CHAPTER 1
-
INTRODUCTORY
PART 1.2A
-
DISCLOSING ENTITIES
Division 1
-
Object of Part
SECTION 111AA
111AA
OBJECT OF PART
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 Act 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 Act in relation to disclosing entities (this is done in Division 4).
Division 2
-
Meaning of disclosing entity and related terms
History
Div 2 heading substituted by No 76 of 2023, s 3, Sch 2[71] (effective 20 October 2023).
SECTION 111AB
111AB
TERMS DEFINED IN DIVISION
(Repealed by No 76 of 2023, s 3, Sch 2[72] (effective 20 October 2023).)
SECTION 111AC
MEANING OF DISCLOSING ENTITY
111AC(1)
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 Act.
111AC(2)
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 Act.
SECTION 111AD
MEANING OF ED SECURITIES
111AD(1)
Securities of a body are
ED securities
(short for
"
enhanced disclosure securities
"
) for the purposes of this Act if, and only if:
(a)
they are ED securities under section
111AE
,
111AF
,
111AFA
,
111AFB
,
111AG
or
111AI
; and
(b)
they are not declared under section
111AJ
not to be ED securities.
History
S111AD(1) amended by No 61 of 2018, s 3, Sch 2[58] (effective 18 September 2018).
S 111AD(1) amended by No 122 of 2001, s 3, Sch 2
[
9].
111AD(2)
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.
SECTION 111AE
SECURITIES OF BODIES OR UNDERTAKINGS INCLUDED IN A LICENSED MARKET
'
S OFFICIAL LIST
111AE(1)
If:
(a)
a body corporate (other than a notified foreign passport fund) is, with its agreement, consent or acquiescence, included in the official list of a prescribed financial market; and
(b)
the market
'
s listing rules (according to their terms) apply to the body in relation to a class (which may be some or all) of securities issued by the body;
securities issued by the body in that class are
ED securities
, and that market is a
listing market
in relation to that body.
History
S 111AE(1) amended by No 61 of 2018, s 3, Sch 2[60] (effective 18 September 2018).
S 111AE(1) substituted by No 122 of 2001, s 3, Sch 2
[
10].
111AE(1A)
If:
(a)
an undertaking to which interests in a registered scheme relates is, with the agreement, consent or acquiescence of the responsible entity, included in the official list of a prescribed financial market; and
(b)
the market
'
s listing rules (according to their terms) apply to the undertaking in relation to a class (which may be some or all) of managed investment products that relate to the scheme;
managed investment products in that class that relate to the scheme are
ED securities
, and that market is a
listing market
in relation to the undertaking.
History
S 111AE(1A) inserted by No 122 of 2001, s 3, Sch 2
[
10].
111AE(1B)
If:
(a)
an undertaking to which interests in a notified foreign passport fund relate is, with the agreement, consent or acquiescence of the operator of the fund, included in the official list of a prescribed financial market; and
(b)
the market
'
s listing rules (according to their terms) apply to the fund in relation to a class (which may be some or all) of foreign passport fund products that relate to the fund;
foreign passport fund products in that class that relate to the fund are
ED securities
, and that market is a
listing market
in relation to the fund.
History
S 111AE(1B) inserted by No 61 of 2018, s 3, Sch 2[61] (effective 18 September 2018).
111AE(1C)
If:
(a)
subsection
(1)
does not apply to securities issued by a CCIV; and
(b)
a sub-fund of the CCIV is, with the agreement, consent or acquiescence of the CCIV, included in the official list of a prescribed financial market; and
(c)
the market
'
s listing rules (according to their terms) apply to the sub-fund in relation to a class of securities issued by the CCIV that are referable to the sub-fund;
securities in that class that are referable to the sub-fund are
ED securities
, and that market is a
listing market
in relation to the CCIV.
Note: Subsection
(1)
may apply to a CCIV instead of this subsection if the CCIV, and not a sub-fund, is included in the official list of a prescribed financial market.
History
S 111AE(1C) inserted by No 69 of 2023, s 3, Sch 4[71] (effective 15 September 2023).
111AE(2)
Subsections
(1)
and
(1A)
do 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 issued by the body that would otherwise be ED securities because of subsection
(1)
or
(1A)
are debentures; and
(c)
both the repayment of principal, and the payment of interest, in respect of those debentures is guaranteed by the Commonwealth.
History
S 111AE(2) amended by No 122 of 2001, s 3, Sch 2
[
11] and
[
12].
111AE(3)
Subsections
(1)
and
(1A)
do 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.
History
S 111AE(3) amended by No 122 of 2001, s 3, Sch 2
[
13].
SECTION 111AF
SECURITIES (EXCEPT DEBENTURES AND MANAGED INVESTMENT PRODUCTS) HELD BY 100 OR MORE PERSONS
111AF(1)
Securities (except debentures or managed investment products) 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
; and
(b)
securities in that class have been issued pursuant to the disclosure document; and
(c)
after an issue of securities in that class pursuant to the disclosure document, 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).
[
CCH Note:
S 111AF(1) will be amended by No 69 of 2020, s 3, Sch 1[386], by omitting
"
with ASIC
"
in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 111AF(1) renumbered from 111AF by No 85 of 2007, s 3, Sch 1
[
5].
111AF(2)
Securities (except debentures and managed investment products) in a class of securities of a body are
ED securities
if securities in that class have been issued under a recognised offer and the offeror
'
s records indicate that 100 or more people who reside in this jurisdiction have held securities in that class (whether or not as a result of the recognised offer) at all times since the issue.
History
S 111AF(2) inserted by No 85 of 2007, s 3, Sch 1
[
6].
111AF(3)
Securities (except debentures) in a class of securities of a CCIV are
ED securities
if 100 or more people hold securities in that class as a result of offers that gave rise to obligations to give Product Disclosure Statements (whether or not all in the same terms) under Chapter
7
(as that Chapter applies to those securities under Division
4
of Part
8B.7
).
History
S 111AF(3) inserted by No 8 of 2022, s 3, Sch 2[38] (effective 1 July 2022).
SECTION 111AFA
MANAGED INVESTMENT PRODUCTS HELD BY 100 OR MORE PERSONS
111AFA(1)
[
Managed investment products]
Managed investment products in a class of managed investment products issued by a body are
ED securities
if 100 or more people hold managed investment products in that class as a result of offers that gave rise to obligations to give Product Disclosure Statements (whether or not all in the same terms) under Chapter 7.
History
S 111AFA(1) renumbered from 111AFA by No 85 of 2007, s 3, Sch 1
[
7] (effective 21 December 2007).
111AFA(2)
[
Holders of interest resident in jurisdiction]
Interests in a class of interests in a managed investment scheme issued by a body are
ED securities
if interests in that class have been issued under a recognised offer and the offeror
'
s records indicate that 100 or more people who reside in this jurisdiction have held interests in that class (whether or not as a result of the recognised offer) at all times since the issue.
History
S 111AFA(2) inserted by No 85 of 2007, s 3, Sch 1
[
8] (effective 21 December 2007).
SECTION 111AFB
111AFB
FOREIGN PASSPORT FUND PRODUCTS HELD BY 100 OR MORE PERSONS
Foreign passport fund products in a class of foreign passport fund products issued by a body are
ED securities
if 100 or more people who reside in this jurisdiction hold foreign passport fund products in that class.
History
S 111AFB inserted by No 61 of 2018, s 3, Sch 2[62] (effective 18 September 2018).
SECTION 111AG
SECURITIES ISSUED AS CONSIDERATION FOR AN ACQUISITION UNDER AN OFF-MARKET TAKEOVER BID OR PART 5.1 COMPROMISE OR ARRANGEMENT
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
(b)
after an issue of securities in that class under the off-market bid, 100 or more persons held securities in that class; and
(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).
111AG(2)
[
Securities issued under compromise or arrangement]
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; 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).
SECTION 111AH
WHEN A PERSON HOLDS SECURITIES FOR THE PURPOSES OF SECTIONS 111AF, 111AFA, 111AFB AND 111AG
111AH(1)
For the purposes of sections 111AF, 111AFA 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 or 601CZB; or
(b)
the person is entitled to be so registered.
History
S 111AH(1) amended by No 122 of 2001, s 3, Sch 2
[
16].
S 111AH(1) amended by No 122 of 2001, Sch 3, Pt 1
[
19].
111AH(1A)
For the purposes of section
111AFB
, a person holds securities in a notified foreign passport fund if, and only if:
(a)
the person is registered as the holder of securities in the fund on a register maintained by the operator of the fund under the law of the home economy for the fund; or
(b)
the person is entitled to be so registered.
History
S 111AH(1A) inserted by No 61 of 2018, s 3, Sch 2[64] (effective 18 September 2018).
111AH(2)
For the purposes of sections 111AF, 111AFA, 111AFB and 111AG, joint holders of securities count as one person.
History
S 111AH(2) amended by No 61 of 2018, s 3, Sch 2[65] (effective 18 September 2018).
S 111AH(2) amended by No 122 of 2001, s 3, Sch 2
[
17].
SECTION 111AI
111AI
DEBENTURES
Debentures of a borrower are
ED securities
if:
(a)
section 283AA requires the borrower to appoint a trustee; or
(b)
section 283AA does not apply to the borrower only because the offer of the debentures to which section 283AA would otherwise have applied is a recognised offer.
History
S 111AI substituted by No 85 of 2007, s 3, Sch 1
[
9] (effective 21 December 2007).
SECTION 111AJ
REGULATIONS MAY DECLARE SECURITIES NOT TO BE ED SECURITIES
111AJ(1)
[
Declaration]
The regulations may declare specified securities of bodies not to be ED securities.
111AJ(2)
[
Effect of regulations]
Regulations in force for the purposes of subsection (1) have effect accordingly, despite anything else in this Division.
SECTION 111AK
111AK
ED SECURITIES OF A DISCLOSING ENTITY
For the purposes of this Act, ED securities because of which (having regard to section 111AC) a disclosing entity is such an entity are ED securities of the entity.
SECTION 111AL
111AL
MEANING OF LISTED DISCLOSING ENTITY
A disclosing entity is a
listed disclosing entity
if all or any ED securities of the entity are quoted ED securities.
History
S 111AL substituted by No 76 of 2023, s 3, Sch 2[73] (effective 20 October 2023).
SECTION 111AM
111AM
MEANING OF QUOTED ED SECURITIES
For the purposes of this Act, ED securities are
quoted ED securities
if they are ED securities because of section
111AE
.
Division 3
-
Significance of being a disclosing entity
SECTION 111AN
111AN
DIVISION CONTAINS OUTLINE OF SIGNIFICANCE OF BEING A DISCLOSING ENTITY
This Division outlines the significance for this Act of being a disclosing entity.
SECTION 111ANA
111ANA
REQUIREMENTS RELATING TO REMUNERATION RECOMMENDATIONS IN RELATION TO KEY MANAGEMENT PERSONNEL
There are special requirements in Part
2D.8
for remuneration recommendations in relation to key management personnel for disclosing entities that are companies.
History
S 111ANA inserted by No 42 of 2011, s 3, Sch 1, Pt 1
[
7] (effective 1 July 2011).
SECTION 111AO
111AO
ACCOUNTING REQUIREMENTS
A disclosing entity incorporated or formed in Australia has to prepare financial statements and reports for half-years as well as full financial years. These requirements are set out in Chapter
2M
.
History
S 111AO amended by No 103 of 2004, s 3, Sch 11
[
3] (effective 1 July 2004).
SECTION 111AP
CONTINUOUS DISCLOSURE REQUIREMENTS
111AP(1)
A disclosing entity is subject to the continuous disclosure requirements of sections
674
,
674A
,
675
and
675A
.
History
S 111AP(1) amended by No 82 of 2021, s 3, Sch 2[27] (effective 14 August 2021).
S 111AP(1) amended by No 122 of 2001, s 3, Sch 2
[
18].
111AP(2)
(Repealed by No 122 of 2001, s 3, Sch 2
[
19].)
111AP(3)
(Repealed by No 122 of 2001, s 3, Sch 2
[
19].)
SECTION 111AQ
111AQ
PROSPECTUS RELIEF
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.
SECTION 111AQA
111AQA
PRODUCT DISCLOSURE STATEMENT RELIEF
Obligations that apply to disclosing entities can be taken into account in deciding what information should be included in a Product Disclosure Statement
-
see section
1013FA
and paragraph
1013F(2)
(d).
History
S 111AQA amended by No 103 of 2004, s 3, Sch 7, Pt 2
[
4] (effective 1 July 2004).
S 111AQA inserted by No 122 of 2001, s 3, Sch 2
[
20] (effective 11 March 2002).
Division 4
-
Exemptions and modifications
SECTION 111AR
MEANING OF DISCLOSING ENTITY PROVISIONS
111AR(1)
The
disclosing entity provisions
are the provisions of the following:
(a)
Chapter
2M
as it applies to disclosing entities;
[
CCH Note:
There are no paragraphs 111AR(1)(b), 111AR(1)(c).]
(d)
sections
674
,
674A
,
675
and
675A
;
(e)
Division
4
of Part
8B.4
as it applies to disclosing entities;
(f)
Division
2
of Part
8B.7
as it applies to disclosing entities.
History
S 111AR(1) amended by No 76 of 2023, s 3, Sch 2[74] (effective 20 October 2023).
S 111AR(1) amended by No 8 of 2022, s 3, Sch 2[39] (effective 1 July 2022).
S 111AR(1) amended by No 82 of 2021, s 3, Sch 2[28] (effective 14 August 2021).
S 111AR(1) amended by No 122 of 2001, s 3, Sch 2
[
21].
111AR(2)
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.
SECTION 111AS
EXEMPTIONS BY REGULATIONS
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.
SECTION 111AT
EXEMPTIONS BY ASIC
111AT(1)
[
Exemptions]
ASIC 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.
111AT(2)
[
Specified securities may be exempted]
Without limiting subsection (1), an exemption may relate to specified securities.
111AT(3)
[
Publication in the
Gazette
]
ASIC must cause a copy of an exemption to be published in the
Gazette
.
SECTION 111AU
ENFORCING CONDITIONS OF EXEMPTIONS
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 ASIC, order the person to comply with the condition.
SECTION 111AV
MODIFICATIONS BY REGULATIONS
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.
SECTION 111AW
111AW
EXEMPTIONS AND MODIFICATIONS HAVE EFFECT
Exemptions and modifications under this Division have effect accordingly.
SECTION 111AX
111AX
EFFECT OF DIVISION
Nothing in this Division limits, or is limited by, any other exemption or modification power (for example, section
340
,
340A
,
341
,
341A
or
741
).
History
S 111AX amended by No 61 of 2018, s 3, Sch 2[66] (effective 18 September 2018).
[
CCH Note:
The next section is s 111J.]