Australian Securities and Investments Commission Regulations 1990 (Cth)

Australian Securities and Investments Commission Regulations 1990

Statutory Rules 1990 No. 454 as amended

made under the

Australian Securities and Investments Commission Act 1989

This compilation was prepared on 15 March 2000

taking into account amendments up to SR 2000 No. 10

Prepared by the Office of Legislative Drafting

Attorney-General’s Department, Canberra

Australian Securities and Investments Commission Regulations 1990

Statutory Rules 1990 No. 454 as amended

made under the

Australian Securities and Investments Commission Act 1989

Contents

Page

Part 1Preliminary

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• •

Part 2General

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Part 3Panel Procedures

Division 1Preliminary

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Division 2Applications

• •
• •
• •

Division 3Decisions to conduct proceedings

• •
• •

Division 4Submissions

• •
• •
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• •
• •
• •
• •
• •

Division 5Conferences

• •
• •
• •
• •
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Division 6Other matters

• •
• •

  

Part 1Preliminary

  

1Name of regulations [see Note 1]

 These regulations are the Australian Securities and Investments Commission Regulations 1990.

2Definitions

 In these regulations, unless the contrary intention appears:

Form means a form set out in Schedule 1.

the Act means the Australian Securities and Investments Commission Act 1989.

Part 2General

  

3Prescribed agencies (Act, s 18 (2) (d))

 For paragraph 18 (2) (d) of the Act, each of the following agencies is prescribed:

• (a)

  the Australian Competition and Consumer Commission;

• (b)

  the Australian Prudential Regulation Authority;

• (c)

  the Australian Taxation Office;

• (d)

  the Australian Transaction Reports and Analysis Centre;

• (e)

  an authority of a State or Territory having functions and powers similar to those of the Director of Public Prosecutions;

• (f)

  the police force or service of each State and the Northern Territory;

• (g)

  the Department of Fair Trading of New South Wales;

• (h)

  the Office of Fair Trading and Business Affairs of Victoria;

• (i)

  the Office of Consumer Affairs of Queensland;

• (j)

  the Ministry of Fair Trading of Western Australia;

• (k)

  the Office of Consumer and Business Affairs of South Australia;

• (l)

  the Office of Consumer Affairs and Fair Trading of Tasmania;

• (m)

  the Consumer Affairs Bureau of the Australian Capital Territory;

• (n)

  the Fair Trading Group of the Northern Territory.

4Form of notice requiring assistance and appearance for examination

 For the purposes of subsection 19 (2) of the Act, Form 1 is prescribed.

5Notice to produce books

 A notice under section 30, subsection 31 (1) or 32 (1) or section 32A or 33 of the Act to produce books must be in accordance with Form 2.

6Evidence of authority

 If:

• (a)

  a member or staff member produces a document issued by the Commission; and

• (b)

  the document states that the person is authorised by the Commission under section 34 of the Act;

 the document is evidence of:

• (c)

  the authority of the person to require other persons to produce books in accordance with subsection 34 (2) of the Act; and

• (d)

  any limitation on that authority that is specified in the document in accordance with that subsection.

7Summons to witnesses to appear before Commission

 For the purposes of subsection 58 (1) of the Act, Form 3 is prescribed.

8Allowances and expenses payable to examinees and witnesses

 For the purposes of subsections 89 (1) and (2) of the Act, a person who appears:

• (a)

  for examination under section 19 of the Act; or

• (b)

  pursuant to a summons issued under section 58 of the Act;

 is entitled to be paid allowances and expenses in accordance with Schedule 2.

8ACommission may disclose confidential information to certain bodies corporate

 The bodies corporate listed in Schedule 3 are specified for the purposes of subsection 127 (4C) of the Act.

11Summons to witnesses to appear before Disciplinary Board

 If a person is summoned under subsection 217 (1) of the Act, the summons must be in accordance with Form 3.

12Allowances and expenses payable for attendance at hearings of Disciplinary Board

 For the purposes of subsection 218 (4) of the Act, a person who attends at a hearing pursuant to a summons issued under subsection 217 (1) of the Act is entitled to be paid allowances and expenses in accordance with Schedule 2.

Part 3Panel Procedures

Division 1Preliminary

13Objects of this Part

 The objects of this Part are to ensure that Panel proceedings are:

• (a)

  as fair and reasonable; and

• (b)

  conducted with as little formality; and

• (c)

  conducted in as timely manner;

 as the requirements of this Part and the relevant national scheme law, and a proper consideration of the matters before the Panel, permit.

14Application of this Part

 This Part applies to Panel proceedings in addition to the requirements of a relevant national scheme law that applies to the proceedings.

15Interpretation

 In this Part, unless the contrary intention appears:

application means an application under section 656A, 657C or 657EA of the Corporations Law.

brief, in relation to Panel proceedings, means the brief for the proceedings that is mentioned in paragraph 20 (b).

business day, in relation to a place, means any day except:

• (a)

  a Saturday or a Sunday; or

• (b)

  a day that is a public holiday or an Australian Public Service holiday in that place.

party means a party to Panel proceedings.

submission means a submission lodged with the Panel under a provision of this Part.

16Powers of Panel

• (1)

  In addition to any other provision of this Part, the Panel may:

  • (a)

    direct that 2 or more related matters are to be considered in Panel proceedings; and

  • (b)

    identify the issues to be considered by the Panel in its proceedings; and

  • (c)

    give directions to a person about:

    • (i)

      the manner in which a matter may be presented, either orally or in writing, to the Panel; and

    • (ii)

      the duration of the time in which the person may address the Panel or give evidence in Panel proceedings; and

  • (d)

    give directions to parties to lodge with the Panel specified documents relating to Panel proceedings; and

  • (e)

    give directions to persons about the time at or before which documents must be lodged with the Panel; and

  • (f)

    extend the time at or before which documents must be lodged with the Panel; and

  • (g)

    invite a person who is not a party to make a submission in relation to Panel proceedings; and

  • (h)

    permit a person to amend or withdraw information or evidence given to, or a document lodged with, the Panel for the purposes of Panel proceedings; and

  • (i)

    direct that Panel proceedings be suspended for a period determined by the Panel; and

  • (j)

    direct that Panel proceedings be deferred until a day determined by the Panel.

• (2)

  In the performance of its functions and the exercise of its powers in relation to Panel proceedings, the Panel:

  • (a)

    is not bound by the rules of evidence; and

  • (b)

    must consider all relevant information contained in:

    • (i)

      a submission that is lodged with the Panel; and

    • (ii)

      other evidence that is given to the Panel; and

  • (c)

    must act:

    • (i)

      as fairly and reasonably; and

    • (ii)

      with as little formality; and

    • (iii)

      having regard to the time available before the decision must be made, in as timely a manner;

   as the requirements of this Part, and the relevant national scheme law, and a proper consideration of the matters before the Panel permit.

Division 2Applications

18Reference of matters to the Commission by the Panel

• (1)

  The Panel may refer a matter to the Commission for the Commission to consider with a view to making an application.

• (2)

  If the Panel refers a matter to the Commission, the reference must be made:

  • (a)

    in writing; and

  • (b)

    in sufficient detail to allow the Commission to make a decision in relation to the matter.

19Making of applications

 An application to the Panel must be in the form approved by the Panel.

20Consideration of applications

 As soon as practicable after receiving an application, the Panel must:

• (a)

  decide whether to conduct proceedings in relation to the application; and

• (b)

  if the Panel decides to conduct proceedings — prepare a brief setting out:

  • (i)

    a general description of the matters to be examined in the Panel proceedings; and

  • (ii)

    the issues to be addressed in submissions for the proceedings.

Division 3Decisions to conduct proceedings

21Notice of decision

• (1)

  If the Panel decides, under regulation 20, to conduct proceedings, the Panel must, as soon as practicable after making the decision, notify the decision to:

  • (a)

    the Commission; and

  • (b)

    each company to which, or person to whom, the relevant application relates.

• (2)

  If the Panel decides, under regulation 20, not to conduct proceedings, the Panel must, as soon as practicable after making the decision:

  • (a)

    notify the decision to the Commission; and

  • (b)

    notify the decision to each company and person to whom the relevant application relates; and

  • (c)

    include in each notice the reasons for the decision.

22Decision to hold inquiry

• (1)

  If the Panel decides to conduct proceedings, it must, after receiving the application:

  • (a)

    give a copy of the brief for the proceedings to:

    • (i)

      the Commission; and

    • (ii)

      to each company to which, or person to whom, the application relates; and

  • (b)

    invite each body or person mentioned in paragraph (a) to lodge with the Panel a written submission addressing the issues identified in the brief.

• (2)

  If the Panel decides to conduct proceedings it may give written notice of the decision to any other body or person.

• (3)

  The Panel must:

  • (a)

    give a copy of the brief to the body or person; and

  • (b)

    invite the body or person to lodge with the Panel a written submission addressing the issues identified in the brief that are specified in the invitation.

Division 4Submissions

23Expressions of interest by non-parties

• (1)

  The Panel may give notice to a person, or to the public at large, of a decision by the Panel to conduct proceedings.

• (2)

  A notice must include a description of the nature of the proceedings.

• (3)

  A notice may invite a person who is not a party to the proceedings to give, within a time allowed by the Panel, a written expression of interest in the proceedings:

  • (a)

    stating the nature of the interest of the person in the proceedings; and

  • (b)

    setting out the reasons why the Panel should consider a written submission of the person in relation to the proceedings.

• (4)

  The Panel may, by written notice to the person, vary the period mentioned in subregulation (3).

24Panel may accept submissions from persons expressing interest

• (1)

  As soon as practicable after the Panel receives the expression of interest of a person, the Panel must acknowledge the receipt in writing.

• (2)

  If the Panel decides to consider the written submission of a person in the proceedings, the Panel must give to the person a copy of the brief for the proceedings.

• (3)

  The Panel must invite the person to lodge with the Panel a written submission addressing the issues identified in the brief.

• (4)

  If the Panel decides not to consider any written submission of the person in the proceedings, the Panel must advise the person of the decision and of the reasons for the decision.

25Submissions

 A submission made by a person to proceedings of the Panel must:

• (a)

  be in the form approved by the Panel; and

• (b)

  if the Panel has given to the person a copy of the brief and invited the person to comment on an issue identified in the brief, address that issue.

26Disregard of certain submissions

• (1)

  The Panel may disregard any matter in a submission that:

  • (a)

    is not in accordance with regulation 25; or

  • (b)

    is frivolous or vexatious.

• (2)

  The Panel must disregard any matter in a submission that is not relevant to the proceedings.

27Abuse of Panel procedures to be noted

 If a matter in a written submission made to the Panel is frivolous or vexatious, the Panel must place on the submission a note stating:

• (a)

  that the Panel has disregarded the matter in accordance with paragraph 26 (1) (b); and

• (b)

  the reasons why the Panel believes the matter to be frivolous or vexatious.

28Lodgment and distribution of submissions

• (1)

  A submission for Panel proceedings must be lodged with the Panel within the time allowed by the Panel.

• (2)

  As soon as practicable after the Panel receives a submission, the Panel must give a copy of the submission to each party.

• (3)

  A person who receives a copy of a submission relating to an application may lodge with the Panel no more than 1 submission that:

  • (a)

    rebuts a matter, or matters, in the first-mentioned submission; and

  • (b)

    does not include material that is not necessary to support the rebuttal.

• (5)

  A submission lodged with the Panel is taken not to include any additional material that is not lodged at the same time as the submission.

30Panel may invite further submissions

• (1)

  At any time during Panel proceedings, the Panel may request a party to lodge with the Panel a submission that addresses a matter specified in the request.

• (2)

  The Panel may give a copy of the submission to each party.

• (3)

  The Panel may direct a person who receives a copy of a submission to lodge, at or before a time specified in writing by the Panel, with the Panel not more than 1 submission that:

  • (a)

    rebuts a matter, or matters, in the first-mentioned submission; and

  • (b)

    does not include material that is not necessary to support the rebuttal.

34Submissions that are not lodged in time

 If a person does not lodge a document with the Panel by the time of lodgment specified in this Part in relation to the document, the Panel may continue with the proceedings without regard to the document.

Division 5Conferences

35Purpose of conferences

• (1)

  The Panel may conduct a conference during Panel proceedings to:

  • (a)

    clarify matters arising from documents in the possession of the Panel relating to the proceedings; or

  • (b)

    resolve inconsistent statements:

    • (i)

      in documents in the possession of the Panel relating to the proceedings; or

    • (ii)

      made orally to the Panel; or

  • (c)

    otherwise inform itself on matters relating to the proceedings.

• (2)

  For the purposes of these regulations, a conference is taken to be part of Panel proceedings.

37Conduct of conferences

• (1)

  The President may convene a conference.

• (2)

  The President:

  • (a)

    must determine the place where, and the time when, a conference is to convene; and

  • (b)

    must give written notice of that time and place to each party.

38Procedures at conferences

• (1)

  As soon as practicable before a conference, the Panel must give to a person who may attend the conference a statement setting out:

  • (a)

    the matters which the Panel proposes to raise at the conference; and

  • (b)

    any other matter of which the Panel wishes the person to be aware for the purposes of the conference.

• (2)

  At a conference with a person, the Panel is not obliged to consider matters that are not set out in the statement given to the person before the conference.

• (3)

  The Panel must make and retain a transcript of the proceedings of a conference.

• (4)

  If a person who may attend a conference does not attend:

  • (a)

    the Panel may conduct the conference in the absence of the person; and

  • (b)

    the person may, before the day on which the conference begins, lodge with the Panel any written submission that addresses the matters set out in the statement mentioned in subregulation (1); and

  • (c)

    the Panel must consider the submission in the proceedings.

39Addresses to the Panel at conferences

• (1)

  A person who attends a conference may address the Panel.

• (2)

  Subject to subregulation (3), the address of a person to the Panel must only deal with matters set out in the statement given by the Panel under subregulation 38 (1) for the purposes of the conference.

• (3)

  If the Panel invites a person at a conference to address the Panel on a matter, the person may address the Panel on the matter at the conference.

40Witnesses

• (1)

  At a conference, a person must not ask a witness about a matter unless it is a matter on which the person may address the Panel in accordance with regulation 39.

• (2)

  A witness must not make a statement on a matter at a conference unless it is a matter on which the witness, or the person who called the witness to give evidence, may address the Panel in accordance with regulation 39.

41Misbehaviour at conferences

 The Panel may exclude from a conference a person whose behaviour has a disruptive effect on the conference.

Division 6Other matters

42Summons to witnesses by the Panel

 For the purposes of subsection 192 (1) of the Act (which provides for the summons of a person by the Panel), Form 3 is prescribed.

43Allowances and expenses payable for attendances

 For the purposes of subsection 192 (6) of the Act (which provides for allowances and expenses to be paid in relation to Panel proceedings), a person who appears at Panel proceedings in response to a summons issued under section 192 of the Act is entitled to be paid allowances and expenses in accordance with Schedule 2.

Schedule 1Forms

(regulation 2)

Form 1Notice requiring appearance at an examination or reasonable assistance in connection with an investigation

(regulation 4)

Australian Securities and Investment Commission Regulations 1990

Australian Securities and Investments Commission

NOTICE REQUIRING APPEARANCE AT AN EXAMINATION OR REASONABLE ASSISTANCE IN CONNECTION WITH AN INVESTIGATION

To: 1

In relation to an investigation of 2

you are hereby notified that under subsection 19 (2) of the ASC Law you are required:

(a)

to appear at 3 on

 4 at

 5 before 6

 for examination on oath or affirmation and to answer questions put to you in relation to the investigation; and

• (b)

  to give the Australian Securities and Investments Commission all reasonable assistance in connection with the investigation.

Please note the provisions of subsection 23 (1) of the ASC Law (relating to legal representation) and section 68 of the ASC Law (relating to self‑incrimination). The effect of those provisions is set out at the end of this form.

Dated 4.

Signature of person authorised

by the Commission to conduct the

examination:

 

NOTICE OF RELEVANT STATUTORY PROVISIONS

1. Subsection 23 (1) of the ASC Law provides that a person who is required to submit to an examination is entitled to have his or her lawyer attend the examination. It also provides that the person’s lawyer may address the inspector or ask the person questions about matters raised with the person by the inspector.

2. (1) You must not fail to comply with this notice without reasonable excuse (see subsection 63 (1) of the ASC Law).

(2)

It is not a reasonable excuse for failure to comply with this notice that giving information or signing a record or producing a book might tend to incriminate you or expose you to a penalty (see subsection 68 (1) of the ASC Law).

(3)

However, if:

• (a)

  before making an oral statement or signing a record in answer to this notice you claim that making the statement or signing the record might tend to incriminate you or expose you to a penalty; and

• (b)

  making the statement or signing the record might in fact tend to incriminate you or expose you to a penalty;

 the statement, or the fact that you have signed the record, is not admissible in evidence in any criminal proceedings, or proceedings for the imposition of a penalty, against you other than proceedings in respect of the falsity of the statement or the record.

(4) The right to make a claim of this kind is not available to a body corporate (see subsections 68 (2) and (3) of the ASC Law).

 

1 insert full name and address of the person to whom the notice is to be given

2 insert the nature of the matter to which the investigation relates

3 insert time of day

4 insert date

5 insert full particulars of the address of the place at which the requirement is to be satisfied

6 insert full name of the person conducting the examination

Form 2Notice requiring the production of books

(regulation 5)

Australian Securities and Investment Commission Regulations 1990

Australian Securities and Investments Commission

NOTICE REQUIRING THE PRODUCTION OF BOOKS

To: 1

In relation to 2

you are hereby notified that, under section 303/subsection 31 (1)3/subsection 32 (1)3/section 32A3/section 333 of the ASC Law you are required to produce to

 4 at 5

on 6 at 7

the following books:

 8

Dated 6.

Signature of the person requiring

the production of books:

 

1insert full name and address of the person to whom the notice is to be given

2insert the nature of the matter to which the request for production of books relates

3strike out or delete if inapplicable

4insert the full name of the person to whom the books are to be produced

5insert time of day

6insert date

7insert full particulars of the address of the place at which the books are to be produced

8insert description(s) of the books that are to be produced

Form 3Summons to witness

(regulations 7, 11 and 42)

Australian Securities and Investment Commission Regulations 1990

Australian Securities and Investments Commission

SUMMONS TO WITNESS

In the matter of 1

To: 2

at 4you are hereby summoned to appear before the Australian Securities and Investments Commission3/Corporations and Securities Panel3/Companies Auditors and Liquidators Disciplinary Board3

 

on 5

at 6 and thereafter to attend from day to day until the hearing in this matter is completed or you are excused or released from further attendance by a member of the Commission3/Panel3/Board3.

3You are required to produce the following document(s) at the hearing:

 7

Dated 4.

Signature of person authorised by

the Commission3/Panel3/Board3 to issue summons:

 

1insert description of matter

2insert full name and address of the person to be summoned to appear

3strike out or delete if inapplicable

4insert time of day

5insert date

6insert full particulars of the address of the place where the hearing is to be held

7insert description(s) of the documents that are to be produced at the hearing

Schedule 2Witnesses fees and allowances for expenses

(regulations 8, 12 and 43)

  

1. A person summoned to appear as a witness, because of his or her professional, scientific or other special skill or knowledge, before the Commission, the Panel or the Board must be paid:

• (a)

  if the person is remunerated in his or her occupation by wages, salary or fees — an amount equal to the amount of wages, salary or fees not paid to the person because of his or her attendance for that purpose; and

• (b)

  in any other case — an amount of not less than $81, or more than $407, for each day on which he or she so attends.

2. A person summoned to appear as a witness, other than a witness referred to in item 1, before the Commission, the Panel or the Board must be paid:

• (a)

  if the person is remunerated in his or her occupation by wages, salary or fees — an amount equal to the amount of wages, salary or fees not paid to the person because of his or her attendance for that purpose; and

• (b)

  in any other case — an amount of not less than $46, or more than $76, for each day on which he or she so attends.

3. A person summoned to appear as a witness before the Commission, the Panel or the Board must be paid a reasonable amount for allowances for:

• (a)

  transport between the usual place of residence of the person and the place that he or she attends for that purpose; and

• (b)

  if he or she is required to be absent overnight from his or her usual place of residence — meals and accommodation during the absence.

Schedule 3Bodies corporate to which information may be disclosed

(regulation 8A)

  

ASX Futures Exchange Pty Ltd

ASX Settlement and Transfer Corporation Pty Ltd

Australian Stock Exchange Limited

Options Clearing House Pty Limited

Sydney Futures Exchange Clearing House Pty Limited

Sydney Futures Exchange Limited

Notes to the Australian Securities and Investments Commission Regulations 1990

Note 1

The Australian Securities and Investments Commission Regulations 1990 (in force under the Australian Securities and Investments Commission Act 1989) as shown in this compilation comprise Statutory Rules 1990 No. 454 amended as indicated in the Tables below.

Table of Statutory Rules

Year and number	Date of notification in Gazette	Date of commencement	Application, saving or transitional provisions
1990 No. 454	21 Dec 1990	21 Dec 1990
1993 No. 208	3 Aug 1993	3 Aug 1993	—
1994 No. 301	6 Sept 1994	6 Sept 1994	—
1994 No. 443	30 Dec 1994	1 Jan 1995	—
1998 No. 294	7 Sep 1998	7 Sep 1998	—
1999 No. 190	1 Sept 1999	1 Sept 1999	—
2000 No. 10	10 Mar 2000	13 Mar 2000	—

Table of Amendments

ad. = added or inserted       am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Heading to Part 1..................	ad. 1994 No. 443
R. 1..........................................	rs. 1998 No. 294
R. 2..........................................	am. 1998 No. 294
Heading to Part 2..................	ad. 1994 No. 443
R. 3..........................................	rs. 1998 No. 294
am. 1999 No. 190
R. 5..........................................	am. 1998 No. 294
R. 8A.......................................	ad. 1994 No. 301
Rr. 9, 10..................................	rep. 1994 No. 443
Part 3 ..................................... (rr. 13–43)	ad. 1994 No. 443
Div. 1 of Part 3....................... (rr. 13–17)	ad. 1994 No. 443
Rr. 13, 14................................	ad. 1994 No. 443
rs. 2000 No. 10
Rr. 15, 16................................	ad. 1994 No. 443
am. 2000 No. 10
R. 17........................................	ad. 1994 No. 443
rep. 2000 No. 10
Div. 2 of Part 3....................... (rr. 18–20)	ad. 1994 No. 443
R. 18........................................	ad. 1994 No. 443
R. 19........................................	ad. 1994 No. 443
rs. 2000 No. 10
R. 20........................................	ad. 1994 No. 443
am. 2000 No. 10
Heading to Div. 3 of Part 3..	rs. 2000 No. 10
Div. 3 of Part 3...................... (rr. 21, 22)	ad. 1994 No. 443
Rr. 21, 22................................	ad. 1994 No. 443
am. 2000 No. 10
Div. 4 of Part 3....................... (rr. 23–34)	ad. 1994 No. 443
Rr. 23–26................................	ad. 1994 No. 443
am. 2000 No. 10
R. 27........................................	ad. 1994 No. 443
R. 28........................................	ad. 1994 No. 443
am. 2000 No. 10
R. 29,.......................................	ad. 1994 No. 443
rep. 2000 No. 10
R. 30........................................	ad. 1994 No. 443
am. 2000 No. 10
Rr. 31–33................................	ad. 1994 No. 443
rep. 2000 No. 10
R. 34........................................	ad. 1994 No. 443
am. 2000 No. 10
Div. 5 of Part 3....................... (rr. 35–41)	ad. 1994 No. 443
R. 35........................................	ad. 1994 No. 443
am. 2000 No. 10
R. 36........................................	ad. 1994 No. 443
rep 2000 No. 10
Rr. 37–39................................	ad. 1994 No. 443
am. 2000 No. 10
R. 40........................................	ad. 1994 No. 443
R. 41........................................	ad. 1994 No. 443
am. 2000 No. 10
Div. 6 of Part 3....................... (rr. 42, 43)	ad. 1994 No. 443
R. 42........................................	ad. 1994 No. 443
R. 43........................................	ad. 1994 No. 443
rs. 2000 No. 10
Heading to Schedule 1.........	rs. 1994 No. 443
Schedule 1.............................	am. 1993 No. 208
Forms 1, 2...........................	1990 No. 454
am. 1993 No. 208; 1998 No. 294
Form 3.................................	1990 No. 454
am. 1994 No. 443; 1998 No. 294
Heading to Schedule 2.........	rs. 1994 No. 443
am. 1999 No. 190
Schedule 3.............................	ad. 1994 No. 301