRECTOR'S DUTY TO DISCLOSE  

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191(1)  Director's duty to notify other directors of material personal interest when conflict arises.  

A director of a company who has a material personal interest in a matter that relates to the affairs of the company must give the other directors notice of the interest unless subsection (2) says otherwise.

191(2)  (Notice not required in certain circumstances)  

The director does not need to give notice of an interest under subsection (1) if:

(a)  the interest:

(i) arises because the director is a member of the company and is held in common with the other members of the company; or

(ii) arises in relation to the director's remuneration as a director of the company; or

(iii) relates to a contract the company is proposing to enter into that is subject to approval by the members and will not impose any obligation on the company if it is not approved by the members; or

(iv) arises merely because the director is a guarantor or has given an indemnity or security for all or part of a loan (or proposed loan) to the company; or

(v) arises merely because the director has a right of subrogation in relation to a guarantee or indemnity referred to in subparagraph (iv); or

(vi) relates to a contract that insures, or would insure, the director against liabilities the director incurs as an officer of the company (but only if the contract does not make the company or a related body corporate the insurer); or

(vii) relates to any payment by the company or a related body corporate in respect of an indemnity permitted under section 199A or any contract relating to such an indemnity; or

(viii) is in a contract, or proposed contract, with, or for the benefit of, or on behalf of, a related body corporate and arises merely because the director is a director of the related body corporate; or

(b)  the company is a proprietary company and the other directors are aware of the nature and extent of the interest and its relation to the affairs of the company; or

(c)  all the following conditions are satisfied:

(i) the director has already given notice of the nature and extent of the interest and its relation to the affairs of the company under subsection (1)

(ii) if a person who was not a director of the company at the time when the notice under subsection (1) was given is appointed as a director of the company - the notice is given to that person

(iii) the nature or extent of the interest has not materially increased above that disclosed in the notice; or

(d)  the director has given a standing notice of the nature and extent of the interest under section 192 and the notice is still effective in relation to the interest.

Note:

Subparagraph (c)(ii) - the notice may be given to the person referred to in this subparagraph by someone other than the director to whose interests it relates (for example, by the secretary).

191(3)  (Details of notice)  

The notice required by subsection (1) must:

(a)  give details of:

(i) the nature and extent of the interest; and

(ii) the relation of the interest to the affairs of the company; and

(b)  be given at a directors' meeting as soon as practicable after the director becomes aware of their interest in the matter.

The details must be recorded in the minutes of the meeting.

191(4)  Effect of contravention by director.  

A contravention of this section by a director does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

191(5)  Section does not apply to single director proprietary company.  

This section does not apply to a proprietary company that has only 1 director.

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History

S 191 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 192   DIRECTOR MAY GIVE OTHER DIRECTORS STANDING NOTICE ABOUT AN INTEREST  

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192(1)  Power to give notice.  

A director of a company who has an interest in a matter may give the other directors standing notice of the nature and extent of the interest in the matter in accordance with subsection (2). The notice may be given at any time and whether or not the matter relates to the affairs of the company at the time the notice is given.

Note:

The standing notice may be given to the other directors before the interest becomes a material personal interest.

192(2)  (Details of notice)  

The notice under subsection (1) must:

(a)  give details of the nature and extent of the interest; and

(b)  be given:

(i) at a directors' meeting (either orally or in writing); or

(ii) to the other directors individually in writing.

The standing notice is given under subparagraph (b)(ii) when it has been given to every director.

192(3)  Standing notice must be tabled at meeting if given to directors individually.  

If the standing notice is given to the other directors individually in writing, it must be tabled at the next directors' meeting after it is given.

192(4)  Nature and extent of interest must be recorded in minutes.  

The director must ensure that the nature and extent of the interest disclosed in the standing notice is recorded in the minutes of the meeting at which the standing notice is given or tabled.

192(5)  Dates of effect and expiry of standing notice.  

The standing notice:

(a)  takes effect as soon as it is given; and

(b)  ceases to have effect if a person who was not a director of the company at the time when the notice was given is appointed as a director of the company.

A standing notice that ceases to have effect under paragraph (b) commences to have effect again if it is given to the person referred to in that paragraph.

Note:

The notice may be given to the person referred to in paragraph (b) by someone other than the director to whose interests it relates (for example, by the secretary).

192(6)  Effect of material increase in nature or extent of interest.  

The standing notice ceases to have effect in relation to a particular interest if the nature or extent of the interest materially increases above that disclosed in the notice.

192(7)  Effect of contravention by director.  

A contravention of this section by a director does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

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History

S 192 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 193   INTERACTION OF SECTIONS 191 AND 192 WITH OTHER LAWS ETC  

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193     Sections 191 and 192 have effect in addition to, and not in derogation of:

(a)  any general law rule about conflicts of interest; and

(b)  any provision in a company's constitution (if any) that restricts a director from:

(i) having a material personal interest in a matter; or

(ii) holding an office or possessing property;

involving duties or interests that conflict with their duties or interests as a director.

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History

S 193 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 194   VOTING AND COMPLETION OF TRANSACTIONS - DIRECTORS OF PROPRIETARY COMPANIES (replaceable rule - see section 135)  

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194     If a director of a proprietary company has a material personal interest in a matter that relates to the affairs of the company and:

(a)  under section 191 the director discloses the nature and extent of the interest and its relation to the affairs of the company at a meeting of the directors; or

(b)  the interest is one that does not need to be disclosed under section 191;

then:

(c)  the director may vote on matters that relate to the interest; and

(d)  any transactions that relate to the interest may proceed; and

(e)  the director may retain benefits under the transaction even though the director has the interest; and

(f)  the company cannot avoid the transaction merely because of the existence of the interest.

If disclosure is required under section 191, paragraphs (e) and (f) apply only if the disclosure is made before the transaction is entered into.

Note:

A director may need to give notice to the other directors if the director has a material personal interest in a matter relating to the affairs of the company (see section 191).

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History

S 194 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 195   RESTRICTIONS ON VOTING - DIRECTORS OF PUBLIC COMPANIES ONLY  

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195(1)  Restrictions on voting and being present.  

A director of a public company who has a material personal interest in a matter that is being considered at a directors' meeting must not:

(a)  be present while the matter is being considered at the meeting; or

(b)  vote on the matter;

unless:

(c)  subsection (2) or (3) allows the director to be present; or

(d)  the interest does not need to be disclosed under section 191.

195(2)  Participation with approval of other directors.  

The director may be present and vote if directors who do not have a material personal interest in the matter have passed a resolution that:

(a)  identifies the director, the nature and extent of the director's interest in the matter and its relation to the affairs of the company; and

(b)  states that those directors are satisfied that the interest should not disqualify the director from voting or being present.

195(3)  Participation with ASIC approval.  

The director may be present and vote if they are so entitled under a declaration or order made by ASIC under section 196.

195(4)  Director may consider or vote on resolution to deal with matter at general meeting.  

If there are not enough directors to form a quorum for a directors' meeting because of subsection (1), 1 or more of the directors (including those who have a material personal interest in that matter) may call a general meeting and the general meeting may pass a resolution to deal with the matter.

195(5)  Effect of contravention by director.  

A contravention by a director of:

(a)  this section; or

(b)  a condition attached to a declaration or order made by ASIC under section 196;

does not affect the validity of any resolution.

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History

S 195 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 196   ASIC POWER TO MAKE DECLARATIONS AND CLASS ORDERS  

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196(1)  ASIC's power to make specific declarations.  

ASIC may declare in writing that a director of a public company who has a material personal interest in a matter that is being, or is to be, considered at a directors' meeting may, despite the director's interest, be present while the matter is being considered at the meeting, vote on the matter, or both be present and vote. However, ASIC may only make the declaration if:

(a)  the number of directors entitled to be present and vote on the matter would be less than the quorum for a directors' meeting if the director were not allowed to vote on the matter at the meeting; and

(b)  the matter needs to be dealt with urgently, or there is some other compelling reason for the matter being dealt with at the directors' meeting, rather than by a general meeting called under subsection 195(4).

196(2)  [Declaration may be limited]  

The declaration may:

(a)  apply to all or only some of the directors; or

(b)  specify conditions that the company or director must comply with.

196(3)  ASIC's power to make class orders.  

ASIC may make an order in writing that enables directors who have a material personal interest in a matter to be present while the matter is being considered at a directors' meeting, vote on that matter, or both be present and vote. The order may be made in respect of a specified class of public companies, directors, resolutions or interests.

196(4)  [Order may be conditional]  

The order may be expressed to be subject to conditions.

196(5)  [Publication in the Gazette]  

Notice of the making, revocation or suspension of the order must be published in the Gazette.

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History

S 196 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

Division 3 - Duty to discharge certain trust liabilities

SECTION 197   DIRECTORS LIABLE FOR DEBTS AND OTHER OBLIGATIONS INCURRED BY CORPORATION AS TRUSTEE  

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197(1)  (Liability of director)  

A person who is a director of a corporation when it incurs a liability while acting, or purporting to act, as trustee, is liable to discharge the whole or a part of the liability if the corporation:

(a)  has not, and cannot, discharge the liability or that part of it; and

(b)  is not entitled to be fully indemnified against the liability out of trust assets.

This is so even if the trust does not have enough assets to indemnify the trustee. The person is liable both individually and jointly with the corporation and anyone else who is liable under this subsection.

197(2)  [Indemnification]  

The person is not liable under subsection (1) if the person would be entitled to have been fully indemnified by 1 of the other directors against the liability had all the directors of the corporation been trustees when the liability was incurred.

197(3)  [Jurisdictional limit]  

This section does not apply to a liability incurred outside Australia by a foreign company.

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History

S 197 inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

Division 4 - Powers

SECTION 198A   POWERS OF DIRECTORS (replaceable rule - see section 135)  

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198A(1)  (Management of business)  

The business of a company is to be managed by or under the direction of the directors.

Note:

See section 198E for special rules about the powers of directors who are the single director/shareholder of proprietary companies.

198A(2)  (Exercise of powers)  

The directors may exercise all the powers of the company except any powers that this Law or the company's constitution (if any) requires the company to exercise in general meeting.

Note:

For example, the directors may issue shares, borrow money and issue debentures.

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History

S 198A inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 198B   NEGOTIABLE INSTRUMENTS (replaceable rule - see section 135)  

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198B(1)  (Use of negotiable instruments)  

Any 2 directors of a company that has 2 or more directors, or the director of a proprietary company that has only 1 director, may sign, draw, accept, endorse or otherwise execute a negotiable instrument.

198B(2)  [Use of instrument in a different way]  

The directors may determine that a negotiable instrument may be signed, drawn, accepted, endorsed or otherwise executed in a different way.

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History

S 198B inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 198C   MANAGING DIRECTOR (replaceable rule - see section 135)  

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198C(1)  [Conferral of power]  

The directors of a company may confer on a managing director any of the powers that the directors can exercise.

198C(2)  [Power can be revoked or varied]  

The directors may revoke or vary a conferral of powers on the managing director.

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History

S 198C inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 198D   DELEGATION  

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198D(1)  [Delegation of powers]  

Unless the company's constitution provides otherwise, the directors of a company may delegate any of their powers to:

(a)  a committee of directors; or

(b)  a director; or

(c)  an employee of the company; or

(d)  any other person.

Note:

The delegation must be recorded in the company's minute book (see section 251A).

198D(2)  [Exercise of powers]  

The delegate must exercise the powers delegated in accordance with any directions of the directors.

198D(3)  [Effect of exercise of powers]  

The exercise of the power by the delegate is as effective as if the directors had exercised it.

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History

S 198D inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 198E   SINGLE DIRECTOR/SHAREHOLDER PROPRIETARY COMPANIES  

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198E(1)  Powers of director.  

The director of a proprietary company who is its only director and only shareholder may exercise all the powers of the company except any powers that this Law or the company's constitution (if any) requires the company to exercise in general meeting. The business of the company is to be managed by or under the direction of the director.

Note:

For example, the director may issue shares, borrow money and issue debentures.

198E(2)  Negotiable instruments.  

The director of a proprietary company who is its only director and only shareholder may sign, draw, accept, endorse or otherwise execute a negotiable instrument. The director may determine that a negotiable instrument may be signed, drawn, accepted, endorsed or otherwise executed in a different way.

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History

S 198E inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 198F   RIGHT OF ACCESS TO COMPANY BOOKS  

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198F(1)  Right while director.  

A director of a company may inspect the books of the company (other than its financial records) at all reasonable times for the purposes of a legal proceeding:

(a)  to which the person is a party; or

(b)  that the person proposes in good faith to bring; or

(c)  that the person has reason to believe will be brought against them.

Note:

Section 290 gives the director a right of access to financial records.

198F(2)  Right during 7 years after ceasing to be director.  

A person who has ceased to be a director of a company may inspect the books of the company (including its financial records) at all reasonable times for the purposes of a legal proceeding:

(a)  to which the person is a party; or

(b)  that the person proposes in good faith to bring; or

(c)  that the person has reason to believe will be brought against them.

This right continues for 7 years after the person ceased to be a director of the company.

198F(3)  Right to take copies.  

A person authorised to inspect books under this section for the purposes of a legal proceeding may make copies of the books for the purposes of those proceedings.

198F(4)  Company not to refuse access.  

A company must allow a person to exercise their rights to inspect or take copies of the books under this section.

198F(5)  Interaction with other rules.  

This section does not limit any right of access to company books that a person has apart from this section.

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History

S 198F inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

PART 2D.2 - RESTRICTIONS ON INDEMNITIES, INSURANCE AND TERMINATION PAYMENTS

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History

Part 2D.2 substituted by No 156 of 1999, Sch 1 (effective 13 March 2000).

Division 1 - Indemnities and insurance for officers and auditors

SECTION 199A   INDEMNIFICATION AND EXEMPTION OF OFFICER OR AUDITOR  

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199A(1)  Exemptions not allowed.  

A company or a related body corporate must not exempt a person (whether directly or through an interposed entity) from a liability to the company incurred as an officer or auditor of the company.

199A(2)  When indemnity for liability (other than for legal costs) not allowed.  

A company or a related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer or auditor of the company:

(a)  a liability owed to the company or a related body corporate

(b)  a liability for a pecuniary penalty order under section 1317G or a compensation order under section 1317H

(c)  a liability that is owed to someone other than the company or a related body corporate and did not arise out of conduct in good faith.

This subsection does not apply to a liability for legal costs.

199A(3)  When indemnity for legal costs not allowed.  

A company or related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against legal costs incurred in defending an action for a liability incurred as an officer or auditor of the company if the costs are incurred:

(a)  in defending or resisting proceedings in which the person is found to have a liability for which they could not be indemnified under subsection (2); or

(b)  in defending or resisting criminal proceedings in which the person is found guilty; or

(c)  in defending or resisting proceedings brought by ASIC or a liquidator for a court order if the grounds for making the order are found by the court to have been established; or

(d)  in connection with proceedings for relief to the person under this Law in which the Court denies the relief.

Paragraph (c) does not apply to costs incurred in responding to actions taken by ASIC or a liquidator as part of an investigation before commencing proceedings for the court order.

Note 1:

Paragraph (c) - This includes proceedings by ASIC for an order under section 206C, 206D or 206E (disqualification), section 232 (oppression), section 1317E, 1317G or 1317H (civil penalties) or section 1324 (injunction).

Note 2: The company may be able to give the person a loan or advance in respect of the legal costs (see section 212).

199A(4)  [Outcome of proceedings]  

For the purposes of subsection (3), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.

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History

S 199A inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 199B   INSURANCE PREMIUMS FOR CERTAIN LIABILITIES OF DIRECTOR, SECRETARY, OTHER OFFICER OR AUDITOR  

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199B     A company or a related body corporate must not pay, or agree to pay, a premium for a contract insuring a person who is or has been an officer or auditor of the company against a liability (other than one for legal costs) arising out of:

(a)  conduct involving a wilful breach of duty in relation to the company; or

(b)  a contravention of section 182 or 183.

This section applies to a premium whether it is paid directly or through an interposed entity.

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History

S 199B inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 199C   CERTAIN INDEMNITIES, EXEMPTIONS, PAYMENTS AND AGREEMENTS NOT AUTHORISED AND CERTAIN DOCUMENTS VOID  

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199C(1)  [Unlawful acts]  

Sections 199A and 199B do not authorise anything that would otherwise be unlawful.

199C(2)  [Purported cover void]  

Anything that purports to indemnify or insure a person against a liability, or exempt them from a liability, is void to the extent that it contravenes section 199A or 199B.

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History

S 199C inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

Division 2 - Termination payments

SECTION 200A   WHEN BENEFIT GIVEN IN CONNECTION WITH RETIREMENT FROM OFFICE  

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200A(1)  (Interpretation)  

For the purposes of this Division:

(a)  a benefit is given in connection with a person's retirement from an office if the benefit is given:

(i) by way of compensation for, or otherwise in connection with, the loss by the person of the office; or

(ii) in connection with the person's retirement from the office; and

(b)  giving a benefit includes:

(i) if the benefit is a payment - making the payment; and

(ii) if the benefit is an interest in property - transferring the interest; and

(c)  a person gives a benefit even if the person is obliged to give the benefit under a contract; and

(d)  a pension or lump sum is paid or payable in connection with the person's retirement from an office if the pension or lump sum is paid or payable:

(i) by way of compensation for, or otherwise in connection with, the loss by the person of the office; or

(ii) in connection with the person's retirement from the office; and

(e)  retirement from an office includes:

(i) loss of the office; and

(ii) resignation from the office; and

(iii) death of a person at a time when they hold the office.

200A(2)  (Giving a benefit)  

For the purposes of this Division, if:

(a)  a person ( person A ) gives another person a benefit ( benefit A ); and

(b)  person A gives benefit A for the purpose, or for purposes including the purpose, of enabling or assisting someone to give a person a benefit in connection with the retirement of a person ( person B ) from an office;

person A is taken to give benefit A in connection with the person B's retirement from that office.

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S 200A inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 200B   RETIREMENT BENEFITS GENERALLY NEED MEMBERSHIP APPROVAL  

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200B(1)  Benefits in connection with retirement from board or managerial office.  

The following must not give a person a benefit in connection with that person's, or someone else's, retirement from a board or managerial office in a company, or a related body corporate, without member approval under section 200E:

(a)  the company

(b)  an associate of the company (other than a body corporate that is related to the company and is itself a company)

(c)  a prescribed superannuation fund in relation to the company.

Note 1:

Sections 200F, 200G and 200H provide for exceptions to this rule.

Note 2: Section 9 defines board or managerial office .

200B(2)  Prescribed superannuation funds.  

For the purposes of this section:

(a)  a superannuation fund is taken to be a prescribed superannuation fund in relation to a company if the company, or an associate of the company, gives a benefit to the superannuation fund in prescribed circumstances; and

(b)  if a prescribed superannuation fund in relation to a company gives a benefit to another superannuation fund in prescribed circumstances, the other superannuation fund is taken to be a prescribed superannuation fund in relation to the company.

200B(3)  Prescribed circumstances.  

For the purposes of this section, if:

(a)  a company, or an associate of a company, gives a benefit to a superannuation fund solely for the purpose of enabling or assisting the superannuation fund to give to a person a benefit in connection with a person's retirement from an office in the company or a related body corporate; or

(b)  a superannuation fund gives a benefit to another superannuation fund solely for the purpose of enabling or assisting the other superannuation fund to give to a person a benefit in connection with a person's retirement from an office in a company or a related body corporate;

the benefit first referred to in paragraph (a) or (b) is taken to be given in prescribed circumstances.

200B(4)  [Definition]  

In this section:

superannuation fund means a provident, benefit, superannuation or retirement fund.

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History

S 200B inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 200C   BENEFITS ON TRANSFER OF UNDERTAKING OR PROPERTY NEED MEMBERSHIP APPROVAL  

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200C     A person must not give a benefit to a person who:

(a)  holds, or has at any previous time held, a board or managerial office in a company or a related body corporate; or

(b)  is the spouse of a person referred to in paragraph (a); or

(c)  is a relative of a person referred to in paragraph (a) or of the spouse of such a person; or

(d)  is an associate of a person referred to in paragraph (a) or the spouse of an associate of such a person;

in connection with the transfer of the whole or any part of the undertaking or property of the company without member approval under section 200E.

Note:

Section 9 defines board or managerial office .

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History

S 200C inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 200D   CONTRAVENTION TO RECEIVE BENEFIT WITHOUT MEMBER APPROVAL  

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200D     A person who:

(a)  holds, or has at any previous time held, a board or managerial office in a company or related body corporate; or

(b)  is the spouse of a person referred to in paragraph (a); or

(c)  is a relative of a person referred to in paragraph (a) or of the spouse of such a person; or

(d)  is an associate of a person referred to in paragraph (a) or the spouse of an associate of such a person;

must not receive a benefit if the giving of the benefit contravenes section 200B or 200C.

Note:

Section 9 defines board or managerial office .

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History

S 200D inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 200E   APPROVAL BY MEMBERS  

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200E(1)  [Method for approval]  

If section 200B or 200C requires member approval for giving a person a benefit, it must be approved by a resolution passed at a general meeting of:

(a)  the company; and

(b)  if the company is a subsidiary of a listed domestic corporation - the listed corporation; and

(c)  if the company has a holding company that:

(i) is a domestic corporation that is not listed; and

(ii) is not itself a subsidiary of a domestic corporation - the holding company.

200E(2)  [Details in notice]  

Details of the benefit must be set out in, or accompany, the notice of the meeting at which the resolution is to be considered. The details must include:

(a)  if the proposed benefit is a payment:

(i) the amount of the payment; or

(ii) if that amount cannot be ascertained at the time of the disclosure - the manner in which that amount is to be calculated and any matter, event or circumstance that will, or is likely to, affect the calculation of that amount; and

(b)  otherwise:

(i) the money value of the proposed prescribed benefit; or

(ii) if that value cannot be ascertained at the time of the disclosure - the manner in which that value is to be calculated and any matter, event or circumstance that will, or is likely to, affect the calculation of that value.

These requirements are in addition to, and not in derogation of, any other law that requires disclosure to be made with respect to giving or receiving a benefit.

200E(3)  [Extension of approval]  

The approval extends to the giving of another benefit to the person if:

(a)  the other benefit is given to the person instead of the proposed benefit; and

(b)  the amount or money value of the benefit is less than the amount or money value of the proposed benefit.

200E(4)  [Duty to body corporate]  

The approval does not relieve a director of a body corporate from any duty to the body corporate (whether under section 180,181,182,183 or 184 or otherwise and whether of a fiduciary nature or not) in connection with the giving of the benefit.

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History

S 200E inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 200F   EXEMPT BENEFITS AND BENEFITS GIVEN IN CERTAIN CIRCUMSTANCES  

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200F     Subsection 200B(1) does not apply to:

(a)  a benefit given in connection with a person's retirement from an office in relation to a company if the benefit is:

(i) given under an agreement entered into before 1 January 1991 if giving the benefit in accordance with the agreement would have been lawful if the benefit were given when the agreement was entered into; or

(ii) a genuine payment by way of damages for breach of contract; or

(iii) given to the person under an agreement made between the company and the person before the person became the holder of the office as the consideration, or part of the consideration, for the person agreeing to hold the office; or

(iv) a payment made in respect of leave of absence to which the person is entitled under an industrial instrument; or

(b)  a benefit given in prescribed circumstances.

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History

S 200F inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 200G   GENUINE PAYMENTS OF PENSION AND LUMP SUM  

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200G(1)  [Exceptions]  

Subsection 200B(1) does not apply to a benefit if:

(a)  the benefit is a payment in connection with a person's retirement from a board or managerial office (the relevant office ) in a company or a related body corporate; and

(b)  the payment is for past services the person rendered to:

(i) the company; or

(ii) a related body corporate; or

(iii) a body that was a related body corporate of the company when the past services were rendered; and

(c)  the value of the benefit, when added to the value of all other payments (if any) already made or payable in connection with the person's retirement from board or managerial offices in the company and related bodies corporate does not exceed the payment limit set by subsection (1A).

In applying paragraph (c), disregard any pensions or lump sums that section 200F applies to.

CCH Note: The reference in sec 200G(1)(c) to ``subsection (1A)'' appears to be a legislative drafting error and should refer to ``subsection (2)''.

200G(2)  [Calculation of payment limit]  

The payment limit is:

(a)  the amount worked out under subsection (3) if the person:

(i) was an eligible employee in relation to the company at the time when the person retired from the relevant office; and

(ii) has been an eligible employee in relation to the company throughout a period (the relevant period ), or throughout periods totalling a period (also the relevant period ), of more than 3 years; or

(b)  otherwise - the total remuneration of the person from the company and related bodies corporate during the period of 3 years ending when the person retired from the relevant office.

Note:

Section 9 defines remuneration .

200G(3)  [Formula]  

The amount worked out under this subsection is the amount worked out using the formula:

Total remuneration x Relevant period
------------------------------------
                 3 

      

where:

total remuneration is the amount of the total remuneration of the person from the company and related bodies corporate during the last 3 years of the relevant period.

relevant period is the number of years in the relevant period or 7, whichever is the lesser number.

200G(4)  [Amounts to be disregarded]  

In determining for the purposes of paragraph (1)(c) the value of a pension or lump sum payment, disregard any part of the pension or lump sum payment that is attributable to:

(a)  a contribution made by the person; or

(b)  a contribution made by a person other than:

(i) the company; or

(ii) a body corporate (a relevant body corporate ) that is a related body corporate of the company, or that was, when the contribution was made, such a related body corporate; or

(iii) an associate of the company, or of a relevant body corporate, in respect of:

(A) the payment of the pension, or the making of the lump sum payment, as the case may be; or

(B) the making of the contribution.

200G(5)  [Definition of eligible employee]  

For the purposes of subparagraph (2)(a), a person is taken to have been an eligible employee in relation to a company at a particular time if:

(a)  the person was a genuine full-time employee of the company at that time; or

(b)  the person was a genuine full-time employee of a body corporate at that time and the body corporate was related to the company at that time.

200G(6)  [Definition]  

In this section:

payment means a payment by way of pension or lump sum and includes a superannuation, retiring allowance, superannuation gratuity or similar payment.

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S 200G inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 200H   BENEFITS REQUIRED BY LAW  

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200H    Subsection 200B(1) does not apply to a benefit given by a person if failure to give the benefit would constitute a contravention of a law in force in Australia or elsewhere (otherwise than because of breach of contract or breach of trust).

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S 200H inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 200J   BENEFITS TO BE HELD IN TRUST FOR COMPANY  

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200J(1)  [Creation of trust]  

If giving a benefit to a person contravenes section 200B, then:

(a)  if the benefit is a payment - the amount of the payment; or

(b)  otherwise - the money value of the prescribed benefit;

is taken to be received by the person in trust for the company concerned.

200J(2)  [Section applies to whole amount]  

Subsection (1) applies to the whole of the amount of a payment or of the money value of the benefit even though giving the benefit would not have contravened section 200B if that amount or value of the benefit had been less.

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S 200J inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

PART 2D.3 - APPOINTMENT, REMUNERATION AND CESSATION OF APPOINTMENT OF DIRECTORS

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Part 2D.3 substituted by No 156 of 1999, Sch 1 (effective 13 March 2000).

Division 1 - Appointment of directors

SECTION 201A   MINIMUM NUMBER OF DIRECTORS  

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201A(1)  Proprietary companies.  

A proprietary company must have at least 1 director. That director must ordinarily reside in Australia.

201A(2)  Public companies.  

A public company must have at least 3 directors (not counting alternate directors). At least 2 directors must ordinarily reside in Australia.

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S 201A inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201B   WHO CAN BE A DIRECTOR  

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201B(1)  [Minimum age]  

Only an individual who is at least 18 may be appointed as a director of a company.

201B(2)  [Previous disqualification]  

A person who is disqualified from managing corporations under Part 2D.6 may only be appointed as director of a company if the appointment is made with permission granted by ASIC under section 206F or leave granted by the Court under section 206G.

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S 201B inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201C   DIRECTORS OF PUBLIC COMPANIES, OR SUBSIDIARIES, OVER 72  

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201C(1)  [Authority]  

A person who has turned 72 may only be appointed or act as a director of:

(a)  a public company; or

(b)  a company that is a subsidiary of a public company;

if authorised to do so under this section.

201C(2)  [Transitional period]  

A person may act as a director of a company during the period that:

(a)  starts on the day on which they turn 72; and

(b)  ends at the conclusion of the AGM beginning next after that day.

201C(3)  [When vacancy created]  

The office of a director of a public company, or of a subsidiary of a public company, becomes vacant at the conclusion of the AGM of the public company, or the subsidiary, beginning next after the director turns 72.

201C(4)  [Application to subsidiary company]  

If a proprietary company is a subsidiary of a public company:

(a)  subsection (3) does not apply to it; and

(b)  a person may continue to act as a director of the proprietary company until the next AGM of the public company after the person turns 72; and

(c)  the person's office of director becomes vacant at the end of that meeting.

Note:

Proprietary companies do not need to hold annual general meetings (see section 250N).

201C(5)  [Validity of acts]  

An act done by a person as a director is valid even if it is afterwards discovered that they had turned 72 at the time when they were appointed or that their appointment had terminated under subsection (3) or (4).

201C(6)  [No default provision]  

If the office of a director has become vacant under subsection (3) or (4), no provision for the automatic re-appointment of retiring directors in default of another appointment applies in relation to that director.

201C(7)  [Casual vacancy]  

If a vacancy created under subsection (3) or (4) is not filled at the meeting at which the office became vacant, the office may be filled as a casual vacancy.

201C(8)  [Appointmenton special resolution]  

Subject to subsections (9) and (10), a person who has turned 72 may by special resolution be appointed or re-appointed as a director of that company to hold office until the conclusion of the company's next AGM if:

(a)  the resolution states the person's age; and

(b)  the notice of meeting states that the person is a candidate for election who has turned 72 and states the person's age.

201C(9)  [Appointment to subsidiary of public company]  

If the company is a subsidiary of a public company, the appointment or re-appointment referred to in subsection (8) does not have effect unless:

(a)  the person appointed or re-appointed is a director of the public company; or

(b)  the appointment or re-appointment of the person as a director of the company has been approved by a special resolution of the public company and the notice of meeting states that the person is a candidate for election as a director of the company who has turned 72 and states the person's age.

201C(10)  [Appointment to subsidiary company]  

If the subsidiary is a proprietary company:

(a)  the person may be appointed or re-appointed as a director of the subsidiary until the end of the next AGM of the holding company; and

(b)  the appointment does not need a resolution under subsection (8); and

(c)  the appointment must satisfy either paragraph (9)(a) or (b).

201C(11)  [Appointment to company limited by guarantee]  

If:

(a)  the constitution of a company limited by guarantee provides for the holding of postal ballots for the election of a director or directors; and

(b)  a postal ballot for the election of a director or directors is held and in the ballot:

(i) the members entitled to vote have been given notice in writing by the company stating that a candidate for election has turned 72 and stating the age of the candidate; and

(ii) that candidate is elected by a majority of not less than 75% of the members who, being entitled to vote, vote in the ballot;

that candidate may be appointed or re-appointed as a director to hold office until the conclusion of the next AGM of the company.

201C(12)  [ASIC declaration]  

If:

(a)  the constitution of a company limited by guarantee provides for the election or appointment of a director or directors otherwise than by members at a general meeting or by postal ballot of members; and

(b)  ASIC declares in writing that this section does not apply to the company or its directors;

then, subject to the conditions (if any) that ASIC specifies in the declaration, this section does not so apply.

201C(13)  [Effect of vacancy]  

A vacancy in the office of a director occurring under subsection (3) or (4) is not to be taken into account in determining when other directors are to retire.

201C(14)  [Effect of constitution]  

Nothing in this section limits, or affects the operation of, any provision of a company's constitution that prevents any person from being appointed as a director or requiring any director to vacate their office at any age less than 72 years.

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S 201C inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201D   CONSENT TO ACT AS DIRECTOR  

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201D(1)  [Need for signed consent]  

A company contravenes this subsection if a person does not give the company a signed consent to act as a director of the company before being appointed.

201D(2)  [Consent to be retained]  

The company must keep the consent.

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S 201D inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201E   SPECIAL RULES FOR THE APPOINTMENT OF PUBLIC COMPANY DIRECTORS  

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201E(1)  [Method for passing resolution]  

A resolution passed at a general meeting of a public company appointing or confirming the appointment of 2 or more directors is void unless:

(a)  the meeting has resolved that the appointments or confirmations may be voted on together; and

(b)  no votes were cast against the resolution.

201E(2)  [Exclusions]  

This section does not affect:

(a)  a resolution to appoint directors by an amendment to the company's constitution (if any); or

(b)  a ballot or poll to elect 2 or more directors if the ballot or poll does not require members voting for 1 candidate to vote for another candidate.

201E(3)  [Requirement of ballot or poll]  

For the purposes of paragraph (2)(b), a ballot or poll does not require a member to vote for a candidate merely because the member is required to express a preference among individual candidates in order to cast a valid vote.

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S 201E inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201F   SPECIAL RULES FOR THE APPOINTMENT OF DIRECTORS FOR SINGLE DIRECTOR/SINGLE SHAREHOLDER PROPRIETARY COMPANIES  

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201F(1)  [Appointment on recording and signing]  

The director of a proprietary company who is its only director and only shareholder may appoint another director by recording the appointment and signing the record.

201F(2)  Appointment of new director on death, mental incapacity or bankruptcy.  

If a person who is the only director and the only shareholder of a proprietary company:

(a)  dies; or

(b)  cannot manage the company because of the person's mental incapacity;

and a personal representative or trustee is appointed to administer the person's estate or property, the personal representative or trustee may appoint a person as the director of the company.

201F(3)  [Appointment upon bankruptcy]  

If:

(a)  the office of the director of a proprietary company is vacated under subsection 206B(3) or (4) because of the bankruptcy of the director; and

(b)  the person is the only director and the only shareholder of the company; and

(c)  a trustee in bankruptcy is appointed to the person's property;

the trustee may appoint a person as the director of the company.

201F(4)  [Power of appointment]  

A person who has a power of appointment under subsection (2) or (3) may appoint themselves as director.

201F(5)  [Holding office]  

A person appointed as a director of a company under subsection (2), (3) or (4) holds office as if they had been appointed in the usual way.

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S 201F inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201G   COMPANY MAY APPOINT A DIRECTOR (replaceable rule - see section 135)  

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201G     A company may appoint a person as a director by resolution passed in general meeting.

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S 201G inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201H   DIRECTORS MAY APPOINT OTHER DIRECTORS (replaceable rule - see section 135)  

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201H(1)  Appointment by other directors.  

The directors of a company may appoint a person as a director. A person can be appointed as a director in order to make up a quorum for a directors' meeting even if the total number of directors of the company is not enough to make up that quorum.

201H(2)  Proprietary company - confirmation by meeting within 2 months.  

If a person is appointed under this section as a director of a proprietary company, the company must confirm the appointment by resolution within 2 months after the appointment is made. If the appointment is not confirmed, the person ceases to be a director of the company at the end of those 2 months.

201H(3)  Public company - confirmation by next AGM.  

If a person is appointed by the other directors as a director of a public company, the company must confirm the appointment by resolution at the company's next AGM. If the appointment is not confirmed, the person ceases to be a director of the company at the end of the AGM.

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S 201H inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201J   APPOINTMENT OF MANAGING DIRECTORS (replaceable rule - see section 135)  

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201J     The directors of a company may appoint 1 or more of themselves to the office of managing director of the company for the period, and on the terms (including as to remuneration), as the directors see fit.

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S 201J inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201K   ALTERNATE DIRECTORS (replaceable rule - see section 135)  

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201K(1)  [Need for approval]  

With the other directors' approval, a director may appoint an alternate to exercise some or all of the director's powers for a specified period.

201K(2)  [Request for notice]  

If the appointing director requests the company to give the alternate notice of directors' meetings, the company must do so.

201K(3)  [Exercise of powers]  

When an alternate exercises the director's powers, the exercise of the powers is just as effective as if the powers were exercised by the director.

201K(4)  [Termination]  

The appointing director may terminate the alternate's appointment at any time.

201K(5)  [Documents required]  

An appointment or its termination must be in writing. A copy must be given to the company.

Note:

ASIC must be given notice of the appointment and termination of appointment of an alternate (see subsections 205B(2) and (5)).

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History

S 201K inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201L   SIGNPOST - ASIC TO BE NOTIFIED OF APPOINTMENT  

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201L     Under section 205B, a company must notify ASIC within 14 days if a person is appointed as a director or as an alternate director.

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S 201L inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 201M   EFFECTIVENESS OF ACTS BY DIRECTORS  

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201M(1)  [Effectiveness of acts]  

An act done by a director is effective even if their appointment, or the continuance of their appointment, is invalid because the company or director did not comply with the company's constitution (if any) or any provision of this Law.

201M(2)  [Ramifications not addressed]  

Subsection (1) does not deal with the question whether an effective act by a director:

(a)  binds the company in its dealings with other people; or

(b)  makes the company liable to another person.

Note:

The kinds of acts that this section validates are those that are only legally effective if the person doing them is a director (for example, calling a meeting of the company's members or signing a document to be lodged with ASIC orminutes of a meeting). Sections 128-130 contain rules about the assumptions people are entitled to make when dealing with a company and its officers.

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History

S 201M inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

Division 2 - Remuneration of directors

SECTION 202A   REMUNERATION OF DIRECTORS (replaceable rule - see section 135)  

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202A(1)  (Remuneration by resolution)  

The directors of a company are to be paid the remuneration that the company determines by resolution.

Note:

Chapter 2E makes special provision for the payment of remuneration to the directors of public companies.

202A(2)  (Expenses)  

The company may also pay the directors' travelling and other expenses that they properly incur:

(a)  in attending directors' meetings or any meetings of committees of directors; and

(b)  in attending any general meetings of the company; and

(c)  in connection with the company's business.

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S 202A inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 202B   MEMBERS MAY OBTAIN INFORMATION ABOUT DIRECTORS' REMUNERATION  

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202B(1)  (Disclosure upon direction)  

A company must disclose the remuneration paid to each director of the company or a subsidiary (if any) by the company or by an entity controlled by the company if the company is directed to disclose the information by:

(a)  members with at least 5% of the votes that may be cast at a general meeting of the company; or

(b)  at least 100 members who are entitled to vote at a general meeting of the company.

The company must disclose all remuneration paid to the director, regardless of whether it is paid to the director in relation to their capacity as director or another capacity.

202B(2)  [Method for compliance]  

The company must comply with the direction as soon as practicable by:

(a)  preparing a statement of the remuneration of each director of the company or subsidiary for the last financial year before the direction was given; and

(b)  having the statement audited; and

(c)  sending a copy of the audited statement to each person entitled to receive notice of general meetings of the company.

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S 202B inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 202C   SPECIAL RULE FOR SINGLE DIRECTOR/SINGLE SHAREHOLDER PROPRIETARY COMPANIES  

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202C     A person who is the only director and the only shareholder of a proprietary company is to be paid any remuneration for being a director that the company determines by resolution. The company may also pay the director's travelling and other expenses properly incurred by the director in connection with the company's business.

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History

S 202C inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

Division 3 - Resignation, retirement or removal of directors

SECTION 203A   DIRECTOR MAY RESIGN BY GIVING WRITTEN NOTICE TO COMPANY (replaceable rule - see section 135)  

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203A     A director of a company may resign as a director of the company by giving a written notice of resignation to the company at its registered office.

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S 203A inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 203B   SIGNPOST TO CONSEQUENCES OF DISQUALIFICATION FROM MANAGING CORPORATIONS  

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203B     A person ceases to be a director of a company if the person becomes disqualified from managing corporations under Part 2D.6 (see subsection 206A(2)) unless ASIC or the Court allows them to manage the company (see sections 206F and 206G).

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S 203B inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 203C   REMOVAL BY MEMBERS - PROPRIETARY COMPANIES (replaceable rule - see section 135)  

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203C     A proprietary company:

(a)  may by resolution remove a director from office; and

(b)  may by resolution appoint another person as a director instead.

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S 203C inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 203D   REMOVAL BY MEMBERS - PUBLIC COMPANIES  

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203D(1)  Resolution for removal of director.  

A public company may by resolution remove a director from office despite anything in:

(a)  the company's constitution (if any); or

(b)  an agreement between the company and the director; or

(c)  an agreement between any or all members of the company and the director.

If the director was appointed to represent the interests of particular shareholders or debenture holders, the resolution to remove the director does not take effect until a replacement to represent their interests has been appointed.

Note:

See sections 249C to 249G for the rules on who may call meetings, sections 249H to 249M on how to call meetings and sections 249N to 249Q for rules on members' resolutions.

203D(2)  Notice of intention to move resolution for removal of director.  

Notice of intention to move the resolution must be given to the company at least 2 months before the meeting is to be held. However, if the company calls a meeting after the notice of intention is given under this subsection, the meeting may pass the resolution even though the meeting is held less than 2 months after the notice of intention is given.

Note:

Short notice of the meeting cannot be given for this resolution (see subsection 249H(3)).

203D(3)  Director to be informed.  

The company must give the director a copy of the notice as soon as practicable after it is received.

203D(4)  Director's right to put case to members.  

The director is entitled to put their case to members by:

(a)  giving the company a written statement for circulation to members (see subsections (5) and (6)); and

(b)  speaking to the motion at the meeting (whether or not the director is a member of the company).

203D(5)  [Circulation of statement]  

The written statement is to be circulated by the company to members by:

(a)  sending a copy to everyone to whom notice of the meeting is sent if there is time to do so; or

(b)  if there is not time to comply with paragraph (a) - having the statement distributed to members attending the meeting and read out at the meeting before the resolution is voted on.

203D(6)  [Exceptions]  

The director's statement does not have to be circulated to members if it is more than 1,000 words long or defamatory.

203D(7)  Time of retirement.  

If a person is appointed to replace a director removed under this section, the time at which:

(a)  the replacement director; or

(b)  any other director;

is to retire is to be worked out as if the replacement director had become director on the day on which the replaced director was last appointed a director.

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S 203D inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 203E   DIRECTOR CANNOT BE REMOVED BY OTHER DIRECTORS - PUBLIC COMPANIES  

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203E     A resolution, request or notice of any or all of the directors of a public company is void to the extent that it purports to:

(a)  remove a director from their office; or

(b)  require a director to vacate their office.

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S 203E inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

SECTION 203F   TERMINATION OF APPOINTMENT OF MANAGING DIRECTOR (replaceable rule - see section 135)  

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203F(1)  [Cease to be managing director]  

A person ceases to be managing director if they cease to be a director.

203F(2)  [Powers to revoke or vary appointment]  

The directors may revoke or vary an appointment of a managing director.

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History

S 203F inserted by No 156 of 1999, Sch 1 (effective 13 March 2000).

PART 2D.4 - APPOINTMENT OF SECRETARIES

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