Co-operative Scheme Legislation Amendment Act 1989 (Cth)
PART I—PRELIMINARY
Section
1. Short title
2. Commencement
3. Principal Act
PART 2—AMENDMENTS OF COMPANIES ACT 1981: COMPUTERISED REGISTERS
4. Registers
5. Insertion of new section:
31a. Obtaining information from certain registers
PART 3—AMENDMENTS OF COMPANIES ACT 1981: SHARE BUY-BACKS
6. Interpretation
7. Relevant interests in shares
8. Insertion of new section:
9a. Inclusion in official list
9. Substitution of headings
10. Issue of shares at premium
11. Insertion of Subdivision heading
12. Insertion of Subdivision heading
13. Company financing dealings in its shares etc.
14. Consequences of company financing dealings in its shares etc.
15. Insertion of new Subdivision and heading:
TABLE OF PROVISIONS—
Section
130a. Interpretation
130b. Self-acquisition scheme
130c. Relevant matters affecting self-acquisition scheme
130d. Declaration by Commission
130e. Commission may make interim orders
130f. Court may reverse Commission’s declaration
130g. Court may act on Commission’s declaration
130h. Effect of Subdivision
16. Insertion of new Division:
133aa. Outline of structure
133ba. Effect of Subdivision
133bb. Interpretation
133bc. What constitutes buying back shares
133be. The 10% in 12 months limit
133bf. Takeover aspects of proposed resolution
133bg. When directors presumed to be aware of proposed or actual takeover bid
133bh. Solvency declaration
133bj. Auditor’s report on solvency declaration
133bk. When buy-back agreement is completed
133bl. When shares are transferred
133bm. Classes of shares
133ca. Power to buy back shares
133cb. Completion of buy-back
133cc. Effect of Division
133cd. Other obligations and liabilities not affected
133da. Articles to contain buy-back authorisation
133db. Inclusion, effect and renewal of buy-back authorisation
133ea. Only certain buy-backs permitted
133fa. Shares and classes of shares
133fb. Buy-back scheme
133fc. Withdrawal or variation of buy-back offers
133fd. Avoiding odd lots
133fe. Odd lots to be disregarded for purposes of 10% in 12 months limit
TABLE OF PROVISIONS—
Section
133ga. When approval required
133gb. Buy-back offers made under a resolution
133gc. Resolution to approve proposed buy-back scheme
133gd. Notice of resolution to approve proposed buy-back scheme
133ha. Approval by ordinary resolution
133hb. Resolution to approve proposed employee-shares purchase
133hc. Notice of resolution to approve proposed employee-shares purchase
133ja. Approval, by special resolution passed by special majority, of selective buy-back by public company
133jb. Approval by special resolution where selective buy-back by proprietary company exceeds 10% in 12 months limit
133ka. Notice must comply with Subdivision
133kb. Contents of resolution and proposed agreement
133kc. Availability of agreement for inspection
133kd. Valuation of non-cash consideration
133ke. Expert’s opinion about whether consideration fair and reasonable
133kf. Matters affecting expert’s objectivity
133kg. Expert’s consent
133kh. Reasons for buy-back
133kj. Solvency aspects
133kk. Directors’ interests
133kl. Effect on control of company
133km. Other relevant information
133kn. Notices to be the same
133la. Advertising proposed buy-backs
133lb. Content of advertisement
133lc. Newspapers in which advertisement to be published
133ld. Creditor may apply to Court
133le. How application to be dealt with
133lf. Buy-backs not to proceed while application pending
133lg. Company to comply with order of Court
133ma. Solvency requirements for buy-back scheme
133mb. Solvency requirements for other buy-backs
133mc. Copy of solvency declaration and auditor’s report to be lodged with Commission
133md. Revocation of solvency declaration
133me. Solvency requirements for completion of buy-back under buy-back scheme
133mf. Company not to register certain transfers during solvency period
TABLE OF PROVISIONS-
Section
133na. Buy-back consideration not to consist of other securities of the company
133nb. No buy-backs during rights issue or placement
133nc. No rights issue or placement during offer period or within 3 months after buy-back
133pa. Rights attaching to bought back shares
133pb. Company not to dispose of bought back shares
133pc. Cancellation of shares after transfer to company
133pd. Accounting for money spent on buy-back where amount exceeds nominal value of shares
133qa. Buy-back offer by externally-administered company void
133qb. Effect of supervening insolvency on buy-back scheme
133qc. Directors to indemnify insolvent company where consideration provided, or partly-paid shares acquired, under buy-back agreements
133qd. Relief from liability under section 133qc
133ra. Specific performance of buy-back agreements
133rb. Buy-back agreement unenforceable while company insolvent
133rc. Unpaid seller may prove in winding up of company
133rd. Ranking of seller’s claim in winding up
133sa. Certificate of compliance
133sb. Presumptions about certain matters
133sc. Who must sign compliance certificate
133sd. Offences relating to compliance certificates: buy-back schemes
133se. Offences relating to compliance certificates: other buy-backs
133sf. Declaration by Court of substantial compliance
133ta. Company to notify Commission of buy-backs
133tb. Listed company to notify securities exchanges of buy-backs
133ua Notifying member whose shares were cancelled
133ub. Notifying members generally
133va. Company to keep register
133vb. Particulars of buy-back schemes
133vc. Particulars of other buy-backs
133vd. Alteration of register where buy-back does not proceed
133ve. Entries in register after cancellation of shares
133vf. Inspection and copies of register
17. Proofs of debts
TABLE OF PROVISIONS-
Section
PART 4—AMENDMENTS OF COMPANIES ACT 1981: ON-MARKET SHARE BUY-BACKS
18. Interpretation
19. Insertion of new section:
133bd. On-market purchase
20. Approval, by special resolution passed by special majority, of off-market selective buy-back by public company
21. Advertising proposed buy-backs
PART 5—AMENDMENTS OF COMPANIES ACT 1981: BUY-BACKS OF PRESCRIBED INTERESTS
22. Interpretation
23. Covenants to be included in deeds
24. Insertion of new section:
174a. Buy-back covenant and buy-back arrangements
PART 6—AMENDMENTS OF COMPANIES ACT 1981: ANNUAL RETURNS
25. Annual return
PART 7—PILOT SCHEME FOR THE FLEXIBLE ACCELERATED SECURITY TRANSFER SYSTEM
26. Interpretation
27. What is a sufficient instrument of transfer
28. Repeal of section 194 and substitution of new sections:
194. Effect where instrument purports to bear transferor’s broker’s stamp
194a. Warranties by securities exchange where instrument purports to bear its stamp
194b. Indemnities by securities exchange and broker where instruments purport to bear their stamps
194c. Joint and several warranties and liabilities
194d. Additional operation of sections 194 to 194c
29. Offences
30. Powers of Commission: Divisions 1, 2, 5 and 6 and section 552
31. Insertion of new sections:
215da. Powers of Commission: Divisions 7 and 8 and Schedule 4
215db. Exemptions and declarations under sections 215c and 215da
32. Schedule 4
33. Interpretation
34. Payments out of Fund
35. Insertion of new Division:
122pa. Interpretation
122pb. Execution of transfer on a person’s behalf as transferor
122pc. Unauthorised execution of transfer
122pd. Claim by transferor
122pe. Claim by transferee or sub-transferee
122pf. How and when claim may be made
122pg. How claim is to be satisfied
122ph. Discretionary further compensation to transferor
122pj. Nexus between dealer and Territory
122pk. Preventing double recovery
TABLE OF PROVISIONS-
Section
36. No claim in certain other cases
37. Substitution of heading
38. Repeal of section 122yd and substitution of new section:
122yd. Application of Fund in respect of certain claims
39. Arbitration of amount of cash settlement of certain claims
40. Subrogation of Corporation to claimant’s rights etc.
41. Instalment payments
PART 8-PARTICIPANTS IN THE SECURITIES AND FUTURES INDUSTRIES
42. Insertion of heading and new section:
PART Ia—INTERPRETATION
3a. Effect of this Part
43. Interpretation
44. Insertion of new sections:
6a. Businesses of a particular kind
6b. Carrying on a business: alone or together with others
6c. Exempt dealers and exempt investment advisers
6d. Inclusion in official list
6e. Investment advice business
6f. Proper authority; invalid authority
6g. Recognised licensee must be connected with State or Territory concerned
6h. Representatives 6j. Securities business
45. Heading to Part IV
46. Repeal of sections 43 to 50, inclusive, and substitution of heading and new sections:
43. Dealers
45. Investment advisers
47. Application for a licence
48. Grant of licence to natural person
48a. Grant of licence to body corporate
48b. Effect of certain provisions
47. Conditions of licence
48. Licensee to notify breach of licence condition
49. Register of Licence Holders
50. Repeal of sections 55 and 56 and substitution of new sections:
55. Notifying change in particulars
56. Annual statement of licensee
51. When annual statement to be lodged
52. Repeal of sections 59, 60, 61 and 62 and substitution of new Divisions:
59a. Certain persons not clients
59b. Agreements with unlicensed persons
59c. Client may give notice of rescission
59d. Effect of notice under section 59c
59e. Client may apply to Court for partial rescission
59f. Court may make consequential orders
59g. Agreement unenforceable against client
59h. Non-licensee not entitled to recover commission
59j. Onus of establishing non-application of section 59g or 59h
59k. Client may recover commission paid to non-licensee
59l. Remedies under this Division additional to other remedies
TABLE OF PROVISIONS—
Section
60a. Representatives of dealers
60b. Representatives of investment advisers
60c. Defence
60d. Body corporate not to act as representative
60e. Licensee to keep register of holders of proper authorities
60f. Licensee to notify Commission of location and contents of register
60g. Inspection and copying of register
60h. Disclosure to client by representative
60j. Commission may require production of authority
60k. Commission may give licensee information about representative
60l. Holder of authority may be required to return it
61a. Conduct engaged in as a representative
61b. Liability where identity of principal unknown
61c. Liability of principals where act done in reliance on representative’s conduct
61d. Presumptions about certain matters
61e. No contracting out of liability for representative’s conduct
61f. Effect of Division
62a. Power to revoke, without a hearing, licence held by natural person
62b. Power to revoke, without a hearing, licence held by body corporate
62c. Power to revoke licence after a hearing
62d. Power to suspend licence instead of revoking it
62e. Power to make banning order where licence revoked or suspended
62f. Power to make banning order against unlicensed person
62g. Nature of banning order
62h. Exceptions to banning order
62j. Variation or revocation of banning order on application
62k. Revocation of banning order in certain cases
62l. Effect and publication of orders under this Division
62m. Contravention of banning order
62n. Banned person ineligible for licence
62p. Opportunity for hearing
62q. Disqualification by the Court
62r. Effect of order under section 62Q or corresponding law 62s. Effect of order under previous Territory law corresponding with section 62q
53 Insertion of Division heading
54. Issue of contract notes
55. Repeal of sections 65 and 65a
56. Insertion of Division heading
57. Insertion of new Division:
68b. Recommendation made by partner or officer
68c. Client to be told if adviser’s interests may influence recommendation
68d Defences to alleged breach of subsection 68c (2)
68e Adviser must have reasonable basis for recommendation
68f Adviser who breaches this Division liable to compensate client
68g. Qualified privilege for adviser when complying with this Division
58. Interpretation
59. Repeal of section 88 and substitution of new section:
88. Application of Part
TABLE OF PROVISIONS—
Section
60. Repeal of sections 90 and 91 and substitution of new sections:
90. Commission to be notified of certain matters on establishment of Register
90a. Commission to be notified of changes in certain matters
91. Defences
61. Repeal of section 93 and substitution of new section:
93. Power of Commission to require certain information
62. Interpretation
63. Insertion of heading and new section:
PART Ia—INTERPRETATION
3a. Effect of this Part
64. Interpretation
65. Insertion of new sections:
6a. Businesses of a particular kind
6b. Carrying on a business: alone or together with others
66. Dealing in futures contracts
67. Repeal of section 10 and substitution of new sections:
10. Exempt brokers and exempt futures advisers ,
10a. Futures advice business
10b. Proper authority; invalid authority
68. Repeal of section 11 and substitution of new section:
11. Recognised licensee must be connected with State or Territory concerned
69. Insertion of new section:
11a. Representatives
70. Heading to Part IV
71. Repeal of sections 60 to 71, inclusive, and substitution of heading and new sections:
61. Futures brokers
63. Futures advisers
65. Application for a licence
66. Grant of licence to natural person
66a. Grant of licence to body corporate
66b. Effect of certain provisions
69. Conditions of licence: general
69a. Conditions of futures broker’s licence: membership of relevant organisation
69b. Conditions of futures broker’s licence: assets and liabilities
69c. Conditions of licence: supervision of representatives
69d. Revocation and variation of licence conditions
69e. Relevant organisations to be informed about conditions of futures broker’s licence
70. Licensee to notify breach of licence condition
71. Commission may require licensed futures broker to give information
72. Register of Licence Holders
73. Repeal of sections 73 and 74 and substitution of new sections:
73. Notifying change in particulars
74. Annual statement of licensee
74. When annual statement to be lodged
75. Repeal of sections 77, 78, 79 and 80 and substitution of new Divisions:
TABLE OF PROVISIONS—
Section
77a. Excluded clients
77b. Agreement about a dealing in breach of section 61
77c. Agreement with person acting in breach of section 63
77d. Client may give notice of rescission
77e. Effect of notice under section 77d
77f. Client may apply to Court for partial rescission
77g. Court may make consequential orders
77h. Agreement unenforceable against client
77j. Non-licensee not entitled to recover commission
77k. Onus of establishing non-application of section 77h or 77j
77l. Client may recover commission paid to non-licensee
77m. Remedies under this Division additional to other remedies
78a. Representatives of futures brokers
78b. Representatives of futures advisers
78c. Defence
78d. Body corporate not to act as representative
78e. Licensee to keep register of holders of proper authorities
78f. Licensee to notify Commission of location and contents of register
78g. Inspection and copying of register
78h. Commission may require production of authority
78j. Commission may give licensee information about representative
78k. Holder of authority may be required to return it
79a. Conduct engaged in as a representative
79b. Liability where identity of principal unknown
79c. Liability of principals where act done in reliance on representative’s conduct
79d. Presumptions about certain matters
79e. No contracting out of liability for representative’s conduct
79f. Effect of Division
80a. Power to revoke, without a hearing, licence held by natural person
80b. Power to revoke, without a hearing, licence held by body corporate
80c. Power to revoke licence after a hearing
80d. Power to suspend licence instead of revoking it
80e. Power to make banning order where licence revoked or suspended
80f. Power to make banning order against unlicensed person
80g. Nature of banning order
80h. Exceptions to banning order
80j. Variation or revocation of banning order on application
80k. Revocation of banning order in certain cases
80l. Effect and publication of orders under this Division
80m. Contravention of banning order
80n. Banned person ineligible for licence
80p. Opportunity for hearing
80q. Disqualification by the Court
80r. Effect of order under section 80q or corresponding law
80s. Effect of order under previous Territory law corresponding with section 80q
TABLE OF PROVISIONS—
Section
76. Definitions
77. Insertion of new section:
38c. Qualified privilege
PART 9—AMENDMENTS OF CO-OPERATIVE SCHEME FEES ACTS
78. Repeal of sections 3, 4 and 5 and substitution of new sections:
3. Interpretation
4. Power to prescribe fees
5. Aspects of the power to prescribe fees
6. Fees payable
7. Maximum fees payable for one matter
8. Fee where document taken to be lodged
9. Lodgment of document without payment of fee
10. Doing of act without payment of fee
11. Effect of sections 9 and 10
12. Commission may require payment of deposit on account of fee
13. Fee not ascertainable when it becomes payable
14. Waiver and refund of fees
15. Debts due to the Commonwealth
16. Act not to impose taxation
17. Payment of fee does not give right to inspect or search
79. Repeal of sections 3, 4 and 5 and substitution of new sections:
3. Interpretation
4. Power to prescribe fees
5. Aspects of the power to prescribe fees
6. Fees payable
7. Maximum fees payable for one matter
8. Lodgment of document without payment of fee
9. Doing of act without payment of fee
10. Effect of sections 8 and 9
11. Commission may require payment of deposit on account of fee
12. Fee not ascertainable when it becomes payable
13. Waiver and refund of fees
14. Debts due to the Commonwealth
15. Act not to impose taxation
16. Payment of fee does not give right to inspect or search
80. Repeal of sections 3, 4 and 5 and substitution of new sections:
3. Interpretation
4. Power to prescribe fees
5. Aspects of the power to prescribe fees
6. Fees payable
7. Maximum fees payable for one matter
8. Lodgment of document without payment of fee
9. Doing of act without payment of fee
10. Effect of sections 8 and 9
11. Commission may require payment of deposit on account of fee
12. Fee not ascertainable when it becomes payable
13. Waiver and refund of fees
14. Debts due to the Commonwealth
15. Act not to impose taxation
16. Payment of fee does not give right to inspect or search
TABLE OF PROVISIONS—
Section
81. Repeal of sections 3, 4 and 5 and substitution of new sections:
3. Interpretation
4. Power to prescribe fees
5. Aspects of the power to prescribe fees
6. Fees payable
7. Maximum fees payable for one matter
8. Lodgment of document without payment of fee
9. Doing of act without payment of fee
10. Effect of sections 8 and 9
11. Commission may require payment of deposit on account of fee
12. Fee not ascertainable when it becomes payable
13. Waiver and refund of fees
14. Debts due to the Commonwealth
15. Act not to impose taxation
16. Payment of fee does not give right to inspect or search
82. Effect of regulations after commencement of this section
[
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
(a) if the expression occurs in a Division of a Part—to that Division; or
(b) otherwise—to the Part in which the expression occurs.
“(4a) A person is not entitled under paragraph (2) (a) to require the production of the original of a document or certificate if the Commission keeps by means of a mechanical, electronic or other device a record of information set out in the document or certificate and:
(a) the Commission produces to the person for inspection a writing that sets out, in a form the person can understand, what purports to be the contents of the document or certificate; or
(b) the Commission causes to be displayed for the person, in a form the person can understand, 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).
“(4b) Where:
(a) a person makes under paragraph (2) (c) a requirement that relates to a document or certificate and does not involve certifying a copy or extract;
(b) the Commission 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, the Commission gives:
(i) a writing that sets out, in a form the person can understand; or
(ii) a document that sets out, in a form requested by the person;
what purports to be the contents of:
(iii) the whole of the document or certificate; or
(iv) a part of the document or certificate;
then, for the purposes of that paragraph, the Commission shall be taken to have given, pursuant to that requirement:
(d) if subparagraph (c) (iii) applies—a copy of the document or certificate; or
(e) if subparagraph (c) (iv) applies—an extract from the document or certificate setting out that part of it.”.
“31a. (1) In this section:
‘data processor’ means a mechanical, electronic or other device;
‘register’ means a register kept by the Commission under this Act;
‘search’ includes inspect.
“(2) The Commission may permit a person to search, otherwise than by using a data processor, a prescribed register.
“(3) The Commission may permit a person to search a prescribed register by using a data processor in order to obtain prescribed information from the register.
“(4) The Commission may make available to a person prescribed information (in the form of a document or otherwise) that the Commission has obtained from a prescribed register by using a data processor.
“(5) Nothing in this section limits:
(a) a power or function that the Commission has apart from this section; or
(b) a right that a person has apart from this section.”.
“ ‘approving holding company’, in relation to a body corporate, means:
(a) a listed corporation of which the body is a subsidiary; or
(b) if the body is a subsidiary of no listed corporation but the ultimate holding company (if any) of the body is incorporated
in Australia or an external Territory—that ultimate holding company;
‘included’, in relation to an official list, has the meaning given by section 9a;
‘make’, in relation to a takeover bid, includes cause to be made;
‘offer’, in relation to a takeover bid, means one of the offers, or an offer made by virtue of the announcement, as the case requires, constituting the takeover bid;
‘participating employee’, in relation to a corporation, means:
(a) an employee of the corporation or of a related corporation; or
(b) without limiting the generality of paragraph (a), a director of the corporation or of a related corporation who holds a salaried employment or office in the corporation or in a related corporation;
‘redeemable preference share’ means a preference share in a body corporate that is, or at the body’s option is to be, liable to be redeemed;
‘takeover bid’ means:
(a) offers made under a takeover scheme within the meaning of the
Companies (Acquisition of Shares )Act 1980 ; or(b) a takeover announcement within the meaning of that Act;”.
“9a. A reference in this Act to a body corporate or other person included in an official list of a body corporate is a reference to:
(a) a body corporate or other person whose name is included in that official list; or
(b) a body corporate or other person whose name has been changed but whose previous name was included in that official list immediately before the change and is still so included.”.
(a) by omitting from subparagraph (2) (e) (ii) “or” (last occurring);
(b) by inserting after paragraph (2) (e) the following paragraph:“(ea) as provided by subsection 133pd(2); or”.
(a) by inserting in subparagraph (1) (b) (ii) “acquire or” before “purport”;
(b) by omitting from paragraph (9) (b) all the words after “benefit of and substituting the following:“participating employees in relation to the company, where:
(i) if the company has an approving holding company or approving holding companies—the company, and that holding company or those holding companies, have each, at a general meeting; or
(ii) otherwise—the company has, at a general meeting;
approved a scheme for providing money for such acquisitions and the financial assistance is given in accordance with the scheme.”;
(c) by omitting from paragraph (10) (j) “and”;
(d) by adding at the end of subsection (10) the following word and paragraph:“; and (m) none of the following:
(i) the contract or transaction under which the company gives the financial assistance;
(ii) a contract or transaction made or engaged in, or proposed to be made or engaged in, as a result of, by means of or in relation to the financial assistance;
was, is, or is proposed to be, made or engaged in by a person for the purpose, or for purposes including
the purpose, of enabling the company to avoid the operation of paragraph (1) (b).”.
(a) by inserting after paragraph (1) (a) the following paragraph:“(ba) the validity of a contract or transaction is not affected by a contravention of paragraph 129 (1) (b) constituted by:
(i) a buy-back, within the meaning of Division 3a, of ordinary shares; or
(ii) the transfer to a company, pursuant to such a buy-back by the company, of the shares;”;
(b) by omitting from paragraph (1) (b) “a contravention” and substituting “any other contravention”.
“130a. (1) In this Subdivision, unless the contrary intention appears:
‘agreement’ means an agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal;
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights;
‘connected transaction’, in relation to a self-acquisition scheme relating to a company, means a transaction that:
(a) is or will be, or forms or will form part of, the scheme; or
(b) has been, or is proposed to be, entered into in connection with the scheme;
whether or not the company is or will be a party to the transaction;
‘eligible agreement’ means:
(a) an agreement;
(b) a proposed agreement;
(c) an agreement as varied or as proposed to be varied;
(d) where an agreement has been varied—the agreement as in force at any time before the variation; or
(e) where an agreement has been discharged—the agreement as in force at any time before its discharge;
‘enter into’ includes engage in or become a party to;
‘in connection with’, in relation to a scheme or transaction, includes in the course of carrying out the scheme or transaction;
‘party’, in relation to a scheme or transaction, includes:
(a) in so far as the scheme or transaction consists of an eligible agreement—a party to the eligible agreement;
(b) in so far as the scheme or transaction consists of a proposed or discharged agreement—a person who would be a party to the agreement if it were in effect; and
(c) otherwise—a person who has entered into or carried out, or proposes to enter into or carry out, the whole or a part of the scheme or transaction;
‘scheme’ includes:
(a) a transaction;
(b) any plan, proposal, action, course of action, or course of conduct, even if unilateral; and
(c) a unilateral scheme;
‘transaction’ includes conduct (even if unilateral) and an eligible agreement.
“(2) A reference in this Subdivision to a person carrying out a scheme includes a reference to the person carrying out the scheme together with any other person or persons.
“130b. (1) A reference in this Subdivision, in relation to a company, to a self-acquisition scheme is a reference to a scheme to which the company has become a party for the purpose, or for purposes including the purpose, of doing any of the following, even if only at a future time or in particular circumstances:
(a) obtaining, securing, retaining, increasing the extent of, or exercising, power:
(i) to exercise, or control the exercise of, the right to vote attached to voting shares in the company; or
(ii) to dispose of, or to exercise control over the disposal of, shares in the company;
(b) bringing about a situation where, or ensuring that, a body corporate that has such power is, or the directors of such a body are, accustomed or under an obligation, whether formal or informal, to act in accordance with the company’s directions, instructions or wishes in relation to the exercise of the power;
(c) obtaining, securing, retaining, or increasing the extent of, a controlling interest in such a body;
(d) obtaining, securing, retaining, increasing the extent of, or exercising, the voting power attached to not less than the prescribed percentage of the voting shares in such a body;
(e) otherwise obtaining, securing, or retaining, a relevant interest in a share in itself.
“(2) Section 9 of the
(a) subsection (1) of this section were a provision of that section; and
(b) without limiting the generality of anything in that section, a reference in subsection 9 (2) of that Act to power included a reference to power sought to be obtained.
“(3) Without limiting the matters to which regard may be had in determining what constitutes:
(a) a self-acquisition scheme relating to a company; or
(b) a connected transaction in relation to such a scheme;
regard may be had to the giving, or proposed giving, by the company of financial assistance as mentioned in paragraph 129 (1) (a), even if subsection 129 (10) permits the giving by the company of the financial assistance.
“(4) A transaction permitted by section 133ca or 133cb:
(a) shall not be taken to be a connected transaction in relation to; and
(b) shall be disregarded in determining what constitutes;
a self-acquisition scheme relating to the company.
“130c. (1) For the purposes of this. Subdivision, each of the following is a relevant matter affecting a self-acquisition scheme relating to a company:
(a) to how many shares in the company the scheme relates;
(b) the likely effect of the scheme or a connected transaction on the company’s state of affairs;
(c) what consideration the company has provided, or is to provide, in connection with the scheme or a connected transaction;
(d) how much information about the scheme or a connected transaction the company has given to its members or creditors, or to securities exchanges;
(e) what opportunity the company’s members or creditors have had to consider the likely effects of the scheme or of a connected transaction;
(f) whether or not the company’s members or creditors have been consulted about, or have participated in making, the decision for the company to become a party to the scheme;
(g) whether or not the company’s members have had reasonable and equal opportunities to participate, or to become entitled to participate, in benefits accruing, whether directly or indirectly and whether immediately or in the future, in connection with the scheme or a connected transaction, to a party to the scheme or a connected transaction or to a person associated with such a party;
(h) the effect of the scheme or a connected transaction on:
(i) a takeover bid in relation to shares in the company that a person has made or proposes to make; or
(ii) the likelihood of a person making such a takeover bid;
(j) any other matter that appears to the Commission to be relevant in all the circumstances of the case.
“(2) Nothing in subsection (1) limits the generality of anything else in it.
“130d. (1) This section applies where the Commission is satisfied that:
(a) a transaction that has been, or is proposed to be, entered into is a connected transaction in relation to a self-acquisition scheme relating to a company;
(b) one or more of the following subparagraphs applies:
(i) both of the following are the case:
(A) as a result of the entering into or carrying out of the scheme or of a connected transaction, the company acquired a relevant interest in voting shares in itself;
(B) immediately after the acquisition, the company had a relevant interest or relevant interests in more than 10% of the voting shares in itself;
(ii) it is reasonable to expect that:
(A) as a result of the entering into or carrying out of the scheme or of a connected transaction, the company will acquire a relevant interest in voting shares in itself; and
(B) immediately after the acquisition, the company will have a relevant interest or relevant interests in more than 10% of the voting shares in itself;
(iii) the scheme or a connected transaction was entered into or carried out at a time when the company had, or it is reasonable to expect that the scheme or a connected transaction will be entered into or carried out at a time when the company has, a relevant interest or relevant interests in more than 10% of the voting shares in itself; and
(c) having regard to the relevant matters affecting the scheme, the entering into or carrying out of the scheme or a connected transaction has prejudiced materially, or is likely to prejudice materially, the rights or interests of the company, of its creditors or members, or of a class of its creditors or members.
“(2) The Commission:
(a) if the transaction referred to in paragraph (1) (a) has been entered into—may, within 90 days after the day on which it was entered into, declare the transaction; or
(b) otherwise—may declare the proposed transaction referred to in paragraph (1) (a);
to form part of an unacceptable self-acquisition scheme relating to the company.
“(3) The Commission may make a declaration under this section in relation to the scheme even if it has already become entitled on at least one occasion to make such a declaration.
“(4) A declaration under this section shall be in writing.
“(5) As soon as practicable after making a declaration under this section, the Commission shall:
(a) give a copy of the declaration to the company; and
(b) cause such a copy to be published in the
Gazette.
“(6) The validity of a declaration is not affected by a contravention of subsection (5).
“130e. (1) Subject to this section, where the Commission makes a declaration under section 130d, it may, even if it has already made at least one order under this section in reliance on the declaration, make, by writing published in the
(a) an order restraining a specified person from disposing of any interest in specified shares in the company;
(b) an order restraining a specified person from acquiring any interest in specified shares in the company;
(c) an order restraining the exercise of voting or other rights attached to specified shares in the company;
(d) an order directing the holder of shares in respect of which an order under this section is in force to give written notice of that order to any person whom the holder knows to be entitled to exercise a right to vote attached to any of those shares;
(e) an order directing the company not to make payment, except in the course of winding up, of a sum due from the company in respect of specified shares;
(f) an order directing the company not to register the transfer or transmission of specified shares;
(g) an order directing the company not to issue to a person who holds shares in the company shares that the company proposed to issue to the person:
(i) because the person holds shares in the company; or
(ii) pursuant to an offer or invitation made or issued to the person because the person holds shares in the company.
“(2) The Commission may, by written order published in the
“(3) A copy of an order under subsection (1) and of any order by which it is revoked or varied shall be served on the company and on any person to whom the order is directed.
“(4) Where an order made under subsection (1) is in force, a person aggrieved by the order may apply to the Court for variation or revocation of the order, and the Court may, if it is satisfied that it is reasonable to do so, vary the order or revoke the order and any order by which it has been varied.
“(5) A person shall not contravene an order under subsection (1).
Penalty: $2,500 or imprisonment for 6 months, or both.
“(6) Where a body corporate contravenes subsection (5), each officer of the body who is in default contravenes this subsection.
Penalty: $2,500 or imprisonment for 6 months, or both.
“(7) An order made under subsection (1) ceases to operate at the end of 30 days after it is made or at the end of the day specified in it as the day on which it ceases to operate, whichever is earlier.
“(8) The Commission may only make an order under subsection (1) if it has afforded the person to whom the order is directed an opportunity to appear at a hearing before the Commission and to make submissions and give evidence to the Commission in relation to the matter.
“(9) The Commission is not empowered to make an order under subsection (1) in reliance on a declaration made by the Commission if:
(a) an application has been made to the Court under section 130g in relation to the declaration; or
(b) the Court has revoked under subsection (4) of this section an order made in reliance on the declaration.
“130f.(1) Where the Commission makes a declaration under section 130d, the Court may, on an application by the company or on an application made under section 130g in relation to the declaration, declare the transaction or proposed transaction not to be part of an unacceptable self-acquisition scheme.
“(2) On the making of a declaration under subsection (1), the Commission’s declaration ceases to have effect.
“130g. (1) This section applies where the Commission makes a declaration under section 130d.
“(2) The Court may make any order it thinks necessary or expedient:
(a) to protect the rights or interests of a person who is affected by the scheme or by a connected transaction;
(b) to prevent a person from entering into or carrying out the whole or a part of the scheme or of a connected transaction; or
(c) to put a person in the same position as if the whole or a particular part of the scheme or of a connected transaction had not been entered into or carried out.
“(3) The Court may make one or more of the following:
(a) an order directing a person to supply specified information to members or creditors of the company;
(b) an order restraining the exercise of any voting or other rights attached to shares in the company;
(c) an order that any exercise of the voting or other rights attached to shares in the company be disregarded;
(d) an order restraining the disposal of, or of any interest in, shares in the company;
(e) an order directing the disposal of, or of any interest in, shares in the company;
(f) an order vesting in the Commission shares, or any interest in shares, in the company;
(g) an order directing the company not to register the transfer or transmission of shares;
(h) an order directing the company not to make payment, or to defer making payment, of any sum or sums due from the company in respect of shares in the company;
(j) an order cancelling, or declaring to be voidable, an arrangement or offer that is a connected transaction in relation to the scheme.
“(4) If the Court is satisfied that a person has suffered, or is likely to suffer, loss or damage as a result of the scheme or of a connected transaction, the Court may make, against the company or a person who was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the company becoming a party to the scheme, or to the scheme or transaction, as the case may be, any order that the Court thinks just and equitable, including, but not limited to, one or more of the following:
(a) an order directing the refunding of money or the return of property;
(b) an order directing the payment to a person of damages in respect of loss or damage so suffered;
(c) an order directing that a person be indemnified against any loss or damage that the person may so suffer.
“(5) The Court may, in order to secure compliance with any other order made under this section, make an order directing a person to do or refrain from doing a specified act.
“(6) The Court may only make an order under this section on the application of the Commission, the company or a member or creditor of the company.
“(7) The power of a court under section 535 to relieve a person to whom that section applies, wholly or partly and on such terms as the court thinks fit, from a liability referred to in that section extends to relieving a person against whom an order may be made under subsection (4) of this section from the liability to have such an order made against the person.
“(8) Section 49 of the
“(9) Nothing in this section limits the generality of anything else in it.
“130h. Nothing in this Subdivision limits the generality, or affects the operation, of a provision of:
(a) Subdivision C; or
(b) the
Companies (Acquisition of Shares) Act 1980.
“133aa.(1) Subdivision C creates exceptions to the section 129 prohibition on a company acquiring its own shares or interests in its own shares.
“(2) These permitted acquisitions of ordinary shares are called ‘buy-backs’, a term defined in Subdivision B along with most of the Division’s other terminology.
“(3) Buy-backs are permitted subject to:
(a) a condition prescribed by Subdivision D, which applies to all buy-backs of shares; and
(b) conditions prescribed by Subdivisions E, G, H, J, L, M and N, each condition applying to a specified kind of buy-back.
“(4) Subdivision F prescribes no conditions, but sets out what a buy-back scheme is and contains rules about such schemes. Buy-back schemes are central to many provisions of the Division.
“(5) Each of the Subdivisions prescribing conditions contains:
(a) at least one condition, usually only at the beginning of the Subdivision, but in the case of Subdivision L also at the end; and
(b) ancillary provisions about the subject matter of the condition or conditions.
“(6) The ancillary provisions relating to some of the conditions in Subdivision J are in Subdivision K.
“(7) The other Subdivisions contain further ancillary provisions and rules about the consequences of buy-backs and about the effect of certain events on buy-backs.
“133ba. This Subdivision has effect for the purposes of this Division, except so far as the contrary intention appears in this Division.
“133bb. Unless the contrary intention appears:
‘auditor’, in relation to a company, means:
(a) if Part VI requires the company to have an auditor—the auditor of the company for the purposes of that Part; or
(b) otherwise—a person who is entitled to act as auditor of the company for those purposes;
‘buy’ includes agree to buy;
‘buy back’ has the meaning given by section 133bc;
‘buy-back’ means an acquisition by a company constituted by the company buying back shares;
‘buy-back authorisation’, in relation to a company, means a provision to the effect that the company may buy ordinary shares in itself, being a provision contained, or proposed to be inserted, as the case requires, in the company’s articles;
‘buy-back offer’ means any of the offers constituting a buy-back scheme;
‘buy-back scheme’ means offers that by virtue of section 133fb constitute a buy-back scheme;
‘class’, in relation to shares, has a meaning affected by sections 133bm and 133fa;
‘completed’ has a meaning affected by section 133bk;
‘compliance certificate’ means a certificate given for the purposes of section 133sa;
‘distributable profits’ means profits that are available for dividends;
‘employee-shares purchase’ means a buy-back of shares where:
(a) immediately before the buy-back, shares (in this definition called the ‘relevant shares’) being or including the first-mentioned shares were held by, or for the benefit of, particular persons; and
(b) each of those persons was, on the last occasion when any of the relevant shares began to be held by or for the benefit of the person (whether alone or jointly with any other person
or persons), a participating employee in relation to the company;
even if some or all of those persons are no longer such employees;
‘entitled’ means entitled for the purposes of the
Companies (Acquisition of Shares) Act 1980; ‘externally-administered company’ means a company:
(a) in respect of which a provisional liquidator has been appointed and not since removed;
(b) that is being wound up; or
(c) that is under official management;
‘listed body’ means a body corporate that is included in an official list of a securities exchange;
‘marketable parcel’, in relation to shares in a listed body, means:
(a) if the body is included in an official list of the Exchange—a marketable parcel of shares in the body within the meaning of the Exchange’s rules; or
(b) in any other case—the smallest number of shares in the body that constitute a marketable parcel of such shares within the meaning of the rules of a securities exchange (other than the Exchange) in an official list of which the body is included;
‘modifications’ includes additions, omissions and substitutions;
‘national newspaper’ means a daily newspaper that circulates generally in each State, the Territory and the Northern Territory;
‘non-cash consideration’ means consideration other than money;
‘notifiable exchange’, in relation to a listed body, means:
(a) if the body is included in an official list of the Exchange— the securities exchange designated to the company, for the purposes of the rules of the Exchange relating to the conduct of bodies so included, as the body’s Home Exchange; and
(b) in any case—each securities exchange (other than the Exchange) in an official list of which the body is included;
‘odd lot’, in relation to shares in a listed body, means shares in the listed body that are fewer in number than one marketable parcel of such shares;
‘odd-lot purchase’ means a buy-back by a listed body of an odd lot of shares in the body;
‘offer period’, in relation to an offer made under a buy-back scheme, means the period during which the offer remains open or, if the offer has been accepted, would have remained open had it not been accepted;
‘ordinary resolution’ means a resolution other than a special resolution;
‘partly-paid share’ means a share on which an amount (including an amount of premium) remains unpaid;
‘provide’, in relation to consideration, includes pay;
‘purchase’ includes an agreement to buy;
‘relevant date’, in relation to a winding up of a company, means:
(a) in the case of a company ordered to be wound up by a court that has not previously commenced to be wound up voluntarily—the date of the winding up order; or
(b) otherwise—the date of the commencement of the winding up;
‘resolution’ includes a special resolution;
‘rights offer or invitation’, in relation to a body corporate, means a share offer made, or a share invitation issued, by the body to members of the body and to no other person;
‘rule’, in relation to a securities exchange, means a provision of:
(a) the constituent documents of the securities exchange; or
(b) any other rules, regulations or by-laws:
(i) made by the securities exchange; or
(ii) made by another person and adopted by the securities exchange;
‘securities exchange’ means the Exchange or a body corporate (wherever incorporated) that is declared by the regulations to be a securities exchange for the purposes of this Division;
‘seller’s claim’, in relation to a company, means a claim in respect of obligations of the company under an agreement constituting a buy-back by the company;
‘share invitation’, in relation to a body corporate, means an invitation to apply or offer to subscribe for or buy ordinary shares in the body that is issued by the body or on its behalf;
‘share offer’, in relation to a body corporate, means an offer of ordinary shares in the body for subscription or purchase that is made by the body or on its behalf;
‘shares’, in Subdivision F, has a meaning affected by section 133fa;
‘solvency declaration’ has the meaning given by section 133bh;
‘solvency period’, in relation to an offer made under a buy-back scheme, means the period beginning at the start of the offer period and ending when the company first provides consideration that it is to provide under an agreement resulting from the acceptance of an offer made under the buy-back scheme;
‘solvent’, in relation to a company, means able to pay all its debts as and when they become due and payable;
‘takeover aspects’ has the meaning given by section 133bf;
‘terms’ includes conditions;
‘trading’ has the same meaning as in the
Companies (Acquisition of Shares) Act 1980 ;‘trading day’, in relation to a securities exchange, means a day on which a stock market of the securities exchange is open for trading in securities;
‘transfer’ has a meaning affected by section 133bl.
“133bc. Where a company buys shares in itself, it shall be taken to buy back the shares.
“133be. A buy-back of shares exceeds the 10% in 12 months limit if, and only if, the number calculated in accordance with the following formula exceeds 10:
;
where:
Buy-backs is the aggregate nominal value of all ordinary shares that the company bought back during the period of 12 months ending on the day of the first-mentioned buy-back;
Initial shares is the aggregate nominal value of all the issued ordinary shares, as at the start of that period, in the company;
New issues is the aggregate nominal value of all ordinary shares that the company issued during that period;
Cancelled shares is the aggregate nominal value of all ordinary shares in the company that were cancelled during that period otherwise than by force of subsection 133pc (1).
“133bf. (1) A notice that sets out the intention to propose a resolution of a company sets out the takeover aspects of the proposed resolution if, and only if, the notice complies with this section.
“(2) It shall set out whether or not, as at the time when it is prepared, any of the company’s directors is aware of:
(a) a proposal by a person:
(i) to acquire, or to increase the extent of, a substantial interest in the company; or
(ii) without limiting the generality of subparagraph (i), to make a takeover bid in relation to shares in the company; or
(b) a takeover bid that has been made by a person in relation to shares in the company and offers under which remain open as at that time.
“(3) If any of the directors is so aware, the notice shall set out:
(a) whether or not such a proposal or takeover bid has influenced the decision to propose the resolution; and
(b) if so—particulars of:
(i) each proposal and takeover bid concerned; and
(ii) the extent to which each has influenced that decision.
“133bg.(1) Where a person who proposes to make a takeover bid in relation to shares in a company has:
(a) made a public announcement to the effect that the person proposes to make the takeover bid; or
(b) served on the company a Part A statement within the meaning of the
Companies (Acquisition of Shares) Act 1980 relating to the proposed takeover bid;
a director of the company shall, unless the contrary is established, be presumed to be aware of the proposal.
“(2) A director of a company shall, unless the contrary is established, be presumed to be aware of a takeover bid that a person has made in relation to shares in the company.
“(3) Where:
(a) a person has made a takeover bid in relation to shares in a company; and
(b) a director of the company was aware that the person proposed to make, but is not aware that the person has made, the takeover bid;
subsection 133bf(2) and paragraph 133ga(b) apply in relation to the director, in relation to the takeover bid, as if the person had not made, but still proposed to make, the takeover bid.
“133bh. (1) A solvency declaration by a company’s directors is a declaration in writing that:
(a) is signed in person by everyone who, on the day on which the declaration is first signed by a director of the company, is such a director;
(b) specifies that day;
(c) states to the effect that it is the directors’ opinion that the company was solvent on that day;
(d) specifies each buy-back scheme that related to shares in the company and:
(i) offers under which remained open; or
(ii) agreements resulting from the acceptance of offers under which remained uncompleted;
as at that day;
(e) specifies each agreement that:
(i) constituted a buy-back made by the company otherwise than under a buy-back scheme; and
(ii) remained uncompleted as at that day;
(f) specifies, as at that day:
(i) each proposed buy-back scheme (if any) under which the company proposed to make offers during the period of 12 months starting on that day; and
(ii) each buy-back that the company proposed to make, otherwise than under a buy-back scheme, during that period; and
(g) states to the effect that it is the directors’ opinion that the company will remain solvent throughout that period even if:
(i) each buy-back offer (if any) that related to shares in the company and remained open as at that day is accepted, and the resulting agreement completed, during that period;
(ii) each agreement (if any) that resulted from the acceptance of a buy-back offer relating to such shares and remained uncompleted as at that day is completed during that period;
(iii) each agreement (if any) of the kind referred to in paragraph (e) is completed during that period;
(iv) all offers made under each such proposed buy-back scheme (if any) are accepted, and the resulting contracts completed, during that period; and
(v) each such proposed buy-back (if any) is made during that period.
“(2) Each director of a company who signs a solvency declaration by the company’s directors shall be taken to have stated in it that he or she had, when signing the declaration, the opinions described in it.
“(3) A solvency declaration by a company’s directors shall be taken to have been made on the day specified in it under paragraph (1) (b).
“(4) Unless sooner revoked under section 133md, a solvency declaration by a company’s directors remains in force for 12 months starting on the day on which it is made.
“(5) A solvency declaration by a company’s directors relates to a buy-back scheme or buy-back if, and only if, the declaration specifies the buy-back scheme or buy-back under paragraph (1) (d) or (e).
“(6) In subsection (5):
‘buy-back’ includes a proposed buy-back;
‘buy-back scheme’ includes a proposed buy-back scheme.
“133bj. An auditor’s report on a solvency declaration by a company’s directors is a report in writing that:
(a) the company’s auditor prepares, signs and dates, and sends to the company, on or after the day when the declaration is made;
(b) sets out a statement to the effect that the auditor has inquired into the company’s state of affairs and is aware of nothing to indicate
that it is unreasonable in all the circumstances to form the opinions described in the declaration; and
(c) sets out:
(i) such explanations (if any), and such information (if any), relevant to the statement referred to in paragraph (b); and
(ii) such other information (if any);
as the auditor thinks necessary, other than an explanation, or information, that contradicts, qualifies or is otherwise inconsistent with that statement.
“133bk. An agreement constituting a buy-back by a company is completed when the company has provided all the consideration that it is to provide under the agreement.
“133bl. Shares in a body corporate are transferred pursuant to an agreement when the transfer of the shares pursuant to the agreement is registered by the body.
“133bm. The shares in a company, if not divided into 2 or more classes, constitute a class.
“133ca. (1) A company may buy back ordinary shares if, and only if, the conditions prescribed by this Division are satisfied.
“(2) The power conferred by subsection (1) may only be exercised by the directors.
“(3) The order in which this Division prescribes conditions does not indicate that the conditions must be satisfied in a particular order.
“133cb. Subject to this Division (other than section 133ca), where a company buys back shares as permitted by section 133ca, the shares may be transferred to the company pursuant to the buy-back.
“133cc. (1) This Division has effect despite:
(a) Subdivisions C and D of Division 3;
(b) section 11 of the
Companies (Acquisition of Shares) Act 1980 ;(c) the constituent documents, or a resolution, of a company;
(d) the rules of a securities exchange; or
(e) any agreement.
“(2) Without limiting the generality of subsection (1), a buy-back or transfer permitted by section 133ca or 133cb does not contravene any of the provisions referred to in paragraphs (1) (a) and (b) of this section.
“(3) Nothing in this Division affects section 82.
“(4) Shares bought back as permitted by section 133ca shall, so long as the rights attached to them are suspended because of section 133pa
“(5) Sections 133pa and 133pb shall be disregarded in determining, for the purposes of Division 4, whether or not a person has a relevant interest in particular shares.
“133cd. (1) Except as expressly provided in this Division, nothing in this Division affects an obligation, or a liability (whether civil or criminal), arising otherwise than under this Division.
“(2) Without limiting the generality of subsection (1), nothing in this Division relieves a director of any duty to the company, whether arising under section 229 or otherwise and whether of a fiduciary nature or not.
“133da. (1) The first condition is that the company’s articles contain a buy-back authorisation at the relevant time.
“(2) For the purposes of subsection (1), the relevant time is:
(a) if the buy-back is made under a buy-back scheme but section 133ga does not apply—when the first offer is made under the buy-back scheme;
(b) if section 133ga, 133ha, 133ja or 133jb applies—when the resolution for which that section provides is passed; or
(c) in any other case—the time of the buy-back.
“133db.(1) In this section:
‘renew’, in relation to a buy-back authorisation, means renew under subsection (4);
‘requirement’, in relation to a company, includes a requirement of a law or of the company’s constituent documents.
“(2) A company’s buy-back authorisation, unless sooner omitted from the company’s articles, ceases to have effect at the end of:
(a) if the articles provide that the buy-back authorisation has effect for a specified period of less than 3 years and the buy-back authorisation has not been renewed—the specified period;
(b) if the buy-back authorisation has been renewed on at least one occasion and the resolution, or the later or last of the resolutions, as the case requires, renewing it states that it is renewed for a specified period of less than 3 years—the specified period; or
(c) otherwise—3 years;
beginning:
(d) if the buy-back authorisation was contained in the articles at the time when the company was incorporated and has not been renewed—at that time;
(e) if the buy-back authorisation was inserted in the articles and has not been renewed—at the time when it was so inserted; or
(f) if the buy-back authorisation has been renewed on at least one occasion—at the time when the buy-back authorisation was last renewed.
“(3) Where a company’s buy-back authorisation ceases to have effect, the company’s articles are, by force of this subsection, altered by omitting the buy-back authorisation.
“(4) A company may renew its buy-back authorisation in any manner in which it may alter its articles by inserting a buy-back authorisation and shall, in relation to a renewal of its buy-back authorisation, comply with the requirements that apply in relation to such an alteration of its articles, being an alteration in the manner in which the renewal is effected.
“(5) A company shall, with every notice that:
(a) sets out the intention to propose:
(i) a resolution for the alteration of the company’s articles by inserting a buy-back authorisation; or
(ii) a resolution to renew its buy-back authorisation; and
(b) is sent to a person who is entitled to vote on the proposed resolution;
send a statement that:
(c) states to the effect that the consequence of the proposed alteration or renewal is to empower the company, during the period during which the buy-back authorisation is in effect, to buy ordinary shares in itself as provided in this Division;
(d) explains the reasons for proposing the resolution and sets out the factual matters and principles underlying those reasons;
(e) if subparagraph (a) (ii) applies—reviews the buy-backs (if any) of shares by the company since the buy-back authorisation took effect, or was last renewed, as the case requires, and the effects of those buy-backs (if any) on the company and on the directors, and the members, of the company, respectively;
(f) discusses both the potential advantages, and the potential disadvantages, of the proposed buy-back authorisation, or of the buy-back authorisation proposed to be renewed, as the case may be, for the company and for the directors, and the members, of the company, respectively.
“(6) Where a company contravenes subsection (4), the company and any officer of the company who is in default are each guilty of an offence.
Penalty: $5,000 or imprisonment for 12 months, or both.
“133ea. If the company is a public company, the next condition is that the buy-back:
(a) does not exceed the 10% in 12 months limit; or
(b) is an employee-shares purchase or an odd-lot purchase.
“133fa.(1) Except so far as the contrary intention appears, a reference in this Subdivision to shares is a reference to ordinary shares.
“(2) Where the shares in a company are divided into 2 or more classes, the provisions of this Subdivision (other than this subsection and subsection 133fb(10)) apply in relation to each of those classes:
(a) as if the shares in that class were the only shares in the company; and
(b) without prejudice to their application by force of this subsection in relation to any other class of shares.
“133fb.(1) A buy-back is made under a buy-back scheme if, and only if, it results from the acceptance of an offer made under the buy-back scheme.
“(2) An offer is made under a buy-back scheme if, and only if, it is one of the offers constituting the buy-back scheme.
“(3) Offers by a company to buy back shares constitute a buy-back scheme if, and only if, the following requirements of this section are complied with.
“(4) Each offer must be in writing.
“(5) Each offer must have the same date, being a date that is not earlier than 3 days before the day on which the offer is sent and not later than that day.
“(6) Each offer must state that it will, unless withdrawn, remain open during a period ending on a specified day that is not earlier than one month, nor later than 6 months, after the date of the offer.
“(7) Each offer must specify the consideration that under the offer is to be provided for the buy-back of each share to which the offer relates.
“(8) Each offer must set out how and when the company’s obligations are to be satisfied.
“(9) The offers must relate only to shares in the company.
“(10) Each offer must specify, in relation to each class of shares (including shares other than ordinary shares) in the company:
(a) the total number of shares in the class as at the time immediately before the first of the offers is sent; and
(b) in the case of a class of ordinary shares—the number of shares (if any) in the class that, as at that time, have been bought back but not yet cancelled (which may be expressed as a number of shares or as a percentage of the number referred to in paragraph (a)).
“(11) Each offer must relate to a proportion of the shares in the company that the offeree holds and that proportion must be the same in respect of each offer.
“(12) The offers must be the same disregarding:
(a) the fact that the number of shares that may be acquired under each offer is limited by the number of shares held by the offeree; and
(b) any differences in the consideration specified for each share in the offers that are attributable only to one or both of the following:
(i) the fact that the offers relate to shares having different accrued dividend entitlements;
(ii) the fact that the offers relate to shares on which different amounts (whether by way of capital or premium) are paid up.
“(13) The offeror must send an offer in an approved manner to each person who holds shares in the company when the first of the offers is sent.
“(14) Section 8a of the
“133fc. A buy-back offer is not capable of being withdrawn or varied without the Commission’s written consent, which may be given subject to such conditions (if any) as are specified in it.
“133fd. Where, at a particular time:
(a) an offer has been made under a buy-back scheme;
(b) the company is a listed body;
(c) the offer is accepted; and
(d) a proportion of the shares, being the proportion to which the offer does not relate, consists of an odd lot of shares or consists of a marketable parcel or marketable parcels of shares and an odd lot of shares;
the offer shall, except for the purposes of subsection 133fb (11) and this section, be taken always to have related to, to relate to, and to have been accepted in relation to, a number of shares in the company equal to the sum of:
(e) the number of shares of which the proportion to which the offer relates consists; and
(f) the number of shares in that odd lot.
“133fe. (1) This section applies where, because of section 133fd
“(2) In determining whether or not a buy-back made under the buy-back scheme exceeds the 10% in 12 months limit, the odd lot shall be taken not to have been bought back.
“133ga. If the buy-back is made under a buy-back scheme and:
(a) if the company is a proprietary company—the buy-back exceeds the 10% in 12 months limit; or
(b) in any case—at the time when the first offer was made under the buy-back scheme, at least one of the company’s directors was aware of:
(i) a proposal by a person to make a takeover bid in relation to shares in the company; or
(ii) a takeover bid that had been made by a person in relation to shares in the company and offers under which remained open at that time;
the next condition is that the buy-back offers were made under an ordinary resolution of the company.
“133gb. Buy-back offers are made under a particular resolution if, and only if:
(a) the resolution:
(i) approves the buy-back scheme constituted by the offers;
(ii) complies with section 133gc; and
(iii) was passed at a meeting held before the first offer was made under the buy-back scheme;
(b) the offers are in accordance with the resolution; and
(c) such of the terms of the offers as are not specified in the resolution are not materially different from the terms particulars of which were specified under subsection 133gd(2) in notices relating to the resolution that were sent for the purposes of the meeting.
“133gc. (1) A resolution of a company that is passed at a meeting and approves a proposed buy-back scheme complies with this section if, and only if:
(a) every notice of the meeting sent to a person entitled to vote on the resolution set out, or was accompanied by a notice setting out:
(i) the intention to propose the resolution; and
(ii) the matters required by section 133gd; and
(b) the resolution complies with subsection (2) of this section.
“(2) The resolution shall specify:
(a) the latest date that the proposed buy-back offers may have for the purposes of subsection 133fb(5), being a date at most 12 months after the day on which the resolution is passed;
(b) the minimum period, being at least one month and at most 6 months, during which the offers are to remain open unless they are withdrawn;
(c) the consideration, or each alternative consideration included in the consideration, as the case requires, that under each of the offers is to be provided for the buy-back of each share to which the offer relates; and
(d) the proportion to be specified in the offers for the purposes of subsection 133fb(11).
“(3) A resolution may specify a consideration under paragraph (2) (c) as a consideration to be determined by the directors, being:
(a) not less than a minimum consideration specified in the resolution; and
(b) not more than a maximum consideration so specified.
“(4) A resolution may specify a consideration under paragraph (2) (c) or (3) (a) or (b) as a consideration to be determined by the directors in a manner specified in the resolution.
“(5) A resolution of a company to approve a proposed buy-back scheme may require specified terms to be included in the proposed buy-back offers.
“133gd.(1) A notice that:
(a) sets out the intention to propose a resolution to approve a proposed buy-back scheme; and
(b) is sent to a person entitled to vote on the resolution;
shall comply with this section.
“(2) It shall set out the text of the proposed resolution and full particulars of such of the terms of the proposed buy-back offers as are not specified in the resolution.
“(3) It shall set out the reasons why the buy-back scheme is being proposed and the facts and principles underlying those reasons.
“(4) It shall set out the takeover aspects of the proposed resolution.
“(5) It shall set out what the directors consider will be the likely effect on the company’s state of affairs if the offers are made and all are accepted.
“(6) It shall set out a copy of a solvency declaration by the directors that relates to the proposed buy-back scheme and was made within 7 days before the day on which the notice is prepared.
“(7) It shall state whether or not there are, at the time when it is prepared, partly-paid shares in the company that are in the same class as the shares to which the proposed buy-back offers relate and, if there are, the notice shall set out:
(a) how many such partly-paid shares there are at that time; and
(b) the total of all amounts (including amounts of premium) that at that time remain unpaid on such partly-paid shares.
“(8) It shall set out, in relation to each person who, at the time when the notice is prepared, is a director of the company or is associated with such a director:
(a) whether or not the person intends at that time, if:
(i) the resolution is passed in a form not substantially different from that set out in the notice;
(ii) buy-back offers are made under the resolution; and
(iii) the person holds shares in the company when the offers are made;
to accept the offer made to the person under the buy-back scheme; or
(b) if the person has not decided whether or not the person so intends— that the person has not so decided.
“(9) It shall set out all other information that is known to any of the directors and may reasonably be expected to influence a person in deciding whether or not to vote in favour of the resolution.
“(10) The notice shall be the same as each of the other notices of the kind referred to in subsection (1) that relate to the resolution, disregarding the fact that the first-mentioned notice is sent to a different person.
“133ha. If the buy-back is an employee-shares purchase and exceeds the 10% in 12 months limit, the next conditions are:
(a) that:
(i) if the company has an approving holding company or approving holding companies—the company, and that holding company or those holding companies, have each; or
(ii) otherwise—the company has;
approved the buy-back by an ordinary resolution passed at a meeting of the company or holding company held before the agreement constituting the buy-back is entered into;
(b) that each of the resolutions, or the resolution, as the case may be, complies with section 133hb;
(c) that the agreement is in accordance with each of the resolutions, or the resolution, as the case may be; and
(d) that such of the terms of the agreement as:
(i) are specified in none, or in at least one but not all, of the resolutions; or
(ii) are not specified in the resolution;
as the case may be, are not materially different from the terms particulars of which were specified under subsection 133hc(2) in notices relating to the resolutions or resolution that were sent for the purposes of the meetings or meeting.
“133hb.(1) A resolution of a corporation that is passed at a meeting and approves a proposed employee-shares purchase complies with this section if, and only if:
(a) every notice of the meeting sent to a person entitled to vote on the resolution set out, or was accompanied by a notice setting out:
(i) the intention to propose the resolution; and
(ii) the matters required by section 133hc;
(b) the resolution specifies the consideration, or each alternative consideration included in the consideration, as the case requires,
that under the agreement constituting the proposed purchase is to be provided for the purchase; and
(c) no votes are cast, in relation to the resolution, in respect of any shares held by:
(i) a party to the agreement (other than the company that proposes to make the purchase or a holding company of that company); or
(a) if the amount of the deposit exceeds the amount of the fee—the Commission shall refund to the person the amount of the excess; or
(b) if the amount of the fee exceeds the amount of the deposit—as from the later time, so much of the fee as exceeds the amount of the deposit is a debt due to the Commonwealth and payable by the person.
“(3) Otherwise, the fee is, as from the later time, a debt due to the Commonwealth and payable by the person whom the Commission determines in writing to be the person who it is reasonable to expect would have paid the fee had the fee been able to be ascertained when it became payable.
“14. Nothing in this Act prevents the Commonwealth from:
(a) waiving or reducing, in a particular case or in particular classes of cases, fees that would otherwise be payable under this Act; or
(b) refunding, in whole or in part, in a particular case or in particular classes of cases, fees paid under this Act.
“15. The Commission may recover in a court of competent jurisdiction a debt due under this Act.
“16. Nothing in this Act shall be taken to impose taxation.
“17. To avoid doubt, nothing in this Act or in the
(a) imposes on the Commission a duty to allow the inspection or search of a register or document, or to make available information; or
(b) confers a right to inspect or search a register or document or to have information made available;
except so far as such a duty or right would exist under some other law but for the effect of section 10.”.
“3. (1) In this Act, unless the contrary intention appears:
‘act’ includes thing;
‘chargeable matter’ means a matter of a kind referred to in any of paragraphs 4 (1) (a) to (h), inclusive;
‘for’, in relation to a fee, includes in respect of;
‘lodge’ means lodge with the Commission.
“(2) Subject to subsection (1), an expression has the same meaning in this Act as in the
“4. (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing fees for:
(a) the lodgment of documents under the
Companies (Acquisition of Shares) Act 1980 ;(b) the registration of documents under that Act;
(c) the inspection or search of registers kept by, or documents in the custody of, the Commission under that Act;
(d) the making available by the Commission, under that Act, of information (whether in the form of a document or otherwise);
(e) the production by the Commission, under a subpoena, of such registers or documents;
(f) the issuing of documents or copies of documents, the granting of licences, consents or approvals, or the doing of other acts, by the Ministerial Council or the Commission under that Act;
(g) the making of inquiries of, or applications to, the Ministerial Council or the Commission in relation to matters arising under that Act; and
(h) the submission to the Commission of documents for examination by the Commission.
“(2) The power conferred by subsection (1) extends, by virtue of this subsection but not otherwise, to prescribing fees that, but for subsection 6 (2), could not be prescribed under this Act unless it were a law imposing taxation but that could be if it were.
“(3) The Governor-General’s power to make regulations shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council.
“5. (1) The regulations may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
“(2) The regulations may provide for a fee for a chargeable matter to be determined by reference to a prescribed matter or prescribed matters, whether or not the prescribed matter, or any of the prescribed matters, has a direct or indirect connection with the chargeable matter.
“(3) A fee prescribed as a stated amount shall not exceed $5,000.
“(4) 2 or more fees may be prescribed for the same chargeable matter.
“(5) Neither of subsections (1) and (2) limits the generality of the other or of section 4.
“6. (1) Subject to subsection (2), where the regulations prescribe a fee for a chargeable matter, the fee shall be paid to the Commonwealth for that matter.
“(2) Despite subsection (1), where, by virtue of subsection 4 (2), the regulations prescribe a fee for a chargeable matter, the fee shall be paid to the Commonwealth for that matter if, and only if, the fee is imposed by another Act.
“7. Despite section 6, where but for this section the fee, or the total of the fees, payable under that section for a chargeable matter would exceed $25,000, so much of that fee, or of that total, as exceeds $25,000 is not payable.
“8. (1) Where:
(a) a fee is payable under section 6 for the lodgment of a document; and
(b) the document is submitted for lodgment without payment of the fee;
the document shall be taken not to have been lodged until the fee is paid.
“(2) Subsection (1) does not apply where, at the time when the document is submitted for lodgment, the amount of the fee cannot be ascertained, but if the Commission, before or at that time, requires under section 11 the payment of a deposit on account of the fee, the document shall be taken not to have been lodged until the deposit or the fee has been paid.
“9. (1) Where a fee is payable under section 6 for a matter involving the doing of an act by the Ministerial Council or the Commission, the Ministerial Council or the Commission shall not do that act until the fee is paid.
“(2) Subsection (1) does not prohibit the doing of the act at a particular time if, as at that time:
(a) the amount of the fee cannot be ascertained; and
(b) if the Commission has required under section 11 the payment of a deposit on account of the fee—the deposit has been paid.
“10. Sections 8 and 9 have effect despite anything in the
“11. Where the amount of a fee payable under section 6 for:
(a) the lodgment of a document; or
(b) a matter involving the doing of an act by the Ministerial Council or the Commission;
cannot be ascertained, the Commission may:
(c) before or at the time when the document is submitted for lodgment; or
(d) before the Ministerial Council or the Commission does the act;
as the case may be, require the payment to the Commission, on account of the fee, of a deposit of a specified amount that the Commission considers it reasonable to expect will be the amount of the fee.
“12. (1) This section applies where the amount of a fee payable under section 6 cannot be ascertained when the fee becomes payable, but at a later time becomes able to be ascertained.
“(2) If a person has paid a deposit on account of the fee, the Commission shall apply towards payment of the fee so much of the deposit as does not exceed the amount of the fee and:
(a) if the amount of the deposit exceeds the amount of the fee—the Commission shall refund to the person the amount of the excess; or
(b) if the amount of the fee exceeds the amount of the deposit—as from the later time, so much of the fee as exceeds the amount of the deposit is a debt due to the Commonwealth and payable by the person.
“(3) Otherwise, the fee is, as from the later time, a debt due to the Commonwealth and payable by the person whom the Commission determines in writing to be the person who it is reasonable to expect would have paid the fee had the fee been able to be ascertained when it became payable.
“13. Nothing in this Act prevents the Commonwealth from:
(a) waiving or reducing, in a particular case or in particular classes of cases, fees that would otherwise be payable under this Act; or
(b) refunding, in whole or in part, in a particular case or in particular classes of cases, fees paid under this Act.
“14. The Commission may recover in a court of competent jurisdiction a debt due under this Act.
“15. Nothing in this Act shall be taken to impose taxation.
“16. To avoid doubt, nothing in this Act or in the
(a) imposes on the Commission a duty to allow the inspection or search of a register or document, or to make available information; or
(b) confers a right to inspect or search a register or document or to have information made available;
except so far as such a duty or right would exist under some other law but for the effect of section 9.”.
“3. (1) In this Act, unless the contrary intention appears: ‘act’ includes thing;
‘chargeable matter’ means a matter of a kind referred to in any of paragraphs 4 (1) (a) to (h), inclusive;
‘for’, in relation to a fee, includes in respect of;
‘lodge’ means lodge with the Commission.
“(2) Subject to subsection (1), an expression has the same meaning in this Act as in the
“(3) The
“4. (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing fees for:
(a) the lodgment of documents under the
Securities Industry Act 1980 ;(b) the registration of documents under that Act;
(c) the inspection or search of registers kept by, or documents in the custody of, the Commission under that Act;
(d) the making available by the Commission, under that Act, of information (whether in the form of a document or otherwise);
(e) the production by the Commission, under a subpoena, of such registers or documents;
(f) the issuing of documents or copies of documents, the granting of licences, consents or approvals, or the doing of other acts, by the Ministerial Council or the Commission under that Act;
(g) the making of inquiries of, or applications to, the Ministerial Council or the Commission in relation to matters arising under that Act; and
(h) the submission to the Commission of documents for examination by the Commission.
“(2) The power conferred by subsection (1) extends, by virtue of this subsection but not otherwise, to prescribing fees that, but for subsection 6 (2), could not be prescribed under this Act unless it were a law imposing taxation but that could be if it were.
“(3) The Governor-General’s power to make regulations shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council.
“5. (1) The regulations may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
“(2) The regulations may provide for a fee for a chargeable matter to be determined by reference to a prescribed matter or prescribed matters, whether or not the prescribed matter, or any of the prescribed matters, has a direct or indirect connection with the chargeable matter.
“(3) A fee prescribed as a stated amount shall not exceed $5,000.
“(4) 2 or more fees may be prescribed for the same chargeable matter.
“(5) Neither of subsections (1) and (2) limits the generality of the other or of section 4.
“6. (1) Subject to subsection (2), where the regulations prescribe a fee for a chargeable matter, the fee shall be paid to the Commonwealth for that matter.
“(2) Despite subsection (1), where, by virtue of subsection 4 (2), the regulations prescribe a fee for a chargeable matter, the fee shall be paid to the Commonwealth for that matter if, and only if, the fee is imposed by another Act.
“7. Despite section 6, where but for this section the fee, or the total of the fees, payable under that section for a chargeable matter would exceed $25,000, so much of that fee, or of that total, as exceeds $25,000 is not payable.
“8. (1) Where:
(a) a fee is payable under section 6 for the lodgment of a document; and
(b) the document is submitted for lodgment without payment of the fee;
the document shall be taken not to have been lodged until the fee is paid.
“(2) Subsection (1) does not apply where, at the time when the document is submitted for lodgment, the amount of the fee cannot be ascertained, but if the Commission, before or at that time, requires under section 11 the payment of a deposit on account of the fee, the document shall be taken not to have been lodged until the deposit or the fee has been paid.
“9. (1) Where a fee is payable under section 6 for a matter involving the doing of an act by the Ministerial Council or the Commission, the Ministerial Council or the Commission shall not do that act until the fee is paid.
“(2) Subsection (1) does not prohibit the doing of the act at a particular time if, as at that time:
(a) the amount of the fee cannot be ascertained; and
(b) if the Commission has required under section 11 the payment of a deposit on account of the fee—the deposit has been paid.
“10. Sections 8 and 9 have effect despite anything in the
“11. Where the amount of a fee payable under section 6 for:
(a) the lodgment of a document; or
(b) a matter involving the doing of an act by the Ministerial Council or the Commission;
cannot be ascertained, the Commission may:
(c) before or at the time when the document is submitted for lodgment; or
(d) before the Ministerial Council or the Commission does the act;
as the case may be, require the payment to the Commission, on account of the fee, of a deposit of a specified amount that the Commission considers it reasonable to expect will be the amount of the fee.
“12. (1) This section applies where the amount of a fee payable under section 6 cannot be ascertained when the fee becomes payable, but at a later time becomes able to be ascertained.
“(2) If a person has paid a deposit on account of the fee, the Commission shall apply towards payment of the fee so much of the deposit as does not exceed the amount of the fee and:
(a) if the amount of the deposit exceeds the amount of the fee—the Commission shall refund to the person the amount of the excess; or
(b) if the amount of the fee exceeds the amount of the deposit—as from the later time, so much of the fee as exceeds the amount of the deposit is a debt due to the Commonwealth and payable by the person.
“(3) Otherwise, the fee is, as from the later time, a debt due to the Commonwealth and payable by the person whom the Commission determines in writing to be the person who it is reasonable to expect would have paid the fee had the fee been able to be ascertained when it became payable.
“13. Nothing in this Act prevents the Commonwealth from:
(a) waiving or reducing, in a particular case or in particular classes of cases, fees that would otherwise be payable under this Act; or
(b) refunding, in whole or in part, in a particular case or in particular classes of cases, fees paid under this Act.
“14. The Commission may recover in a court of competent jurisdiction a debt due under this Act.
“15. Nothing in this Act shall be taken to impose taxation.
“16. To avoid doubt, nothing in this Act or in the
(a) imposes on the Commission a duty to allow the inspection or search of a register or document, or to make available information; or
(b) confers a right to inspect or search a register or document or to have information made available;
except so far as such a duty or right would exist under some other law but for the effect of section 9.”.
“3. (1) In this Act, unless the contrary intention appears:
‘act’ includes thing;
‘chargeable matter’ means a matter of a kind referred to in any of paragraphs 4 (1) (a) to (h), inclusive;
‘for’, in relation to a fee, includes in respect of;
‘lodge’ means lodge with the Commission.
“(2) Subject to subsection (1), an expression has the same meaning in this Act as in the
“(3) The
“4. (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing fees for:
(a) the lodgment of documents under the
Futures Industry Act 1986 ;(b) the registration of documents under that Act;
(c) the inspection or search of registers kept by, or documents in the custody of, the Commission under that Act;
(d) the making available by the Commission, under that Act, of information (whether in the form of a document or otherwise);
(e) the production by the Commission, under a subpoena, of such registers or documents;
(f) the issuing of documents or copies of documents, the granting of licences, consents or approvals, or the doing of other acts, by the Ministerial Council or the Commission under that Act;
(g) the making of inquiries of, or applications to, the Ministerial Council or the Commission in relation to matters arising under that Act; and
(h) the submission to the Commission of documents for examination by the Commission.
“(2) The power conferred by subsection(1) extends, by virtue of this subsection but not otherwise, to prescribing fees that, but for subsection 6 (2), could not be prescribed under this Act unless it were a law imposing taxation but that could be if it were.
“(3) The Governor-General’s power to make regulations shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council.
“5. (1) The regulations may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
“(2) The regulations may provide for a fee for a chargeable matter to be determined by reference to a prescribed matter or prescribed matters, whether or not the prescribed matter, or any of the prescribed matters, has a direct or indirect connection with the chargeable matter.
“(3) A fee prescribed as a stated amount shall not exceed $5,000.
“(4) 2 or more fees may be prescribed for the same chargeable matter.
“(5) Neither of subsections (1) and (2) limits the generality of the other or of section 4.
“6. (1) Subject to subsection (2), where the regulations prescribe a fee for a chargeable matter, the fee shall be paid to the Commonwealth for that matter.
“(2) Despite subsection (1), where, by virtue of subsection 4 (2), the regulations prescribe a fee for a chargeable matter, the fee shall be paid to the Commonwealth for that matter if, and only if, the fee is imposed by another Act.
“7. Despite section 6, where but for this section the fee, or the total of the fees, payable under that section for a chargeable matter would exceed $25,000, so much of that fee, or of that total, as exceeds $25,000 is not payable.
“8. (1) Where:
(a) a fee is payable under section 6 for the lodgment of a document; and
(b) the document is submitted for lodgment without payment of the fee;
the document shall be taken not to have been lodged until the fee is paid.
“(2) Subsection (1) does not apply where, at the time when the document is submitted for lodgment, the amount of the fee cannot be ascertained, but if the Commission, before or at that time, requires under section 11 the payment of a deposit on account of the fee, the document shall be taken not to have been lodged until the deposit or the fee has been paid.
“9. (1) Where a fee is payable under section 6 for a matter involving the doing of an act by the Ministerial Council or the Commission, the Ministerial Council or the Commission shall not do that act until the fee is paid.
“(2) Subsection (1) does not prohibit the doing of the act at a particular time if, as at that time:
(a) the amount of the fee cannot be ascertained; and
(b) if the Commission has required under section 11 the payment of a deposit on account of the fee—the deposit has been paid.
“10. Sections 8 and 9 have effect despite anything in the
“11. Where the amount of a fee payable under section 6 for:
(a) the lodgment of a document; or
(b) a matter involving the doing of an act by the Ministerial Council or the Commission;
cannot be ascertained, the Commission may:
(c) before or at the time when the document is submitted for lodgment; or
(d) before the Ministerial Council or the Commission does the act;
as the case may be, require the payment to the Commission, on account of the fee, of a deposit of a specified amount that the Commission considers it reasonable to expect will be the amount of the fee.
“12. (1) This section applies where the amount of a fee payable under section 6 cannot be ascertained when the fee becomes payable, but at a later time becomes able to be ascertained.
“(2) If a person has paid a deposit on account of the fee, the Commission shall apply towards payment of the fee so much of the deposit as does not exceed the amount of the fee and:
(a) if the amount of the deposit exceeds the amount of the fee—the Commission shall refund to the person the amount of the excess; or
(b) if the amount of the fee exceeds the amount of the deposit—as from the later time, so much of the fee as exceeds the amount of
the deposit is a debt due to the Commonwealth and payable by the person.
“(3) Otherwise, the fee is, as from the later time, a debt due to the Commonwealth and payable by the person whom the Commission determines in writing to be the person who it is reasonable to expect would have paid the fee had the fee been able to be ascertained when it became payable.
“13. Nothing in this Act prevents the Commonwealth from:
(a) waiving or reducing, in a particular case or in particular classes of cases, fees that would otherwise be payable under this Act; or
(b) refunding, in whole or in part, in a particular case or in particular classes of cases, fees paid under this Act.
“14. The Commission may recover in a court of competent jurisdiction a debt due under this Act.
“15. Nothing in this Act shall be taken to impose taxation.
“16. To avoid doubt, nothing in this Act or in the
(a) imposes on the Commission a duty to allow the inspection or search of a register or document, or to make available information; or
(b) confers a right to inspect or search a register or document or to have information made available;
except so far as such a duty or right would exist under some other law but for the effect of section 9.”.
1. No. 89, 1981, as amended. For previous amendments, see No. 153, 1981; Nos. 26 and 80, 1982; No. 108, 1983; No. 13, 1984; Nos. 140, 192 and 193, 1985; Nos. 68 and 163, 1986; and Nos. 6 and 99, 1987.
2. No. 66, 1980, as amended. For previous amendments, see Nos. 3, 96 and 153, 1981; No. 26, 1982; No. 108, 1983; No. 13, 1984; No. 192, 1985; No. 74, 1986; and No. 6, 1987.
3. No. 72, 1986.
4. No. 68, 1980, as amended. For previous amendments, see Nos. 4, 98 and 153, 1981; No. 108, 1983; No. 13, 1984; No. 192, 1985; and No. 6, 1987.
5. No. 90, 1981, as amended. For previous amendments, see No. 153, 1981; and No. 120, 1985.
6. No. 65, 1980, as amended. For previous amendments, see No. 95, 1981.
7. No. 67, 1980, as amended. For previous amendments, see Nos. 97 and 153, 1981.
8. No. 73, 1986.
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House of Representatives on 12 April 1989
Senate on 26 May 1989
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