Corporations Act 2001
[ CCH Note: Pt 9.1A will be inserted by No 69 of 2020, s 3, Sch 2[11] (effective 22 June 2022 or a day or days to be fixed by Proclamation). Pt 9.1A will read:
PART 9.1A - DIRECTOR IDENTIFICATION NUMBERS
SECTION 1272 GIVING AND CANCELLING DIRECTOR IDENTIFICATION NUMBERS
1272(1)
The Registrar must, by notifying a person who has applied under section 1272A , give the person a director identification number if the Registrar is satisfied that the person ' s identity has been established.
1272(2)
The Registrar must make a record of the person ' s director identification number.
1272(3)
The Registrar may, by notifying a person, cancel the person ' s director identification number if:
(a) the Registrar is no longer satisfied that the person ' s identity has been established; or
(b) the Registrar has given the person another director identification number.
1272(4)
If:
(a) at the time the person is given a director identification number under this section, the person is not an eligible officer; and
(b) the person does not, within 12 months after that time, become an eligible officer;the person ' s director identification number is taken to have been cancelled at the end of the 12 month period.
SECTION 1272A APPLYING FOR A DIRECTOR IDENTIFICATION NUMBER
1272A(1)
An eligible officer may apply to the Registrar for a director identification number if the officer does not already have a director identification number.
1272A(2)
The Registrar may direct an eligible officer to apply to the Registrar for a director identification number (whether or not the officer already has a director identification number).
1272A(3)
A person who is not an eligible officer may apply to the Registrar for a director identification number if:
(a) the person intends to become an eligible officer within 12 months after applying; and
(b) the person does not already have a director identification number.
1272A(4)
An application for a director identification number must meet any requirements of the data standards.Note: A person may commit an offence if the person knowingly gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code ).
SECTION 1272B ELIGIBLE OFFICERS
1272B(1)
An eligible officer is:
(a) a director of a company, or of a body corporate that is a registered Australian body or registered foreign company, who:
(i) is appointed to the position of a director; or
(ii) is appointed to the position of an alternate director and is acting in that capacity;regardless of the name that is given to that position; or
(b) any other officer of a company, or of a body corporate that is a registered Australian body or registered foreign company, who is an officer of a kind prescribed by the regulations;but does not include a person covered by a determination under subsection (2) or (3).
1272B(2)
The Registrar may determine that a particular person is not an eligible officer . The Registrar must notify the person of the determination.
1272B(3)
The Registrar may, by legislative instrument, determine that a class of persons are not eligible officers . SECTION 1272C REQUIREMENT TO HAVE A DIRECTOR IDENTIFICATION NUMBER
1272C(1)
An eligible officer must have a director identification number.
1272C(2)
Subsection (1) does not apply if:
(a) the officer applied to the Registrar under section 1272A for a director identification number:
(i) before the day the officer first became an eligible officer (or an eligible officer within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ); or
(ii) if the regulations specify an application period - within that period, starting at the start of that day; or
(iii) within the longer period (if any) the Registrar allows under section 1272E , starting at the start of that day; and
(b) the application, and any reviews arising out of it, have not been finally determined or otherwise disposed of.Note: A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code .
1272C(3)
Subsection (1) does not apply if the officer became an eligible officer without the officer ' s knowledge.Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .
1272C(4)
An offence based on subsection (1) is an offence of strict liability.Note: For strict liability , see section 6.1 of the Criminal Code .
1272C(5)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (5) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .
SECTION 1272D REQUIREMENT TO APPLY FOR A DIRECTOR IDENTIFICATION NUMBER
1272D(1)
An eligible officer whom the Registrar has directed under subsection 1272A(2) to apply for a director identification number must apply to the Registrar under section 1272A for a director identification number:
(a) within the application period under subsection (2) of this section; or
(b) within such longer period as the Registrar allows under section 1272E .
1272D(2)
The application period is the period of:
(a) the number of days specified in the direction; or
(b) if the number of days is not specified in the direction - 28 days;after the day the Registrar gives the direction.
1272D(3)
An offence based on subsection (1) is an offence of strict liability.Note: For strict liability , see section 6.1 of the Criminal Code .
1272D(4)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (3) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .
SECTION 1272E REGISTRAR MAY EXTEND APPLICATION PERIODS
1272E(1)
The Registrar may, on the application of an eligible officer, allow, as a longer period for applying to the Registrar under section 1272A for a director identification number:
(a) the period specified in the application; or
(b) such other period as the Registrar considers reasonable.Note: An application for an extension of the period for applying can be made, and the period can be extended, after the period has ended: see section 70 .
1272E(2)
The Registrar may, by legislative instrument, allow, for persons included in a specified class of persons, a longer period for applying to the Registrar under section 1272A for a director identification number. SECTION 1272F INFRINGEMENT NOTICES
1272F(1)
Subsections 1272C(1) and 1272D(1) are subject to an infringement notice under Part 5 of the Regulatory Powers Act.Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
1272F(2)
For the purposes of Part 5 of the Regulatory Powers Act, each member of the staff of the Registrar who holds, or is acting in, an office or position that is equivalent to an SES employee is an infringement officer in relation to subsections 1272C(1) and 1272D(1) of this Act. Relevant chief executive
1272F(3)
For the purposes of Part 5 of the Regulatory Powers Act, the relevant chief executive in relation to subsections 1272C(1) and 1272D(1) of this Act is:
(a) the person specified as the relevant chief executive in the Registrar ' s instrument of appointment under section 1270 ; or
(b) if there is no person specified - the Registrar. Matters to be included in an infringement notice
1272F(4)
Subparagraph 104(1)(e)(iii) of the Regulatory Powers Act applies to an infringement notice relating to a contravention of subsection 1272C(1) or 1272D(1) of this Act as if that subparagraph did not require the notice to give details of the place of the contravention. SECTION 1272G APPLYING FOR ADDITIONAL DIRECTOR IDENTIFICATION NUMBERS
1272G(1)
A person must not apply for a director identification number if the person knows that the person already has a director identification number.Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .
1272G(2)
Subsection (1) does not apply if the Registrar directed the person under subsection 1272A(2) to make the application.Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code .
1272G(3)
Subsection (1) does not apply if the person purports to make the application only in relation to Part 6-7A of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code .
1272G(4)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (4) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .
SECTION 1272H MISREPRESENTING DIRECTOR IDENTIFICATION NUMBERS
1272H(1)
A person must not intentionally represent to a Commonwealth body, company or registered body, as the director identification number of the person or another person, a number that is not that director identification number.Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .
1272H(2)
A person who contravenes, or is involved in a contravention of, subsection (1) contravenes this subsection.Note 1: Subsection (2) is a civil penalty provision (see section 1317E ).
Note 2: Section 79 defines involved .]
[ CCH Note: Pt 9.1 will be substituted by No 69 of 2020, s 3, Sch 1 [ 10] (effective 22 June 2022 or a day or days to be fixed by Proclamation). Pt 9.1 will read:
PART 9.1 - MATTERS RELATING TO HANDLING RECORDS AND INFORMATION
Division 1 - The Registrar
Subdivision A - Appointment etc. of the Registrar
SECTION 1270 APPOINTMENT OF THE REGISTRAR
1270(1)
The Minister may, by notifiable instrument, appoint a Commonwealth body to be the Registrar.
1270(2)
The Minister may, by notifiable instrument, appoint a Commonwealth body to be the Registrar in relation to one or more functions or powers of the Registrar. SECTION 1270A FUNCTIONS
1270A
The Registrar ' s functions are:
(a) such functions as are conferred on the Registrar by or under this Act; and
(b) such functions as are prescribed by rules made for the purposes of this paragraph under section 1270T ; and
(c) such functions as are incidental to the functions mentioned in paragraph (a) or (b). SECTION 1270B POWERS
1270B
The Registrar ' s powers include:
(a) such powers as are conferred:
(i) on the Registrar in relation to the functions mentioned in section 1270A ; and
(ii) by or under this Act; and
(b) the power to do all things necessary or convenient to be done for or in connection with the performance of those functions. SECTION 1270C DIRECTIONS BY MINISTER
1270C(1)
The Minister may, by legislative instrument, give written directions to the Registrar about the performance of its functions and the exercise of its powers.Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
1270C(2)
Without limiting subsection (1), a direction under that subsection may relate to any of the following:
(a) matters to be dealt with in the data standards or disclosure framework;
(b) consultation processes to be followed prior to making data standards or the disclosure framework.
1270C(3)
A direction under subsection (1) must be of a general nature only.
1270C(4)
Subsection (3) does not prevent a direction under subsection (1) from relating to a particular matter to be dealt with in the data standards or disclosure framework. However, the direction must not direct the Registrar how to apply the data standards or disclosure framework in a particular case.
1270C(5)
The Registrar must comply with a direction under subsection (1). SECTION 1270D DELEGATION
1270D(1)
The Registrar may, in writing, delegate all or any of the Registrar ' s functions or powers under this Act (other than the power to make data standards or the disclosure framework) to:
(a) any person to whom it may delegate any of its other functions, as a Commonwealth body, under a law of the Commonwealth; or
(b) any person of a kind specified in rules made under section 1270T .Note: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
1270D(2)
In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Registrar. SECTION 1270E ASSISTED DECISION MAKING
1270E(1)
The Registrar may arrange for the use, under the Registrar ' s control, of processes to assist decision making (such as computer applications and systems) for any purposes for which the Registrar may make decisions in the performance or exercise of the Registrar ' s functions or powers under this Act, other than decisions reviewing other decisions.
1270E(2)
A decision the making of which is assisted by the operation of such a process under an arrangement made under subsection (1) is taken to be a decision made by the Registrar.
1270E(3)
The Registrar may substitute a decision for a decision (the initial decision ) the making of which is assisted by the operation of such a process under an arrangement under subsection (1) if the Registrar is satisfied that the initial decision is incorrect. SECTION 1270F Liability for damages
1270F
None of the following:
(a) the Minister;
(b) the Registrar;
(c) if the Registrar is a Commonwealth body that has members - a member of the Registrar;
(d) a member of the staff of the Registrar;
(e) a person who is, or is a member of or a member of the staff of, a delegate of the Registrar;
(f) a person who is authorised to perform or exercise a function or power of, or on behalf of, the Registrar;
(g) an APS employee, or an officer or employee of a Commonwealth body, whose services are made available to the Registrar in connection with the performance or exercise of any of the Registrar ' s functions or powers;is liable to an action or other proceeding for damages for or in relation to an act done, or omitted to be done, in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred or expressed to be conferred by or under this Division.
Subdivision B - How the Registrar is to perform and exercise functions and powers
SECTION 1270G DATA STANDARDS
1270G(1)
The Registrar may, by legislative instrument, make data standards on matters relating to the performance of the Registrar ' s functions and the exercise of the Registrar ' s powers under this Act.
1270G(2)
Without limiting subsection (1), the data standards may provide for any of the following:
(a) what information may be collected for the purposes of the performance of the Registrar ' s functions and the exercise of the Registrar ' s powers under this Act;
(b) how such information may be collected;
(c) the manner and form in which such information is given to the Registrar;
(d) when information is to be given to the Registrar;
(e) how information held by the Registrar is to be authenticated, verified or validated;
(f) how information held by the Registrar is to be stored;
(g) correction of information held by the Registrar;
(h) the manner and form of communication between the Registrar and persons who give information to the Registrar or seek to access information held by the Registrar
(i) integrating or linking information held by the Registrar.
1270G(3)
Without limiting subsection (1), the data standards may provide differently in relation to different functions or powers of the Registrar.
1270G(4)
If:
(a) a Commonwealth body (the new Registrar ) is appointed as the Registrar with particular functions or powers under this Act; and
(b) immediately before that appointment, another Commonwealth body was the Registrar with those functions or powers; and
(c) the new Registrar does not have data standards that would apply to those functions or powers;any data standards applying to those functions or powers immediately before that appointment continue to apply until the new Registrar makes data standards that apply to those functions or powers, or amends its existing data standards to apply to those functions or powers.
SECTION 1270H GIVING INFORMATION TO THE REGISTRAR
1270H(1)
Without limiting section 1270G , the data standards may provide that information is to be given to the Registrar in electronic form, or any other specified form.
1270H(2)
A requirement under this Act that information is to be provided to the Registrar in a particular form or manner (however described), including a requirement:
(a) that the information is to be " lodged " or " furnished " ; and
(b) that the information is to be " written " or " in writing " ; and
(c) that a " copy " of a document containing the information is to be provided;is not taken to restrict by implication what the data standards may provide under subsection (1) in relation to that information.
SECTION 1270J HOW THE REGISTRAR IS TO PERFORM AND EXERCISE FUNCTIONS AND POWERS
1270J(1)
The Registrar must perform its functions and exercise its powers under this Act in accordance with:
(a) the data standards; or
(b) if there are no data standards that apply to particular functions or powers - any requirement relating to those functions or powers as in force immediately before those functions or powers became functions or powers of the Registrar.
1270J(2)
This section does not affect the application to the Registrar of any other law of the Commonwealth.Subdivision C - Disclosure of information
SECTION 1270K DISCLOSURE FRAMEWORK
1270K(1)
The Registrar may, by legislative instrument, make a disclosure framework relating to disclosing protected information.
1270K(2)
Without limiting subsection (1), the disclosure framework may provide for any of the following:
(a) circumstances in which information must not be disclosed without the consent of the person to whom it relates;
(b) circumstances in which de-identified information may be disclosed;
(c) circumstances in which information may be disclosed to the general public;
(d) circumstances in which confidentiality agreements are required for the disclosure of information;
(e) imposing conditions on disclosure of information.
1270K(3)
Without limiting subsection (1), the disclosure framework may provide differently in relation to different functions or powers of the Registrar under this Act.
1270K(4)
A person commits an offence if:
(a) the person is a party to a confidentiality agreement of a kind mentioned in paragraph (2)(d); and
(b) the person fails to comply with the confidentiality agreement.Penalty: 100 penalty units or imprisonment for 2 years, or both.
1270K(5)
The disclosure framework must not provide for disclosure of protected information unless the Registrar is satisfied that the benefits of the disclosure would outweigh the risks of the disclosure (taking into account any mitigation of those risks in accordance with the disclosure framework).
1270K(6)
However, subsection (5) does not apply to the extent that the disclosure framework deals with a matter in accordance with a direction under section 1270C .
1270K(7)
If:
(a) a Commonwealth body (the new Registrar ) is appointed as the Registrar with particular functions or powers under this Act; and
(b) immediately before that appointment, another Commonwealth body was the Registrar with those functions or powers; and
(c) the new Registrar does not have a disclosure framework that would apply to those functions or powers;the disclosure framework applying to those functions or powers immediately before that appointment continues to apply until the new Registrar makes a disclosure framework that applies to those functions or powers, or amends its existing disclosure framework to apply to those functions or powers.
SECTION 1270L PROTECTION OF CONFIDENTIALITY OF PROTECTED INFORMATION
1270L(1)
A person (the first person ) commits an offence if:
(a) the first person is, or has been, in official employment; and
(b) the first person makes a record of information, or discloses information to another person; and
(c) the information is protected information that was obtained by the first person in the course of the first person ' s official employment.Penalty: Imprisonment for 2 years.
1270L(2)
However, subsection (1) does not apply if the recording or disclosure is authorised by subsection (3).
1270L(3)
The recording or disclosure is authorised by this subsection if:
(a) the recording or disclosure is for the purposes of this Division; or
(b) the recording or disclosure happens in the course of the performance of the duties of the first person ' s official employment; or
(c) in the case of a disclosure - the disclosure is to another person for use, in the course of the performance of the duties of the other person ' s official employment, in relation to the performance or exercise of the functions or powers of a government entity; or
(d) in the case of a disclosure to another person who is an employee of a State, a Territory or an authority of a State or Territory - the disclosure:
(i) is to the other person for use, in the course of the performance of the duties of that employment, in relation to the performance or exercise of the functions or powers of a government entity; and
(ii) is in accordance with an agreement, about corporate regulation, between the Commonwealth, the States, the Northern Territory and the Australian Capital Territory; or
(e) in the case of a disclosure - each person to whom the information relates consents to the disclosure; or
(f) in the case of a disclosure - the disclosure is in accordance with the disclosure framework.Note: A defendant bears an evidential burden in relation to the matters in subsection (3): see subsection 13.3(3) of the Criminal Code .
SECTION 1270M AUTHORISATION OF RECORDING OR DISCLOSURE
1270M(1)
A person is not liable to any proceedings for contravening a secrecy provision in respect of a recording or disclosure authorised under subsection 1270L(3) , unless the secrecy provision is a designated secrecy provision.
1270M(2)
A secrecy provision is a provision that:
(a) is a provision of a law of the Commonwealth (other than this Act); and
(b) prohibits or regulates the use or disclosure of information.
1270M(3)
A designated secrecy provision is any of the following:
(a) sections 18 to 18B and 92 of the Australian Security Intelligence Organisation Act 1979 ;
(b) section 34 of the Inspector-General of Intelligence and Security Act 1986 ;
(c) sections 39 to 41 of the Intelligence Services Act 2001 ;
(d) section 8WB of the Taxation Administration Act 1953 ;
(e) a provision of a law of the Commonwealth prescribed by rules made for the purposes of this paragraph under section 1270T ;
(f) a provision of a law of the Commonwealth of a kind prescribed by rules made for the purposes of this paragraph under section 1270T . SECTION 1270N PREVENTING DISCLOSURE OF PARTICULAR PROTECTED INFORMATION
1270N(1)
If:
(a) a person applies to the Registrar for particular protected information relating to the person not to be disclosed; and
(b) the Registrar is satisfied that it is not appropriate to disclose that information;a disclosure of that information is taken, for the purposes of this Act, not to be in accordance with the disclosure framework.
1270N(2)
Without limiting section 1270K , the disclosure framework may provide for:
(a) how applications referred to in paragraph (1)(a) are to be made; and
(b) how those applications are to be decided. SECTION 1270P AUTHORISATION FOR PURPOSES OF PRIVACY ACT
1270P
A disclosure of personal information (within the meaning of the Privacy Act 1988 ) is taken to be authorised by law for the purposes of paragraph 6.2(b) of Schedule 1 to that Act if:
(a) the information is protected information; and
(b) the disclosure is authorised by subsection 1270L(3) of this Act. SECTION 1270Q DISCLOSURE TO A COURT
1270Q
A person is not to be required:
(a) to produce to a court any document that:
(i) contains protected information; and
(ii) was made or given under, or for the purposes of, this Act; and
(iii) was obtained by the person in the course of the person ' s official employment; or
(b) to disclose to a court any protected information that the person obtained in the course of the person ' s official employment;unless the production or disclosure is necessary for the purpose of giving effect to a taxation law or an Australian business law.
Subdivision D - Miscellaneous
SECTION 1270R EXTRACTS OF INFORMATION TO BE ADMISSIBLE IN EVIDENCE
1270R(1)
In any proceedings, a document, or a copy of a document, that purports (irrespective of the form of wording used) to be an extract of information held by the Registrar under, or for the purposes of, this Act:
(a) is proof, in the absence of evidence to the contrary, of information that is stated in it and that purports to be held by the Registrar; and
(b) is admissible without any further proof of, or the production of, the original;if it does not appear to the Court to have been revised or tampered with in a way that affects, or is likely to affect, the information.
1270R(2)
The Registrar may give a person a certified copy of, or extract from, the information held by the Registrar under, or for the purposes of, this Act on payment of the fee (if any) prescribed by rules made under section 1270T .
1270R(3)
In any proceedings, the certified copy:
(a) is prima facie evidence of information that is stated in it and that purports to be held by the Registrar under, or for the purposes of, this Act; and
(b) is admissible without any further proof of, or the production of, the original.
1270R(4)
This section does not limit the manner in which evidence may be adduced, or the admissibility of evidence, under the Evidence Act 1995 . SECTION 1270S ANNUAL REPORT
1270S
Each annual report by the Registrar for a period must include information about the performance of the Registrar ' s functions and exercise of the Registrar ' s powers under, or for the purposes of, this Act during that period. SECTION 1270T RULES
1270T(1)
The Minister may, by legislative instrument, make rules under this section prescribing matters:
(a) required or permitted by this Division to be prescribed by rules made under this section; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Division.
1270T(2)
To avoid doubt, rules made under this section may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.Division 2 - Registers kept by ASIC]
ASIC must, subject to this Act, keep such registers as it considers necessary in such form as it thinks fit.
[ CCH Note: S 1274(1) will be amended by No 69 of 2020, s 3, Sch 1[1221], by substituting " may " for " must " (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
A person may:
(a) inspect any document lodged with ASIC, not being:
(iaa) a notice lodged under subsection 205D(3) ; or
(iab) information of the kind specified under subsection 1212(4) or 1213(4) (information included in, or accompanying, applications in relation to passport funds); or[ CCH Note: Regulation 10.25.02(3)(j) (which was effective 1 March 2017) provides that the amendments made by No 11 of 2016, s 3, Sch 2[213] apply in relation to external administrations on and after 1 September 2017.]
(i) an application under section 1279 (application for registration as an auditor), or section 20-5 of Schedule 2 (application for registration as a liquidator); or
(ia) a document lodged under a provision of Chapter 7 (other than subsection 792C(1) , section 1015B or section 1015D ); or
(ii) a document lodged under section 1287 (notification of matters by registered auditors), 1287A (annual statements by registered auditors), 30-1 of Schedule 2 (annual liquidator returns) or 35-1 of Schedule 2 (notice of significant events); or
(iii) a document lodged under paragraph 1296(2)(b) ; or
(iv) a report made or lodged under section 422 , 438D or 533 ; or
(iva) a disclosure document lodged under section 718 , or a supplementary or replacement document lodged under section 719 , in relation to an offer of an ESS interest, in a company (within the meaning of the Income Tax Assessment Act 1997 ), if the conditions set out in subsection (2AA) are satisfied; or
(ivb) an industry notice lodged under subsection 40-100(1) of Schedule 2 ; or
(v) a document that has been destroyed or otherwise disposed of; or
(b) require a certificate of the registration of a company or any other certificate authorised by this Act to be given by ASIC; or
(c) require a copy of or extract from any document that the person is entitled to inspect pursuant to paragraph (a) or any certificate referred to in paragraph (b) to be given, or given and certified, by ASIC.
[ CCH Note 1: S 1274(2) will be amended by No 69 of 2020, s 3, Sch 1[1222] - [ 1225], by repealing para (a)(iaa), omitting " (other than subsection 792C(1), section 1015B or section 1015D) " in para (a)(ia), " 1287 (notification of matters by registered auditors), " and " , 30-1 of Schedule 2 (annual liquidator returns) " in para (a)(ii) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
[ CCH Note 2: S 1274(2) will be amended by No 69 of 2020, s 3, Sch 1[1226], by repealing para (a)(iva) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
[ CCH Note 3: S 1274(2) will be amended by No 69 of 2020, s 3, Sch 1[1227], by substituting para (b) (effective 22 June 2022 or a day or days to be fixed by Proclamation). Para (b) will read:
(b) require a certificate authorised by this Act to be given by ASIC; or.]
View history note
Hide history noteFor the purposes of subparagraph (2)(a)(iva), the conditions are the following:
(a) the offer is under an employee share scheme (within the meaning of the Income Tax Assessment Act 1997 );
(b) the disclosure document or replacement document being lodged, or the disclosure document as supplemented by the supplementary document being lodged, states that the ESS interest, in the company (within the meaning of that Act) (the issuing company ), will:
(i) be made available only to employees of the issuing company or a subsidiary (within the meaning of that Act) of the issuing company; and
(ii) relate only to ordinary shares;
(c) no equity interests in any of the following companies are listed for quotation in the official list of any approved stock exchange at the end of the issuing company ' s most recent income year (the pre-lodgement year ) before the income year in which the disclosure document or replacement document, or the disclosure document being supplemented by the supplementary document, is lodged:
(i) the issuing company;
(ii) any subsidiary (within the meaning of that Act) of the issuing company at the end of the pre-lodgement year;
(iii) any holding company of the issuing company at the end of the pre-lodgement year;
(iv) any subsidiary (within the meaning of that Act) of a holding company of the issuing company at the end of the pre-lodgement year;
(d) the issuing company and each of the other companies mentioned in paragraph (c) were incorporated by or under an Australian law or foreign law less than 10 years before the end of the pre-lodgement year;
(e) the issuing company had an aggregated turnover not exceeding $50 million for the pre-lodgement year.
Subsection 83A-33(7) of the Income Tax Assessment Act 1997 also applies for the purposes of subsection (2AA) of this section.
For the purposes of subsections (2) and (5), a document given to ASIC by a market operator (whether or not pursuant to a provision of this Act) that contains information that the market operator has made available to participants in the market is taken to be a document lodged with ASIC.
Note: For example, a document given to ASIC for the purposes of subsection 792C(1) will be covered by this subsection.
[ CCH Note: S 1274(2A) will be repealed by No 69 of 2020, s 3, Sch 1[1228] (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
For the purposes of subsections (2) and (5), information or a copy of a document that is not required to be lodged with ASIC because of section 601CDA or 601CTA is taken to be a document lodged with ASIC if an authority mentioned in the section has given the information or document to ASIC.
[ CCH Note: S 1274(2B) will be repealed by No 69 of 2020, s 3, Sch 1[1228] (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
For the purposes of subsections (2) and (5), information or a copy of a document that is taken to be lodged with ASIC because of paragraph 1200D(2)(b) or 1200G(10)(b) is taken to be a document lodged with ASIC if an authority mentioned in section 601CDA or 601CTA has given the information or document to ASIC.
[ CCH Note: S 1274(2C) will be repealed by No 69 of 2020, s 3, Sch 1[1228] (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
For the purposes of subsections (2) and (5), each of the following is taken to be a document lodged with ASIC if a copy has been given to ASIC by APRA:
(a) benefit fund rules that have been approved by APRA under section 16L of the Life Insurance Act 1995 ;
(b) an amendment of benefit fund rules that has been approved by APRA under section 16Q of the Life Insurance Act 1995 ;
(c) consequential amendments of a company ' s constitution that have been approved by APRA under section 16U or 16V of the Life Insurance Act 1995 .
If a reproduction or transparency of a document or certificate is produced for inspection, a person is not entitled pursuant to paragraph (2)(a) to require the production of the original of that document or certificate. 1274(4)
The reference in paragraph (2)(c) to a document or certificate includes, where a reproduction or transparency of that document or certificate has been incorporated with a register kept by ASIC, a reference to that reproduction or transparency and, where such a reproduction or transparency has been so incorporated, a person is not entitled pursuant to that paragraph to a copy of or extract from the original of that document or certificate. 1274(4A)
A person is not entitled under paragraph (2)(a) to require the production of the original of a document or certificate if ASIC keeps by means of a mechanical, electronic or other device a record of information set out in the document or certificate and:
(a) ASIC produces to the person for inspection a writing that sets out what purports to be the contents of the document or certificate; or
(b) ASIC causes to be displayed for the person what purports to be the contents of the document or certificate and, as at the time of the displaying, the person has not asked for the production of a writing of the kind referred to in paragraph (a). 1274(4B)
Where:
(a) a person makes under paragraph (2)(c) a requirement that relates to a document or certificate; and
(b) ASIC keeps by means of a mechanical, electronic or other device a record of information set out in the document or certificate; and
(c) pursuant to that requirement, ASIC gives a writing or document that sets out what purports to be the contents of:
(i) the whole of the document or certificate; or
(ii) a part of the document or certificate;
then, for the purposes of that paragraph, ASIC is taken to have given, pursuant to that requirement:
(d) if subparagraph (c)(i) applies - a copy of the document or certificate; or
(e) if subparagraph (c)(ii) applies - an extract from the document or certificate setting out that part of it. 1274(4C)
Where:
(a) the requirement referred to in paragraph (4B)(a) includes a requirement that the copy or extract be certified; and
(b) pursuant to that requirement, ASIC gives a writing or document as mentioned in paragraph (4B)(c);
then:
(c) ASIC may certify that the writing or document sets out the contents of the whole or part of the document or certificate, as the case requires; and
(d) the writing or document is, in a proceeding in a court, admissible as prima facie evidence of the information contained in it. 1274(4D)
ASIC may edit from a statement of affairs any information that ASIC is satisfied is commercial-in-confidence, before allowing a person to inspect the statement, or giving a copy or extract of the statement to a person, under subsection (2).
A statement of affairs is a statement or report required to be prepared under one of the following provisions:
(a) subsection 421A(1) ;
(b) paragraph 429(2)(b) ;
(c) subsection 438B(2) ;
(d) subsection 475(1) or (2) ;
(e) subsection 494(2) ;
(f) subsection 497(4) .
Information is commercial-in confidence if:
(a) the disclosure of the information could unreasonably affect a person, or a business or action related to a person, in an adverse manner; and
(b) the information is not in the public domain; and
(c) the information is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and
(d) the information is not readily discoverable.
Despite subsection (2), a person is not entitled to inspect, or to require a copy or an extract of, any information in a statement of affairs that has been edited from the statement under subsection (4D).
A copy of or extract from any document lodged with ASIC, and certified by ASIC, is, in any proceeding, admissible in evidence as of equal validity with the original document.
Note: See also subsection (2A) for when certain documents are taken to have been lodged with ASIC.
The reference in subsection (5) to a document includes, where a reproduction or transparency of that document has been incorporated with a register kept by ASIC, a reference to that reproduction or transparency. 1274(7)
In any proceeding:
(a) a certificate by ASIC that, at a date or during a period specified in the certificate, no company was registered under this Act by a name specified in the certificate is to be received as prima facie evidence that at that date or during that period, as the case may be, no company was registered by that name under this Act; and
(b) a certificate by ASIC that a requirement of this Act specified in the certificate:
(i) had or had not been complied with at a date or within a period specified in the certificate; or
is to be received as prima facie evidence of matters specified in the certificate; and
(ii) had been complied with at a date specified in the certificate but not before that date;
(c) a certificate by ASIC that, during a period specified in the certificate, a particular company was registered, or taken to be registered, under this Act is to be received as prima facie evidence that, during that period, that company was registered under this Act. 1274(7A)
A certificate issued by ASIC stating that a company has been registered under this Act is conclusive evidence that:
(a) all requirements of this Act for its registration have been complied with; and
(b) the company was duly registered as a company under this Act on the date specified in the certificate. 1274(8)
If ASIC is of opinion that a document submitted for lodgment:
(a) contains matter contrary to law; or
(b) contains matter that, in a material particular, is false or misleading in the form or context in which it is included; or
(c) because of an omission or misdescription has not been duly completed; or
(d) contravenes this Act; or
(e) contains an error, alteration or erasure;
ASIC may refuse to register or receive the document and may request:
(f) that the document be appropriately amended or completed and resubmitted; or
(g) that a fresh document be submitted in its place; or
(h) where the document has not been duly completed, that a supplementary document in the prescribed form be lodged.
[ CCH Note: S 1274(8) will be amended by No 69 of 2020, s 3, Sch 1[1229] and [ 1230], by inserting " or the Registrar " after " ASIC " (wherever occurring) and substituting " document be lodged: (i) with ASIC in the prescribed form; or (ii) with the Registrar in accordance with any requirements of the data standards. " for all the words after " supplementary " in para (h) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
ASIC may require a person who submits a document for lodgment to produce to ASIC such other document, or to give to ASIC such information, as ASIC thinks necessary in order to form an opinion whether it may refuse to receive or register the first-mentioned document.
[ CCH Note: S 1274(9) will be amended by No 69 of 2020, s 3, Sch 1[1231], by inserting " or the Registrar " after " ASIC " (wherever occurring) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
ASIC may, if in the opinion of ASIC it is no longer necessary or desirable to retain them, destroy or dispose of:
(a) in relation to a body corporate:
(i) any return of allotment of shares for cash that has been lodged for not less than 2 years; or
(ii) any balance-sheet that has been lodged for not less than 7 years or any document creating or evidencing a charge, or the complete or partial satisfaction of a charge, where a memorandum of satisfaction of the charge has been registered for not less than 7 years; or
(iii) any other document (other than the constitution or any other document affecting it) that has been lodged or registered for not less than 15 years; or
[ CCH Note: There is no paragraph 1274(10)(b).]
(c) any document a transparency of which has been incorporated with a register kept by ASIC.
If a body corporate or other person, having made default in complying with:
(a) any provision of this Act or of any other law that requires the lodging in any manner of any return, account or other document or the giving of notice to ASIC of any matter; or
(b) any request of ASIC to amend or complete and resubmit any document or to submit a fresh document;
fails to make good the default within 14 days after the service on the body or person of a notice requiring it to be done, a court may, on an application by any member or creditor of the body or by ASIC, make an order directing the body or any officer of the body or the person to make good the default within such time as is specified in the order.
[ CCH Note: S 1274(11) will be amended by No 69 of 2020, s 3, Sch 1[1232] and [ 1233], by inserting " with ASIC or the Registrar " after " lodging " in para (a) and " or the Registrar " after " ASIC " (wherever occurring) (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
Any such order may provide that all costs of and incidental to the application are to be borne by the body or by any officers of the body responsible for the default or by the person. 1274(13)
A person must not contravene an order made under subsection (11). 1274(14)
Nothing in this section prejudices the operation of any law imposing penalties on a body corporate or its officers or on another person in respect of a default mentioned in subsection (11). 1274(15)
Where information about a person is included on a register kept by ASIC, ASIC may at any time, in writing, require that person to give ASIC specified information about the person, being information of the kind included on that register.
[ CCH Note: S 1274(15A) will be inserted by No 69 of 2020, s 3, Sch 1[1234] (effective 22 June 2022 or a day or days to be fixed by Proclamation). S 1274(15A) will read:
1274(15A)
If information about a person is held by the Registrar, the Registrar may at any time require that person to give the Registrar information about the person, being information of the kind held by the Registrar.]
The person must provide the information within such reasonable period, and in such form, as are specified by ASIC.
[ CCH Note: S 1274(16) will be amended by No 69 of 2020, s 3, Sch 1[1235] and [ 1236], by substituting " A person to whom subsection (15) or (15A) applies " for " The person " and inserting " or the Registrar, as the case requires " at the end of subsection (effective 22 June 2022 or a day or days to be fixed by Proclamation).]
An offence based on subsection (9), (13) or (16) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code .
[ CCH Note: Div 3 will be inserted by No 69 of 2020, s 3, Sch 1 [ 11] (effective 22 June 2022 or a day or days to be fixed by Proclamation). Div 3 will read:
Division 3 - Miscellaneous ]
[
CCH Note:
S 1274AAA will be inserted by No 69 of 2020, s 3, Sch 1[1237] (effective 22 June 2022 or a day or days to be fixed by Proclamation). S 1274AAA will read:
SECTION 1274AAA EVIDENTIARY VALUE OF CERTIFICATE OF REGISTRATION
1274AAA
A certificate issued by the Registrar stating that a company has been registered under this Act is conclusive evidence that:
(a)
all requirements of this Act for its registration have been complied with; and
(b)
the company was duly registered as a company under this Act on the date specified in the certificate.]
Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited
CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.
The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.
