Australian Securities Commission Regulations (Amendment) (Cth)
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I, The Governor-General of the Commonwealth of Australia, acting with the advice of the
Federal Executive Council and under section 4 of the
Dated 20 December 1994.
BILL HAYDEN
Governor-General
By His Excellency’s Command,
M. LAVARCH
Attorney-General
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1.1 These Regulations commence on 1 January 1995.
2.1 The Australian Securities Commission Regulations are amended as set out in these Regulations.
3.1 Before regulation 1, insert:
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4.1 Before regulation 3, insert:
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5.1 Omit the regulation.
6.1 Omit the regulation.
7.1 After regulation 12, insert:
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The objects of this Part are to ensure that:
(a) procedures followed in an inquiry held by the Panel are:
(i) as fair and reasonable; and
(ii) conducted with as little formality; and
(iii) conducted 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; and
(b) a decision resulting from an inquiry into the occurrence of unacceptable circumstances within the meaning of section 732 of the Corporations Law can be made by the Panel before the acquisition of the interest relating to the occurrence takes place.
This Part applies to an inquiry in addition to the requirements of a relevant national scheme law that applies to the inquiry.
In this Part, unless the contrary intention appears:
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(a) a Saturday or a Sunday; or
(b) a day that is a public holiday or an Australian Public Service holiday in that place;
(a) to make a declaration, an order or an interim order; or
(b) to continue an interim order;
(a) the Commission; or
(b) a company or person mentioned in an application under subsection 733 (1) or 734 (2) of the Corporations Law; or
(c) a person to whom notice is given under subregulation 22 (2);
(1) Subject to this Part, the Panel may:
(a) direct that 2 or more related matters are to be considered at a joint inquiry; and
(b) identify the issues to be considered by the Panel in an inquiry; 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 at an inquiry; and
(d) give directions to parties and interveners to lodge with the Panel specified documents relating to an inquiry; 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 or an intervener to make a submission to the Panel that relates to an inquiry; 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 an inquiry; and
(i) direct that an inquiry be suspended for a period determined by the Panel; and
(j) direct that an inquiry be deferred until a day determined by the Panel.
In the performance of its functions and the exercise of its powers in relation to an inquiry, 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.
(1) Subject to this Part, the procedure to be followed in an inquiry is to be determined by the Panel.
Subject to subregulation (3), as soon as practicable after the Panel makes a decision as a result of an inquiry, the Panel must give written notice of the decision, and of the reasons for it, to each party and to each intervener.
If the Panel reasonably believes, having regard to the matters set out in paragraphs 32 (2) (a), (b) and (c), that:
(a) in the case of a notice relating to a declaration—the interests of a person to whom the declaration relates will be adversely affected if a particular reason is, or particular reasons are, given to another person:
(i) who is a party to, or an intervener in, the inquiry; and
(ii) to whom the declaration does not relate; and
(b) in the case of a notice relating to an order or an interim order—the interests of a person to whom the order is directed will be adversely affected if a particular reason is, or particular reasons are, given to another person:
(i) who is a party to, or an intervener in, the inquiry; and
(ii) to whom the order is not directed;
the Panel must not give notice of the reason, or reasons, to the other person.
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(1) The Panel may refer a matter to the Commission for the Commission to consider with a view to making an application.
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.
(1) Subject to subregulation (2), an application by the Commission must:
(a) be in writing; and
(b) be in a form approved by the Panel that specifies matters to be included in the application:
(i) in accordance with the relevant national scheme law; or
(ii) that are otherwise relevant to the application; and
(c) state:
(i) the power of the Panel in respect of which the application is made; and
(ii) the grounds on which the exercise of that power is sought; and
(d) include copies of any other documents that are to be regarded as incorporated in the application; and
(e) contain sufficient information to permit a proper consideration of those matters or documents by the Panel; and
(f) be signed by the person who completes the application; and
(g) show the date on which the application is signed, the name of the signatory and the capacity in which he or she signs the application; and
(h) be clearly and legibly printed, typewritten or handwritten to enable reproduction by the Panel of the contents of the submission in a form that is clear and legible; and
(i) be lodged with the Panel.
An application that is not in accordance with subregulation (1) may be made if the application is in accordance with the written requirements of the Panel in relation to the application.
As soon as practicable after receiving an application by the Commission, the Panel must:
(a) decide whether to hold an inquiry in relation to the application; and
(b) if the Panel decides to hold an inquiry—prepare a brief setting out:
(i) a general description of the matters to be examined in the inquiry; and
(ii) a summary of the grounds presented in the application for the making of a declaration or an order by the Panel; and
(iii) the issues to be addressed in submissions to the inquiry.
(1) If the Panel decides, under regulation 20, to conduct an inquiry, 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 made by the Commission relates.
If the Panel decides, under regulation 20, not to conduct an inquiry, 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:
(i) to whom the relevant application made by the Commission relates; and
(ii) whom the Commission has notified of the making of the application; and
(c) include in each notice the reasons for the decision.
(1) If the Panel decides to hold an inquiry, it must, within 5 business days after receiving the application:
(a) give a copy of the brief for the inquiry 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.
If the Panel decides to hold an inquiry it may give written notice of the decision to any other body or person.
Subject to regulation 32, the Panel, within 5 business days after giving notice to a body or a person under subregulation (2), 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.
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(1) The Panel may give notice to a person, or to the public at large, of a decision by the Panel to hold an inquiry.
A notice must include a description of the nature of the inquiry.
A notice may invite a person who is not a party to the inquiry to give, within 3 business days of the date of the notice, a written expression of interest in the inquiry:
(a) stating the nature of the interest of the person in the inquiry; and
(b) setting out the reasons why the Panel should consider a written submission of the person relating to the inquiry.
The Panel may, by written notice to the person, vary the period mentioned in subregulation (3).
(1) As soon as practicable after the Panel receives the expression of interest of a person, the Panel must acknowledge the receipt in writing.
Subject to regulation 32, if the Panel decides to consider a written submission of the person in the inquiry, the Panel must give to the person a copy of the brief for the inquiry.
The Panel must invite the person to lodge with the Panel a written submission addressing the issues identified in the brief.
If the Panel decides not to consider any written submission of the person in the inquiry, the Panel must advise the person of the decision and of the reasons for the decision.
(1) A submission made by a person to an inquiry must:
(a) be in:
(i) writing; or
(ii) with the consent of the Panel and subject to any conditions that the Panel specifies in writing—the form of an audio tape, a video tape or another record; and
(b) if the Panel has given to the person:
(i) a copy of the brief—address the issues identified in the brief; or
(ii) a copy of part of the brief—address the issues identified in that part of the brief; and
(c) subject to regulation 33, include copies of any other written material that is referred to in the submission; and
(d) state any decision that the person making the submission proposes that the Panel should make; and
(e) contain sufficient information to permit a proper consideration by the Panel of those issues, documents and proposed decisions.
A written submission must:
(a) be signed by the person who makes the submission; and
(b) show the date on which the submission is signed, the name of the signatory and the capacity in which he or she signs the submission; and
(c) be clearly and legibly printed, typewritten or handwritten to enable reproduction of the contents of the submission in a form that is clear and legible.
A submission to which subparagraph (1) (a) (ii) refers must have with it a written statement that:
(a) shows the inquiry to which the submission relates; and
(b) identifies the person by, or on whose behalf, the submission is made.
(1) The Panel may disregard any matter in a submission that:
(a) is not in accordance with subregulations 25 (1) and (2); or
(b) is frivolous or vexatious.
The Panel must disregard any matter in a submission that is not relevant to the inquiry.
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.
(1) A submission by a person relating to an inquiry into an application must be lodged with the Panel:
(a) in the case of an application for a declaration, or a declaration and an order:
(i) if the person is a party to the inquiry—within 5 business days after receipt by the person of the brief; and
(ii) if the person is an intervener in the inquiry—within 3 business days after receipt by the person of the brief; and
(b) in the case of an application for an order—within 2 business days after receipt by the person of the brief.
Subject to regulation 32, as soon as practicable after the Panel receives a submission, the Panel must give a copy of the submission to each party and to each intervener.
Subject to subregulation (4), 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.
A submission under subregulation (3) must be lodged:
(a) if the submission relates to an application for:
(i) a declaration, or for a declaration and an order—within 5 business days; or
(ii) an order—within 2 business days;
after receipt of the copy; or
(b) within any longer period allowed by the Panel.
A submission lodged with the Panel under subregulation (3) is taken not to include any additional material that is not lodged at the same time as the submission.
(1) If the Panel proposes to make an order under section 734 of the Corporations Law, it must give written notice of the proposal to each party and to each intervener.
A notice must invite its recipient to lodge a submission relating to the proposal.
The submission must be lodged with the Panel within 2 business days after receipt by the person of the notice.
The submission must comply with paragraphs 25 (1) (a), (c), (d) and (e).
(1) At any time during an inquiry for the purposes of section 733 or 734 of the Corporations Law, the Panel may request a party to, or an intervener in, the inquiry to lodge with the Panel a submission that addresses matters specified in the request.
The Panel may specify in the request the time by which the submission must be lodged with the Panel.
The submission must comply with paragraphs 25 (1) (a), (c), (d) and (e).
Subject to regulation 32, the Panel may give a copy of the submission to each other party and intervener.
A person who receives a copy of a submission may, at or before a time specified in writing by the Panel, 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.
(1) For the purposes of section 733A or 733B of the Corporations Law, the Panel may request a person to lodge with the Panel a submission that addresses matters specified in the request.
The Panel may specify in the request the time by which the submission must be lodged with the Panel.
The submission must comply with paragraphs 25 (1) (a), (c), (d) and (e).
Subject to regulation 32, the Panel may give a copy of the submission to a person whom the Panel believes has an interest in the matters addressed in the submission.
(1) The Panel must not give:
(a) a copy of a brief or submission; or
(b) a copy of part of a brief or submission; or
(c) information contained in a brief or submission;
to any person if the Panel is satisfied that it is not desirable to do so.
When deciding whether to give to a person a copy of a brief or submission, part of a brief or submission or information contained in a brief or submission, the Panel must have regard to:
(a) whether that document or information is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence; and
(b) any unfair prejudice to a person’s reputation that would be likely to be caused if the Panel gives the document or information to that person; and
(c) whether it is in the public interest for the Panel to give the document or information to the person.
If a person relies on matters contained in a published document that is available to the public in support of an application or a written submission to the Panel, the person may lodge with the Panel, instead of a copy of the document, a written notice that:
(a) shows that the person intends to rely on those matters; and
(b) specifies the document; and
(c) outlines those matters; and
(d) specifies 1, or more than 1, place where the document is available to the public.
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 proceed with the inquiry without regard to the document.
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(1) The Panel may conduct a conference in an inquiry to:
(a) clarify matters arising from documents in the possession of the Panel relating to the inquiry; or
(b) resolve inconsistent statements:
(i) in documents in the possession of the Panel relating to the inquiry; or
(ii) made orally to the Panel; or
(c) otherwise inform itself on matters relating to the inquiry.
For the purposes of these Regulations, a conference is taken to be part of an inquiry.
The following persons are entitled to be present at a conference in an inquiry:
(a) in the case of an inquiry relating to an application for a declaration—a person to whom any declaration would relate;
(b) in the case of an inquiry relating to an application for an order—the person to whom the order would be directed.
The question of who is entitled to attend an inquiry is also dealt with in subsections 189 (2), 191 (2) and 194 (4) of the Act.]
(1) The President may convene a conference within 5 business days after:
(a) receiving the last written submission to be made in relation to the inquiry; or
(b) the last date for lodging a written submission in relation to the inquiry;
whichever is the earlier.
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 a person who may attend the conference, except a person who is entitled, under subsection 194 (4) of the Act, to be present at the conference to assist another person.
(1) As soon as practicable before a conference, the Panel must give to a person, except a person who is entitled under subsection 194 (4) of the Act to attend a conference to assist another 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.
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.
The Panel must make and retain a transcript of the proceedings of a conference.
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 inquiry.
(1) A person who attends a conference may address the Panel.
Subject to subregulations (3) and (4), 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.
A person who is entitled, under subsection 194 (4) of the Act, to be present at a conference to assist another person must only address the Panel on a matter at that conference that the other person may address to the Panel at the conference.
If the Panel invites a person at a conference to address the Panel on a matter, the person may address the matter at the conference.
(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.
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.
The Panel may exclude from a conference a person whose behaviour has a seriously disruptive effect on the conference.
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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.
For the purposes of subsection 192 (6) of the Act (which provides for allowances and expenses to be paid in relation to inquiries), a person who appears at an inquiry 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.”.
8.1 Omit the heading, substitute:
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FORMS”.
8.2 Form 3:
Omit the heading, substitute:
Regulations 7, 11 and 42
Australian Securities Commission Regulations
SUMMONS TO WITNESS”.
9.1 Omit the heading, substitute:
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Australian Securities Commission Regulations
WITNESSES FEES AND ALLOWANCES FOR EXPENSES”.
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1. Notified in the
Commonwealth of Australia Gazette on 30 December 1994.2. Statutory Rules 1990 No. 454 as amended by 1993 No. 208; 1994 No. 301.
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