Corporations Act 2001
CHAPTER 9
-
MISCELLANEOUS
PART 9.9
-
MISCELLANEOUS
SECTION 1344
1344
USE OF ABN
Despite any provision in this Act or any other Act, in any case where:
(a)
the ACN of a company; or
(b)
the ARBN of a registered body; or
(c)
the ARSN of a registered scheme;
is required or permitted to be used under a law of the Commonwealth administered by ASIC, the ABN of the company, body or scheme may be used instead if the last 9 digits of the ABN are the same, and in the same order, as the last 9 digits of the ACN, ARBN or ARSN.
[
CCH Note:
S 1344 will be amended by No 69 of 2020, s 3, Sch 1[1279], by inserting
"
or the Registrar
"
after
"
ASIC
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1344 inserted by No 24 of 2003, s 3, Sch 2
[
10].
SECTION 1345
EXCEPTIONAL CIRCUMSTANCES
-
GIVING DOCUMENTS
1345(1)
Subsections
(2)
to
(4)
apply in relation to a document that is required or permitted under this Act to be given by an entity to another entity (the
recipient
) if:
(a)
the entity giving the document is specified, or is in a class of entities specified, in a determination under subsection
(5)
; and
(b)
the document is specified, or is in a class of documents specified, in the determination.
Giving document by electronic communication etc.
1345(2)
If the determination specifies that the document, or documents in that class, may be given in accordance with this subsection, then the document may be given:
(a)
by means of an electronic communication; or
(b)
by giving the recipient (by means of an electronic communication or otherwise) sufficient information to allow the recipient to access the document electronically.
1345(3)
However, electronic communication or electronic access may only be used if, at the time the electronic communication is used or information about the electronic access is given, it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference.
Giving document in physical form
1345(3A)
If the determination specifies that the document, or documents in that class, may be given in accordance with this subsection, then the documentmay be given in physical form.
History
S 1345(3A) inserted by No 9 of 2022, s 3, Sch 2[40] (effective 1 April 2022).
Extension of time
1345(4)
If the requirement or permission mentioned in subsection
(1)
is for the document to be given within a particular time, the document is taken to have been given within that time if:
(a)
the determination specifies a period of extension of that time that applies to the giving of the document by the entity to the recipient; and
(b)
the specified period of extension starts after the determination is made; and
(c)
the document is given by the entity to the recipient within the specified period of extension.
ASIC may make determination
1345(5)
ASIC may make a determination specifying:
(a)
an entity, or a class of entities; and
(b)
a document, or a class of documents, required or permitted to be given under this Act (including a class that is any such document); and
(c)
one or more matters mentioned in subsections
(6)
,
(6A)
and
(7)
.
History
S 1345(5) amended by No 9 of 2022, s 3, Sch 2[41] (effective 1 April 2022).
1345(6)
ASIC may specify that the document, or documents in that class, may be given in accordance with subsection
(2)
(giving document by electronic communication etc.), if ASIC considers that it may be unreasonable to expect the specified entity, or entities in the specified class, to give the document, or documents in the specified class, in a physical form because of a situation that is beyond the control of the entity, or the entities in the class.
1345(6A)
ASIC may specify that the document, or documents in that class, may be given in accordance with subsection
(3A)
(giving document in physical form), if ASIC considers that it may be unreasonable to expect the specified entity, or entities in the specified class, to give the document, or documents in the specified class, in an electronic form because of a situation that is beyond the control of the entity, or the entities in the class.
History
S 1345(6A) inserted by No 9 of 2022, s 3, Sch 2[42] (effective 1 April 2022).
1345(7)
To the extent that the document, or documents in that class, are required or permitted under the Act to be given by the entity, or the entities in the class, within a particular time (the
original time
), ASIC may specify a period of extension of that time applying in relation to the giving of the document or documents in that class, if ASIC considers that it may be unreasonable to expect the entity, or entities in the class, to give the document, or documents in the class, within the original time, because of a situation that is beyond the control of the entity, or the entities in the class.
Other matters relating to determination
1345(8)
A determination under subsection
(5)
is:
(a)
a notifiable instrument, if it specifies an entity; or
(b)
a legislative instrument, if it specifies a class of entities.
1345(9)
The determination may be subject to specified conditions applying to the specified entity, or to entities in the specified class. An entity to which a condition specified in the determination applies must comply with the condition. The Court may order the entity to comply with the condition in a specified way.
1345(10)
Unless revoked earlier, the determination is repealed at the end of 12 months after the day on which it commences.
1345(11)
This section has effect despite any election (however described) by an entity to be given a document in a particular form.
History
S 1345(11) amended by No 9 of 2022, s 3, Sch 2[43] (effective 1 April 2022).
1345(12)
This section applies to a requirement or permission to give a document, whether the expression
give, send or serve
, or any other expression, is used.
History
S 1345(12) inserted by No 9 of 2022, s 3, Sch 2[44] (effective 1 April 2022).
History
S 1345 inserted by No 82 of 2021, s 3, Sch 1[33B] (effective 14 August 2021).
SECTION 1345A
MINISTER MAY DELEGATE PRESCRIBED FUNCTIONS AND POWERS UNDER THIS ACT
1345A(1)
The Minister may, by signed instrument, delegate to an officer of the Department all or any of the Minister
'
s functions and powers under this Act that are prescribed by the regulations for the purposes of this subsection.
History
S 1345A(1) amended by No 64 of 2020, s 3, Sch 3[28] (effective 23 June 2020).
1345A(1AA)
If:
(a)
under subsection (1), the Minister delegates to an officer of the Department all of the Minister
'
s functions and powers that are prescribed for the purposes of that subsection; and
(b)
the regulations are amended to prescribe one or more additional functions or powers for the purposes of that subsection; and
(c)
the delegation is in force immediately before the amendment takes effect;
then, on and after the amendment taking effect, the delegation is taken to include the additional functions or powers.
History
S 1345A(1AA) inserted by No 64 of 2020, s 3, Sch 3[29] (effective 23 June 2020).
1345A(1A)
The Minister may, by signed instrument, delegate the function or power under subsection
147(2)
,
601DC(2)
or
1213B(6)
to:
(a)
a member of ASIC (within the meaning of paragraph (a) of the definition of
member
in subsection
5(1)
of the
Australian Securities and Investments Commission Act 2001
); or
(b)
a staff member of ASIC who holds, or performs the duties of, a position not below an Executive Level 1 position or an equivalent position.
[
CCH Note:
S 1345A(1A) will be amended by No 69 of 2020, s 3, Sch 1[1280], by inserting para (c) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (c) will read:
; or (c)
the Registrar, a member of the Registrar (if the Registrar is a body with members) or a staff member of the Registrar.]
History
S 1345A(1A) amended by No 61 of 2018, s 3, Sch 2[348] and
[
349] (effective 18 September 2018).
S 1345A(1A) inserted by No 101 of 2007, s 3, Sch 1 Pt 2
[
197].
1345A(2)
A delegate is, in the performance or exercise of a delegated function or power, subject to the Minister
'
s directions.
SECTION 1346
NON-APPLICATION OF RULE AGAINST PERPETUITIES TO CERTAIN SCHEMES
1346(1)
[
Trusts of funds or schemes for benefit of employees of corporation]
The rules of law relating to perpetuities do not apply, and are taken never to have applied, to the trusts of any fund or scheme for the benefit of any employee of a corporation, whether the fund or scheme was established before, or is established after, the commencement of this section.
1346(2)
[
Interpretation]
In this section:
(a)
a reference to a corporation includes a reference to a body corporate or society incorporated or formed, or otherwise duly constituted, whether before, at or after the commencement of this section, by or under:
(i)
a law of the Commonwealth, of a State or Territory, of an external Territory or of a country outside Australia and the external Territories; or
(ii)
letters patent or a royal charter; and
(b)
a reference to a fund or scheme includes a reference to a provident, superannuation, sick, accident, assurance, unemployment, pension or co-operative benefit fund, scheme, arrangement or provision or other like fund, scheme, arrangement or provision; and
(c)
a reference to an employee of a corporation includes a reference to:
(i)
a director of the corporation; and
(ii)
a spouse, child, grandchild, parent or any dependant of an employee or of a director of the corporation.
[
CCH Note:
There is no section 1347.]
SECTION 1348
1348
OPERATION OF LIFE INSURANCE ACT
Nothing in this Act is taken to affect any of the provisions of the
Life Insurance Act 1995
.
SECTION 1349
PRIVILEGE AGAINST EXPOSURE TO PENALTY
-
DISQUALIFICATION ETC.
Court or Tribunal proceeding
1349(1)
In the case of:
(a)
a civil or criminal proceeding under, or arising out of, this Act or the ASIC Act; or
(b)
a proceeding before the Tribunal arising out of this Act or the ASIC Act;
a person is not entitled to refuse or fail to comply with a requirement:
(c)
to answer a question or give information; or
(d)
to produce a book or any other thing; or
(e)
to do any other act whatever;
on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of:
(f)
a disqualification under Part
2D.6
of this Act; or
(g)
a declaration under section
853C
of this Act; or
(h)
a suspension or cancellation under section
915B
of this Act; or
(i)
a suspension or cancellation under section
915C
of this Act; or
(j)
a banning order; or
(k)
an order under section
921A
of this Act; or
(l)
a cancellation or suspension under Division
3
of Part
9.2
of this Act; or
(m)
a requirement to give an undertaking under paragraph
1292(9)(b)
or (c) of this Act; or
(n)
a cancellation or suspension under Division
2
of Part
9.2A
of this Act; or
(na)
a direction under section
40-15
of Schedule
2
; or
(nb)
a decision of a kind mentioned in section
40-55
of Schedule
2
; or
(nc)
a cancellation or suspension under Division
40
of Schedule
2
; or
(o)
an order under section
12GLD
of the ASIC Act.
History
S 1349(1) amended by No 3 of 2020, s 3, Sch 4[21] (effective 18 February 2020).
S 1349(1) amended by No 11 of 2016, s 3, Sch 2[254] (effective 1 March 2017).
S 1349(1) amended by No 103 of 2010, s 3, Sch 3
[
34].
1349(2)
Subsection (1) applies whether or not the person is a defendant in, or a party to, the proceeding or any other proceeding.
Statutory requirement
1349(3)
A person is not entitled to refuse or fail to comply with a requirement under this Act or the ASIC Act:
(a)
to answer a question or give information; or
(b)
to produce a book or any other thing; or
(c)
to do any other act whatever;
on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend to make the person liable to a penalty by way of:
(d)
a disqualification under Part
2D.6
of this Act; or
(e)
a declaration under section
853C
of this Act; or
(f)
a suspension or cancellation under section
915B
of this Act; or
(g)
a suspension or cancellation under section
915C
of this Act; or
(h)
a banning order; or
(i)
an order under section
921A
of this Act; or
(j)
a cancellation or suspension under Division
3
of Part
9.2
of this Act; or
(k)
a requirement to give an undertaking under paragraph
1292(9)(b)
or (c) of this Act; or
(l)
a cancellation or suspension under Division
2
of Part
9.2A
of this Act; or
(la)
a direction under section
40-15
of Schedule
2
; or
(lb)
a decision of a kind mentioned in section
40-55
of Schedule
2
; or
(lc)
a cancellation or suspension under Division
40
of Schedule
2
; or
(m)
an order under section
12GLD
of the ASIC Act.
History
S 1349(3) amended by No 3 of 2020, s 3, Sch 4[21] (effective 18 February 2020).
S 1349(3) amended by No 11 of 2016, s 3, Sch 2[255] (effective 1 March 2017).
S 1349(3) amended by No 103 of 2010, s 3, Sch 3
[
35].
Admissibility
1349(4)
Paragraph
597(12A)(d)
of this Act, and paragraph
68(3)(b)
of the ASIC Act, do not apply to a proceeding for the imposition of a penalty by way of:
(a)
a disqualification under Part
2D.6
of this Act; or
(b)
a declaration under section
853C
of this Act; or
(c)
a suspension or cancellation under section
915B
of this Act; or
(d)
a suspension or cancellation under section
915C
of this Act; or
(e)
a banning order; or
(f)
an order under section
921A
of this Act; or
(g)
a cancellation or suspension under Division
3
of Part
9.2
of this Act; or
(h)
a requirement to give an undertaking under paragraph
1292(9)(b)
or (c) of this Act; or
(i)
a cancellation or suspension under Division
2
of Part
9.2A
of this Act; or
(ia)
a direction under section
40-15
of Schedule
2
; or
(ib)
a decision of a kind mentioned in section
40-55
of Schedule
2
; or
(ic)
a cancellation or suspension under Division
40
of Schedule
2
; or
(j)
an order under section
12GLD
of the ASIC Act.
History
S 1349(4) amended by No 3 of 2020, s 3, Sch 4[21] (effective 18 February 2020).
S 1349(4) amended by No 11 of 2016, s 3, Sch 2[256] (effective 1 March 2017).
S 1349(4) amended by No 103 of 2010, s 3, Sch 3
[
36].
Other provisions
1349(5)
Subsections (1) and (3) have effect despite anything in:
(a)
section
1317L
; or
(b)
any other provision of this Act; or
(c)
the ASIC Act; or
(d)
the
Administrative Appeals Tribunal Act 1975
.
Definition
1349(6)
In this section:
penalty
includes forfeiture.
History
S 1349 inserted by No 132 of 2007, s 3, Sch 2
[
12].
SECTION 1350
COMPENSATION FOR COMPULSORY ACQUISITION
1350(1)
[
Liability to pay compensation]
If:
(a)
apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms; and
(b)
the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the person who acquires the property is liable to pay compensation of a reasonable amount to the person from whom the property is acquired in respect of the acquisition.
1350(2)
[
Proceedings for recovery]
If the 2 people do not agree on the amount of the compensation, the person to whom compensation is payable may institute proceedings in the Court for the recovery of such reasonable amount as the court determines from the other person.
1350(3)
[
Damages recovered etc in other proceedings]
Any damages or compensation recovered or other remedy given in a proceeding that is commenced otherwise than under this section is to be taken into account in assessing compensation payable in a proceeding that is commenced under this section and that arises out of the same event or transaction.
1350(4)
[
``acquisition of property''; ``just terms'']
In this section:
acquisition of property
has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms
has the same meaning as in paragraph 51(xxxi) of the Constitution.
