Corporations Act 2001

CHAPTER 9 - MISCELLANEOUS  

PART 9.1 - MATTERS RELATING TO HANDLING RECORDS AND INFORMATION  

Division 2 - Registers kept by ASIC  

SECTION 1274   REGISTERS  

1274(1)  
ASIC must, subject to this Act, keep such registers as it considers necessary in such form as it thinks fit.

1274(2)  
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.

1274(2AA)  

For 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.

1274(2AB)  

Subsection 83A-33(7) of the Income Tax Assessment Act 1997 also applies for the purposes of subsection (2AA) of this section.

1274(2A)  

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.

1274(2B)  

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.

1274(2C)  

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.

1274(2D)  

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 .

1274(3)  
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).

1274(4E)  

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) .

1274(4F)  

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.

1274(4G)  

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).

1274(5)  
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.

1274(6)  
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

(ii) had been complied with at a date specified in the certificate but not before that date;

is to be received as prima facie evidence of matters specified in the certificate; and

(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.

1274(9)  
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.

1274(10)  
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

(c) any document a transparency of which has been incorporated with a register kept by ASIC.

1274(11)  
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.

1274(12)  
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.

1274(16)  
The person must provide the information within such reasonable period, and in such form, as are specified by ASIC.

1274(17)  

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 .