Corporate Collective Investment Vehicle Framework and Other Measures Act 2022 (Cth)
This is a compilation of the
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
For more information about any editorial changes made in this compilation, see the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
This Act is the
Corporate Collective Investment Vehicle Framework and Other Measures Act 2022 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 22 February 2022 |
Schedules 1, 2 and 3 | 1 July 2022. | 1 July 2022 |
Schedule 4 | Immediately after the commencement of the provisions covered by table item 2. However, Schedule 4 does not commence at all if Schedule 2 to the | 1 July 2022 |
Schedule 5, Parts 1 and 2 | 1 July 2022. | 1 July 2022 |
Schedule 5, Part 3 | A single day to be fixed by Proclamation. However, if the provisions do not commence before 1 January 2025, they commence on that day. | |
Schedule 6, Part 1 | The first 1 January, 1 April, 1 July or 1 October to occur after the day this Act receives the Royal Assent. | 1 April 2022 |
Schedule 6, Part 2 | The later of:
However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. | 1 April 2022 (paragraph (a) applies) |
Schedule 7 | The first 1 January, 1 April, 1 July or 1 October to occur after the day this Act receives the Royal Assent. | 1 April 2022 |
Schedule 8, Part 1 | The day after this Act receives the Royal Assent. | 23 February 2022 |
Schedule 8, Part 2 | The first 1 January, 1 April, 1 July or 1 October to occur after the day this Act receives the Royal Assent. | 1 April 2022 |
Schedule 8, Part 3 | Immediately after the commencement of Part 2 of Schedule 2 to the | 1 July 2022 |
Schedule 8, Part 4 | Immediately after the commencement of item 143 of Schedule 4 to the | 4 April 2021 |
Schedule 9 | The day after this Act receives the Royal Assent. | 23 February 2022 |
Schedule 10 | The first 1 January, 1 April, 1 July or 1 October to occur after the day this Act receives the Royal Assent. | 1 April 2022 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Note: The provisions of a legislative instrument (the
principal instrument ) amended or inserted by this Act, and any other provisions of the principal instrument, may be amended or repealed by a legislative instrument made under the enabling provision for the principal instrument (see subsection 13(5) of theLegislation Act 2003 ).
Schedule 1 — Corporate collective investment vehicles: main amendments
Add:
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Omit “Note”, substitute “Note 1”.
Add:
Note 2: For corporate collective investment vehicles, see Chapter 8B.
Insert:
The objects of this Chapter are:
(a) to provide a regulatory framework for corporate collective investment vehicles that is fair, efficient and competitive; and
(b) together with Chapter 7, to promote confident and informed decision making by consumers of financial products and services related to shares in corporate collective investment vehicles.
The requirements for registration of a company as a CCIV are as follows:
(a) the company is a company limited by shares;
(b) the company has a constitution;
(c) the sole proposed director of the company is a public company that holds an Australian financial services licence authorising it to operate the business and conduct the affairs of a CCIV;
(d) the company will, upon registration, have at least one sub‑fund;
(e) each sub‑fund of the company will, upon registration, have at least one member;
(f) a notice under subsection 1222A(4) (about whether a CCIV is to be a retail CCIV or a wholesale CCIV) has been lodged with the application;
(g) if the company will, on registration, be a retail CCIV—the company has a compliance plan.
Note: CCIV is short for corporate collective investment vehicle, which is a type of company that can be registered under this Act: see section 112.
(1) This section applies in relation to an application for registration made under subsection 117(1) if the type of company that is proposed to be registered under this Act is a CCIV.
(2) The application is not required to state the information mentioned in paragraphs 117(2)(d), (e), (f), (ma) and (mb).
(3) In addition to the information required by subsection 117(2) as modified by subsection (2) of this section, the application must also state:
(a) the name, and the address of the registered office, of the public company that consents in writing to become the director of the CCIV; and
(b) the proposed name of each sub‑fund the CCIV is to have when it is registered; and
(c) for each such proposed sub‑fund:
(i) which of the members identified under paragraph 117(2)(c) are to be members of the sub‑fund; and
(ii) which of the shares identified under paragraph 117(2)(k) are to be referable to the sub‑fund.
Note: For paragraph (b), see section 1222V.
(4) A notice stating whether the CCIV is to be a retail CCIV or a wholesale CCIV must be lodged with the application.
(5) A copy of the CCIV’s constitution must be lodged with the application.
Note: The requirement for a CCIV to have a constitution is set out in section 1223B.
(6) If the CCIV is to be a retail CCIV, a copy of the compliance plan signed by all the directors of the proposed corporate director of the CCIV must be lodged with the application.
Note: The requirement for a retail CCIV to have a compliance plan is set out in section 1226.
(7) Subsection 117(5) applies as if the consents referred to in subsection (3) of this section were referred to in subsection 117(2).
A body may not be taken under section 5H to be registered under this Act as a CCIV.
If:
(a) an application to register a company as a CCIV is lodged under section 117; and
(b) the company meets the requirements for registration as a CCIV set out in section 1222;
ASIC may take the steps set out in paragraphs 118(1)(a), (b) and (c) for the company.
Note 1: The CCIV comes into existence on registration: see section 119.
Note 2: ASIC must also register at least one sub‑fund of the CCIV: see paragraph 1222(d) and section 1222R.
(1) A public company becomes the director of a CCIV on registration if the public company is specified in the application with its consent as the proposed corporate director of the CCIV.
(2) A person becomes a member of a CCIV on registration if the person is specified in the application with their consent as a proposed member of the CCIV.
Note: The shares taken to be issued to the member are those specified in the application: see subsection 120(2).
(3) Subsection 120(1) does not apply in relation to a CCIV.
(1) Subsection 148(1) applies to a CCIV as if the reference to subsections (2) and (3) of section 148 were instead a reference to subsection (2) of this section.
(2) A CCIV must have the expression “Corporate Collective Investment Vehicle” at the end of its name.
Section 149 has effect as if the following item were added to the table in subsection (1) of that section:
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Section 156 has effect as if paragraph 156(1)(a) included a reference to the words “Corporate Collective Investment Vehicle” (or an abbreviation of those words).
No application may be lodged with ASIC under section 157A in relation to a CCIV.
(1) A CCIV is a
retail CCIV if:
(a) the CCIV satisfies the retail CCIV test in section 1222K; or
(b) the CCIV is notified as a retail CCIV (see section 1222L).
(2) A CCIV that is not a retail CCIV is a
wholesale CCIV .
(1) A CCIV satisfies the retail CCIV test in this section if any of the following apply:
(a) at least one member of the CCIV is covered by subsection (2) (about protected retail clients);
(b) at least one member of the CCIV is covered by subsection (3) (about protected clients under custodial arrangements);
(c) at least one member of the CCIV is covered by subsection (4) (about protected members of passport funds).
When a person is a protected retail client of a CCIV
(2) For the purposes of paragraph (1)(a), a person is covered by this subsection in relation to a CCIV if all of the following apply:
(a) the person acquires a security (within the meaning of Chapter 7) issued by the CCIV, by way of:
(i) an issue of the security to the person (rather than a transfer of the security to the person); or
(ii) a transfer of the security to the person in circumstances described in subsection 1012C(5), (6) or (8) (secondary sales that require a Product Disclosure Statement);
(b) the person acquired the security as a retail client for the purposes of Chapter 7;
(c) the person is not associated (within the meaning of subsection 1241S(3)) with the CCIV;
(d) if the person acquired the security by way of an issue—the issue was not made in a situation, or pursuant to an offer made in a situation, to which section 1012E (about small scale offerings) applies.
Note: Section 1012E applies to financial products that are securities in a CCIV: see subsection 1241S(6).
When a person is a protected client under a custodial arrangement
(3) For the purposes of paragraph (1)(b), a person is covered by this subsection in relation to a CCIV if all of the following apply:
(a) an acquisition of a security (within the meaning of Chapter 7) in the CCIV occurs pursuant to an instruction given by the person under a custodial arrangement (within the meaning of section 1012IA);
(b) if there were an equivalent direct acquisition (within the meaning of subsection 1012IA(2)) by the person, the person would acquire the security as a retail client for the purposes of Chapter 7;
(c) the person is not associated (within the meaning of subsection 1241S(3)) with the CCIV.
When a person is a protected passport fund member
(4) For the purposes of paragraph (1)(c), a person is covered by this subsection in relation to a CCIV if:
(a) a sub‑fund of the CCIV is an Australian passport fund; and
(b) the person became a member of the sub‑fund (whether in this jurisdiction or any host economy for the fund):
(i) on the expectation that the sub‑fund would become an Australian passport fund; or
(ii) after the sub‑fund became an Australian passport fund; and
(c) the person:
(i) is not, and has not at any time been, the corporate director of the CCIV; and
(ii) is not a related party of an entity that is, or has at any time been, the corporate director of the CCIV.
Note: See section 1216B for the circumstances in which a person becomes a member of a fund on the expectation that it would become an Australian passport fund.
Regulations
(5) The regulations may do either or both of the following:
(a) prescribe additional circumstances in which a person is covered by subsection (2), (3) or (4) in relation to a CCIV;
(b) provide that a particular class of person is not covered by subsection (2), (3) or (4) in relation to a CCIV.
(1) For the purposes of paragraph 1222J(1)(b), a CCIV is notified as a retail CCIV if:
(a) the most recent notice lodged with ASIC under this section is a notice that the CCIV is, or wishes to be, a retail CCIV; or
(b) both:
(i) the notice required by subsection 1222A(4) to be lodged with the application to register the CCIV stated that the CCIV was to be a retail CCIV; and
(ii) the CCIV has not lodged a notice with ASIC under this section stating that the CCIV is eligible to be, and wishes to be, a wholesale CCIV.
(2) Subject to this section, a CCIV may at any time:
(a) lodge with ASIC a notice in the prescribed form stating that the CCIV is, or wishes to be, a retail CCIV; or
(b) lodge with ASIC a notice in the prescribed form stating that the CCIV is eligible to be, and wishes to be, a wholesale CCIV.
Note: A CCIV that lodges a notice under paragraph (2)(b) will be a retail CCIV despite the notice if it is not eligible to be a wholesale CCIV because it passes the retail CCIV test: see section 1222J. Lodging a notice under paragraph (2)(b) in this situation is an offence: see subsection (7).
When a retail CCIV notice must be lodged
(3) A CCIV must lodge a notice under paragraph (2)(a) if, because of the operation of paragraph 1222J(1)(a) (about the retail CCIV test), the CCIV becomes a retail CCIV.
(4) A notice required by subsection (3) must be lodged within 2 business days of the CCIV becoming a retail CCIV.
(5) An offence based on subsection (3) is an offence of strict liability.
(6) In any proceedings against a person for an offence based on subsection (3), it is a defence if at the relevant time the person did not know, and could not reasonably be expected to have known, that the CCIV satisfied the retail CCIV test.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the
Criminal Code .
When a wholesale CCIV notice must not be lodged
(7) A CCIV commits an offence if:
(a) the CCIV lodges a notice under paragraph (2)(b); and
(b) the CCIV satisfies the retail CCIV test.
(8) An offence based on subsection (7) is an offence of strict liability.
The following table sets out the main provisions of this Act that apply only in relation to retail CCIVs. If a provision is not set out in this table, disregard that fact in deciding whether or not the provision applies only to retail CCIVs.
1 | A sub‑fund of a retail CCIV may be registered as an Australian passport fund | Part 8A.3 |
2 | ASIC may direct a retail CCIV to modify its constitution | section 1223C |
3 | Content requirements for the constitution of a retail CCIV | sections 1223G and 1223H |
4 | Duties owed by a director of a retail CCIV | subsection 1224D(2) |
5 | The corporate director of a retail CCIV must have external directors | section 1224G |
6 | Extended responsibility of corporate director of a retail CCIV for certain acts of agents | section 1224M |
7 | Limitation on right of the corporate director of a retail CCIV to fees and indemnities | section 1224N |
8 | Limitation on right of the corporate director of a retail CCIV to acquire shares in the CCIV | section 1224P |
9 | Duties owed by the officers of the corporate director of a retail CCIV | section 1225 |
10 | Duties owed by the employees of the corporate director of a retail CCIV | section 1225F |
11 | Requirement for a retail CCIV to have a compliance plan | Division 4 of Part 8B.3 |
12 | Requirement for member approval for certain related party transactions relating to retail CCIVs (application of Chapter 2E) | Subdivision A of Division 5 of Part 8B.3 |
13 | Further requirements for redemptions of shares by a retail CCIV | sections 1230G to 1230K |
14 | Requirements for self‑acquisition by retail CCIV | subsection 1231J(2) |
15 | Part 2M.3 (financial reporting) | section 1232 |
The following must not be included in the official list of a prescribed financial market operated in this jurisdiction:
(a) a wholesale CCIV;
(b) a retail CCIV that has more than one sub‑fund;
(c) a sub‑fund of a wholesale CCIV;
(d) a sub‑fund of a retail CCIV that has more than one sub‑fund.
Note 1: This section does not prohibit either or both of the following from being included in the official list of a prescribed financial market operated in this jurisdiction:
(a) a sub‑fund of a retail CCIV that has only one sub‑fund;
(b) that retail CCIV.
Note 2: A retail CCIV will be a listed company if its single sub‑fund is included in such an official list even if the retail CCIV is not so included (see the definition of
listed in section 9).
Part 2B.7 (about changing company type) does not apply to a CCIV.
(1) A
sub‑fund of a CCIV is all or part of the business of the CCIV that is registered as a sub‑fund under section 1222S.Note: A sub‑fund of a CCIV may be registered as a passport fund: see Part 8A.3.
(2) A sub‑fund does not have legal personality.
(3) A person is a
member of a sub‑fund of a CCIV if the person:
(a) is a member of the CCIV; and
(b) holds one or more shares that are referable to the sub‑fund.
Note: For when a share is referable to a sub‑fund, see section 1230.
If ASIC registers a CCIV, ASIC must also register one or more sub‑funds of the CCIV.
Note: If ASIC deregisters a sub‑fund, and as a result the CCIV has no sub‑funds, ASIC must deregister the CCIV: see section 1239K.
Registration of initial sub‑funds
(1) ASIC may register a sub‑fund of a CCIV if:
(a) ASIC registers the CCIV; and
(b) the proposed name of the sub‑fund is specified in the application to register the CCIV.
Registration of further sub‑funds
(2) ASIC may also register a sub‑fund of a CCIV if an application to register the sub‑fund is lodged under section 1222U.
ASIC to give sub‑fund an ARFN
(3) If ASIC registers a sub‑fund, ASIC must give the sub‑fund an ARFN.
ASIC must keep record of registration
(4) ASIC must keep a record of the registration. Subsections 1274(2) and (5) apply to the record as if it were a document lodged with ASIC.
(1) A sub‑fund of a CCIV is established at the beginning of the day on which the sub‑fund is registered.
(2) The sub‑fund’s name is the name specified in ASIC’s record of the registration.
(1) To register a sub‑fund of a CCIV, a person may lodge an application with ASIC.
Note: A CCIV must have at least one sub‑fund when it is first registered: see section 1222R.
(2) The application must state:
(a) the name and ACN of the CCIV; and
(b) the proposed name of the sub‑fund; and
(c) the name and address of each person who consents to become a member of the sub‑fund; and
(d) the following:
(i) the number and class of shares each member agrees in writing to take up;
(ii) the amount (if any) each member agrees in writing to pay for each share;
(iii) whether the shares each member agrees in writing to take up will be fully paid on registration;
(iv) if that amount is not to be paid in full on registration—the amount (if any) each member agrees in writing to be unpaid on each share;
(v) whether or not the shares each member agrees in writing to take up will be beneficially owned by the member on registration.
(3) The application must be in the prescribed form.
CCIV using ACN
(1) If a CCIV has as its name the expression “Australian Company Number” followed by the CCIV’s ACN, a sub‑fund of the CCIV may have as its name the expression “Australian Registered Fund Number” followed by the sub‑fund’s ARFN.
CCIV using available name
(2) If a CCIV has as its name an available name, a sub‑fund of the CCIV may have as its name an expression comprising the following 3 elements, in the following order:
(a) first element—the CCIV’s name (without the words “Corporate Collective Investment Vehicle” at the end of the name);
(b) second element—a name that meets the requirements in subsection (3);
(c) third element—the expression “Sub‑fund”.
(3) A name meets the requirements in this subsection unless the name is:
(a) identical to a name that is used as the second element of the name of another sub‑fund of the same CCIV; or
(b) identical to a name that is reserved by ASIC in respect of another person who is not the person applying to have the name; or
(c) unacceptable for registration under the regulations.
(1) A CCIV must set out a sub‑fund’s name and ARFN on all its public documents and negotiable instruments that relate to the sub‑fund.
(2) An offence based on subsection (1) is an offence of strict liability.
(1) The abbreviations set out in the following table may be used:
(a) instead of words that this Act requires to be part of a sub‑fund’s name or to be included in a document or negotiable instrument; and
(b) instead of words that are part of a sub‑fund’s name; and
(c) with or without full stops.
1 | Sub‑fund | SF |
2 | Australian Registered Fund Number | ARFN |
3 | Australian | Aust |
4 | Number | No |
5 | and | & |
(2) If a sub‑fund’s name includes any of these abbreviations, the word or words corresponding to the abbreviation may be used instead.
(1) To change the name of a sub‑fund of a CCIV, the CCIV may lodge an application to ASIC in the prescribed form stating the proposed name of the sub‑fund.
(2) However, no application may be lodged with ASIC under subsection (1) while the sub‑fund is in liquidation.
(3) If the proposed name meets the requirements of section 1222V, ASIC must change the sub‑fund’s name by altering ASIC’s record of the sub‑fund’s registration to reflect the change. The change of name takes effect when ASIC alters ASIC’s record of the sub‑fund’s registration.
(1) ASIC may direct a CCIV in writing to change the name of a sub‑fund of the CCIV within 2 months if:
(a) the name should not have been registered; or
(b) ASIC has directed the CCIV to change its name under section 158.
(2) The CCIV must comply with the direction within 2 months after being given it.
(3) An offence based on subsection (2) is an offence of strict liability.
(4) If the CCIV does not comply with subsection (2), ASIC may change the sub‑fund’s name to the expression “Australian Registered Fund Number” followed by the sub‑fund’s ARFN. ASIC does this by altering ASIC’s record of the sub‑fund’s registration to reflect the change.
Note: For ASIC’s record of the registration of a sub‑fund, see subsection 1222S(4).
(5) A change of name under subsection (4) takes effect when ASIC alters ASIC’s record of the sub‑fund’s registration.
A change of the name of a sub‑fund of a CCIV does not:
(a) create a legal entity; or
(b) affect the sub‑fund’s existing property, rights or obligations; or
(c) render defective any legal proceedings by or against the CCIV and relating to the sub‑fund.
(1) The register of members kept by a CCIV in accordance with section 169 must, in addition to the information mentioned in subsection 169(3), also show the following:
(a) the sub‑fund of the CCIV to which each share is referable;
(b) if the CCIV holds a share in the CCIV:
(i) the sub‑fund of the CCIV to which the share is referable; and
(ii) the other sub‑fund of the CCIV for which the share has been acquired;
(c) if another CCIV holds a share in the CCIV:
(i) the sub‑fund of the CCIV to which the share is referable; and
(ii) the sub‑fund of the other CCIV for which the share has been acquired.
(2) The register of option holders kept by a CCIV in accordance with section 170 must, as part of the description of an unissued share mentioned in paragraph 170(1)(d), also show the following:
(a) the sub‑fund of the CCIV to which the share is referable;
(b) if the CCIV holds an option over the share:
(i) the sub‑fund of the CCIV to which the share is referable; and
(ii) the other sub‑fund of the CCIV for which the option over the share has been acquired;
(c) if another CCIV holds an option over the share:
(i) the sub‑fund of the CCIV to which the share is referable; and
(ii) the sub‑fund of the other CCIV for which the option over the share has been acquired.
(3) The register of debenture holders kept by a CCIV in accordance with section 171 must also contain information about the following:
(a) the sub‑fund of the CCIV to which each debenture is referable;
(b) if the CCIV holds a debenture issued by the CCIV:
(i) the sub‑fund of the CCIV to which the debenture is referable; and
(ii) the other sub‑fund of the CCIV for which the debenture has been acquired;
(c) if another CCIV holds a debenture issued by the CCIV:
(i) the sub‑fund of the CCIV to which the debenture is referable; and
(ii) the sub‑fund of the other CCIV for which the debenture has been acquired.
(1) A document is taken to have been signed in accordance with subsection 127(1) if the document is signed by:
(a) 2 directors of the corporate director of the CCIV; or
(b) a director and a company secretary of the corporate director of the CCIV.
Note: If a document is signed in this way, a person will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the CCIV.
(2) A CCIV’s common seal (if any) is taken to have been fixed to a document in accordance with subsection 127(2) if:
(a) the CCIV’s common seal is fixed to the document; and
(b) the fixing of the seal is witnessed by:
(i) 2 directors of the corporate director of the CCIV; or
(ii) a director and a company secretary of the corporate director of the CCIV.
Note: If a CCIV executes a document in this way, a person will be able to rely on the assumptions in subsection 129(6) for dealings in relation to the CCIV.
(3) A CCIV may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection 127(1) or (2), as affected by this section.
(4) This section does not limit the ways in which a CCIV may execute a document (including a deed).
(5) This section does not limit Part 2B.1, as it applies to a CCIV subject to the modifications set out in this Chapter.
Note 1: A CCIV may appoint an agent: see section 126.
Note 2: Some provisions of this Chapter modify section 124, for example sections 1230 and 1231N.
(1) A section or subsection whose heading contains the words
replaceable rule does not apply as a replaceable rule to a CCIV.(2) Subsection (1) applies despite paragraph 135(1)(a).
(1) A CCIV must have a constitution. A CCIV may not repeal its constitution unless it replaces the constitution with a new constitution.
Minimum content requirements for the constitution
(2) The constitution of a CCIV must comply with the requirements applicable to the CCIV under Subdivision C.
Strict liability offence
(3) A CCIV commits an offence of strict liability if it fails to ensure it has a constitution that complies with the requirements applicable to the CCIV under Subdivision C.
(1) ASIC may direct a retail CCIV to modify its constitution, as set out in the direction, to ensure that the CCIV’s constitution complies with the content requirements applicable to the CCIV under Subdivision C. The direction is to be given by notice in writing to the CCIV.
(2) ASIC may also direct a retail CCIV to modify its constitution, as set out in the direction, to ensure that the CCIV’s constitution deals in adequate detail with:
(a) the matters required to be included in the constitution under Subdivision C; and
(b) the specification (if any) of any rights of the corporate director to be paid fees out of assets of a sub‑fund of the CCIV, as mentioned in section 1224N.
(3) Despite section 1223D, the corporate director may modify the constitution to comply with the direction.
(4) The CCIV must comply with the direction within 14 days after being given it.
(5) The CCIV must lodge with ASIC a copy of the modified constitution within 14 days after the modification.
(6) An offence based on subsection (4) or (5) is an offence of strict liability.
(1) A CCIV adopts on registration the constitution lodged with the application to register the CCIV.
(2) The constitution of a CCIV may be modified, or repealed and replaced with a new constitution:
(a) if the CCIV is a retail CCIV:
(i) by special resolution of the members of the CCIV; or
(ii) by the corporate director, if the corporate director reasonably considers the change will not adversely affect members’ rights; or
(iii) by special resolution of the members of a sub‑fund of the CCIV, if the corporate director reasonably considers the change will not adversely affect the rights of any member of any other sub‑fund of the CCIV; or
(b) if the CCIV is a wholesale CCIV—by complying with the requirements set out in the constitution for the modification or repeal.
(3) If the constitution of a CCIV is modified, or repealed and replaced with a new constitution, the CCIV must lodge with ASIC:
(a) a copy of the modification, or the new constitution; and
(b) if the corporate director of the CCIV determines a later date mentioned in paragraph (5)(b) or (c) for the modification or replacement to take effect—notice of the later date;
within 14 days after the modification or replacement.
Note: The constitution may be modified or repealed by Court order: see section 233.
(4) An offence based on subsection (3) is an offence of strict liability.
(5) If section 137 does not set the date on which the modification or repeal and replacement of a CCIV’s constitution takes effect, it takes effect on the latest of the following:
(a) the date on which the modification or the new constitution is lodged with ASIC;
(b) if the CCIV is a retail CCIV, and the corporate director determines a later date for the modification or replacement to take effect—that later date;
(c) if the CCIV is a wholesale CCIV, and a later date is determined in accordance with any requirements in the constitution of the CCIV—that later date.
(6) Section 136 does not apply to a CCIV.
In addition to the effect mentioned in subsection 140(1), a CCIV’s constitution also has effect as a contract between the corporate director and each member of the CCIV.
A wholesale CCIV’s constitution must specify the requirements that must be complied with for the CCIV to modify its constitution, or repeal its constitution and replace it with a new one.
A retail CCIV’s constitution must do the following:
(a) make provision for the establishment of sub‑funds, and classes of shares referable to sub‑funds;
(b) make provision for the method by which complaints made by members in relation to the CCIV are to be dealt with;
(c) state that the CCIV has the power to borrow or raise money;
(d) if there are to be any limits on the CCIV’s exercise of the power to borrow or raise money—sets out those limits;
(e) if the CCIV is to acquire in respect of any of its sub‑funds, one or more shares that are referable to another of its sub‑funds—make provision for such acquisitions.
(1) This section applies if all or some of the shares in a retail CCIV are redeemable shares or redeemable preference shares.
(2) The CCIV’s constitution must make provision for the shares to be redeemed. The provision must:
(a) specify a period within which a redemption must ordinarily be satisfied while section 1230H (about when a sub‑fund is liquid) applies to the sub‑fund to which the share is referable; and
(b) be fair and reasonable to the members of the sub‑fund to which the share is referable; and
(c) set out a price, or a method for determining a price, at which shares in the CCIV are to be redeemed if, at the time of the redemption, section 1230H (about when a sub‑fund is liquid) applies to the sub‑fund to which the shares are referable.
A CCIV may only have one director
(1) A CCIV must not appoint more than one director.
Note: For who can be the director of a CCIV, see sections 1224F and 1224G.
Position of director is the position of corporate director
(2) The position of director of a CCIV is the position of corporate director.
(3)
Corporate director of a CCIV means the company named in ASIC’s record of the CCIV’s registration as the corporate director or temporary corporate director of the CCIV.Note: The corporate director is first appointed through the registration process for the CCIV: see sections 1222A and 1222D.
No alternate directors
(4) There is no position of alternate director of a CCIV.
(5) The corporate director of a CCIV commits an offence if the corporate director appoints an alternate director.
Note: For the corporate director’s power to appoint an agent, see section 1224L.
Definition of director not limited
(6) This section does not limit the operation of paragraph (b) of the definition of
director in section 9 in relation to a CCIV.
(1) A CCIV must not appoint a secretary.
Note: The secretary of the corporate director is responsible for certain corporate contraventions by the CCIV: see Division 3 of this Part.
(2) A CCIV must not have any employees.
Note: However, a CCIV may appoint an agent: see section 126.
In this Act:
officer of a corporation that is a CCIV means:
(a) a director of the CCIV; or
(b) a receiver, or receiver and manager, of the property of a sub‑fund of the CCIV; or
(c) a liquidator of a sub‑fund of the CCIV; or
(d) a trustee or other person administering a compromise or arrangement made between the CCIV and someone else.
Note: Part 8B.6 is about external administration of sub‑funds.
(1) Division 1 of Part 2D.1 (about general duties) applies to a CCIV with the modifications set out in this section.
(2) In applying Division 1 of Part 2D.1 (about general duties) in relation to an officer (other than a director) of a CCIV:
(a) treat references to the best interests of the corporation as instead being references to the best interests of the sub‑fund referred to in subsection (3); and
(b) treat references to causing detriment to the corporation as instead being references to causing detriment to the sub‑fund referred to in subsection (3); and
(c) treat references to the business operations of the corporation as instead being references to the business operations of the sub‑fund referred to in subsection (3).
(3) The sub‑fund is:
(a) for a receiver, or receiver and manager, of the property of a sub‑fund of the CCIV—the sub‑fund; or
(b) for a liquidator of a sub‑fund of the CCIV—the sub‑fund; or
(c) for a trustee or other person administering a compromise or arrangement made between the CCIV and someone else—the sub‑fund on whose members or creditors the compromise or arrangement is binding.
Duties owed by a director of any CCIV
(1) A director of a CCIV must, in exercising its powers and carrying out its duties:
(a) act honestly; and
(b) act in the best interests of the members of the CCIV and, if there is a conflict between the interests of those members and its own interests, give priority to the members’ interests; and
(c) act in the best interests of the members, as a whole, of each sub‑fund of the CCIV and:
(i) if there is a conflict between the interests of the members, as a whole, of a sub‑fund and its own interests, give priority to the members’ interests; and
(ii) if there is a conflict between the interests of the members, as a whole, of a sub‑fund and the best interests of the members of the CCIV, give priority to the interests of the members of the CCIV; and
(d) have in place adequate arrangements for the management of conflicts of interest that may arise wholly, or partially, in relation to activities undertaken by the director in exercising those powers and carrying out those duties; and
(e) not make use of information acquired through being a director of the CCIV in order to:
(i) gain an improper advantage for the director or another person; or
(ii) cause detriment to the members of the CCIV.
Note: This subsection is a civil penalty provision (see section 1317E).
Additional duties owed by a director of a retail CCIV
(2) A director of a retail CCIV must, in exercising its powers and carrying out its duties:
(a) exercise the degree of care and diligence that a reasonable person would exercise in the director’s position; and
(b) treat members of the CCIV who hold shares of the same class equally; and
(c) treat members of the CCIV who hold shares of different classes fairly; and
(d) treat members of different sub‑funds of the CCIV fairly; and
(e) ensure that the CCIV’s constitution meets the requirements of this Act; and
(f) ensure that the CCIV’s compliance plan meets the requirements of section 1226A; and
(g) comply with the CCIV’s compliance plan; and
(h) ensure that:
(i) assets and liabilities of the sub‑funds of the CCIV are clearly identified; and
(ii) any property of the CCIV to which section 1233K (about property that has to be converted) applies is clearly identified; and
(iii) any liabilities of the CCIV to which section 1233M (about liabilities allocated to 2 or more sub‑funds) applies is clearly identified; and
(i) ensure that assets of a sub‑fund of the CCIV are held in the manner required by section 1234J; and
(j) ensure that the assets of a sub‑fund of the CCIV are valued at regular intervals appropriate to the nature of the assets; and
(k) ensure that all payments out of the assets of the CCIV are made in accordance with the CCIV’s constitution and this Act; and
(l) carry out or comply with any other duty, not inconsistent with this Act, that is conferred on the director by the CCIV’s constitution.
Note: This subsection is a civil penalty provision (see section 1317E).
Additional duties owed by a director of a wholesale CCIV
(3) A director of a wholesale CCIV must, in exercising its powers and carrying out its duties:
(a) exercise the degree of care and diligence that a reasonable person would exercise in the director’s position; and
(b) treat members of the CCIV who hold shares of the same class equally; and
(c) treat members of the CCIV who hold shares of different classes fairly; and
(d) treat members of different sub‑funds of the CCIV fairly.
(4) A director of a wholesale CCIV contravenes this subsection if:
(a) the director contravenes paragraph (3)(a), (b), (c) or (d); and
(b) either:
(i) the constitution of the CCIV does not exempt the director from liability for the contravention; or
(ii) the contravention was dishonest or involved a lack of good faith.
Note: This subsection is a civil penalty provision (see section 1317E).
Duties under this section prevail in case of conflict
(5) If there is a conflict between a duty owed by a director of a CCIV under this section and a duty owed by the director under Part 2D.1, the duty owed under this section prevails.
Interaction with other laws etc.
(6) Subsection (1) or (2):
(a) has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and
(b) does not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph (a).
Interaction with section 199A
(7) Section 199A does not prevent a wholesale CCIV from exempting or indemnifying a director of the CCIV from a liability incurred in relation to a contravention of subsection (3) if the contravention:
(a) is not dishonest; and
(b) does not involve a lack of good faith.
To avoid doubt, this subsection does not affect the operation of section 199A in relation to a contravention of a duty owed under Part 2D.1.
Interaction with section 199B
(8) Section 199B applies to a CCIV as if paragraph 199B(1)(b) included a reference to this section.
Note: There are additional modifications of section 199B, relevant to officers and auditors of the corporate director, in section 1225E.
The following do not apply to a CCIV:
(a) Part 2D.3 (about appointment, remuneration and cessation of appointment of directors);
(b) Part 2D.4 (about appointment of secretaries);
(c) Part 2D.5 (about public information about directors and secretaries);
(d) Part 2D.6 (about disqualification from managing corporations);
(e) Part 2D.7 (about ban on hedging remuneration of key management personnel);
(f) Part 2D.8 (about remuneration recommendations in relation to key management personnel for disclosing entities).
The only kind of person who may be appointed as the director of a CCIV is a public company that:
(a) holds an Australian financial services licence authorising it to operate the business and conduct the affairs of the CCIV; and
(b) is not a Chapter 5 body corporate.
(1) At least half of the directors of the corporate director of a retail CCIV must be external directors.
(2) A director of the corporate director is an external director if the director:
(a) is not, and has not been in the previous 2 years, an employee of the corporate director or a related body corporate; and
(b) is not, and has not been in the previous 2 years, a senior manager of the corporate director or a related body corporate; and
(c) is not, and has not been in the previous 2 years, substantially involved in business dealings, or in a professional capacity, with the corporate director or a related body corporate; and
(d) is not a member of a partnership that is, or has been in the previous 2 years, substantially involved in business dealings, or in a professional capacity, with the corporate director or a related body corporate; and
(e) does not have a material interest in the corporate director or a related body corporate; and
(f) is not a relative of a person who has a material interest in the corporate director or a related body corporate.
(3) The corporate director of a retail CCIV must not fail to comply with subsection (1) for a period exceeding 14 days (or a longer period allowed in writing by ASIC).
Fault‑based offence
(4) A person commits an offence if the person intentionally or recklessly fails to comply with subsection (3).
Strict liability offence
(5) A person commits an offence of strict liability if the person fails to comply with subsection (3).
(6) In agreeing to a longer period under subsection (3), ASIC may impose conditions to be complied with and the corporate director must comply with them.
(7) An offence based on subsection (6) is an offence of strict liability.
(1) An act done by the company named in ASIC’s record of a CCIV’s registration as the corporate director or temporary corporate director of the CCIV is effective even if:
(a) the company’s appointment as corporate director or temporary corporate director did not comply with the CCIV’s constitution or any provision of this Act; or
(b) the continuance of the company’s appointment as corporate director or temporary corporate director does not comply with the CCIV’s constitution or any provision of this Act.
(2) Subsection (1) does not deal with the question whether an effective act by a corporate director:
(a) binds the CCIV in its dealings with other people; or
(b) makes the CCIV liable to another person.
Note: The kinds of acts that this section validates are those that are only legally effective if the person doing them is a director (for example, calling a meeting of the company’s members). Sections 128 to 130 contain rules about the assumptions people are entitled to make when dealing with a company and its officers.
(1) The corporate director of a CCIV is to:
(a) operate the business and conduct the affairs of the CCIV; and
(b) perform the functions conferred on the corporate director by the CCIV’s constitution and this Act.
Note 1: If a CCIV commits an offence or contravenes a civil penalty provision, the corporate director is generally responsible: see Division 7 of this Part.
Note 2: Section 1224Q is about the exercise of powers by the corporate director while a sub‑fund is in liquidation.
(2) The corporate director of a CCIV may exercise all the powers of the CCIV except any powers that this Act or the CCIV’s constitution requires:
(a) the CCIV to exercise in general meeting; or
(b) the members of a sub‑fund of the CCIV to exercise in a meeting of members of the sub‑fund.
Subject to section 1225C (about the directors of the corporate director), section 191 does not require a director of a CCIV to give notice of an interest.
Note: Section 1225C is about the obligations of the directors of the corporate director to disclose material personal interests relating to the affairs of the CCIV.
Agents appointed by corporate director
(1) The corporate director has power to appoint an agent, or otherwise engage a person, to do anything that the corporate director is authorised to do in connection with the CCIV.
Note: A CCIV may also have an agent: see section 126.
Agents appointed by CCIV and sub‑agents
(2) An agent appointed, or a person otherwise engaged, by:
(a) an agent or person referred to in subsection (1); or
(b) the CCIV; or
(c) a person who is taken under this subsection to be an agent of the corporate director;
to do anything that the corporate director is authorised to do in connection with the CCIV is taken to be an agent appointed by the corporate director to do that thing for the purposes of this section.
Delegation
(3) Section 198D does not apply to a CCIV.
(1) Subsection (2) applies in relation to a retail CCIV for the purpose of determining whether:
(a) there is a liability to the CCIV or the CCIV’s members; or
(b) the corporate director has properly performed its duties for the purposes of section 1224N.
Note: A CCIV’s constitution may provide for the corporate director to be indemnified for liabilities—see section 1224N.
Extended liability for acts of agents
(2) If:
(a) the corporate director appoints an agent, or otherwise engages a person, under section 1224L; or
(b) an agent or person is taken under subsection 1224L(2) (about sub‑agents) to be an agent of the corporate director;
the corporate director is taken to have done (or failed to do) anything that the agent or person has done (or failed to do) because of the appointment or engagement, even if the person or agent was acting fraudulently or outside the scope of the authority or engagement.
Note: This subsection does not apply to receivers: see section 1236F.
If the corporate director of a retail CCIV is to have any rights to be paid fees out of assets of a sub‑fund of the CCIV, or to be indemnified out of assets of a sub‑fund of the CCIV for liabilities or expenses incurred in relation to the performance of its duties, those rights:
(a) must be specified in the CCIV’s constitution; and
(b) must be available only in relation to the proper performance of those duties;
and any other agreement or arrangement has no effect to the extent that it purports to confer such a right.
Note 1: ASIC may direct the CCIV to modify its constitution to ensure such rights are dealt with in adequate detail: see subsection 1223C(2).
Note 2: Sections 199A to 199C may prohibit giving an indemnity for the corporate director of a CCIV. Those sections have extended operation in relation to a CCIV: see section 1225E.
(1) The corporate director of a retail CCIV may acquire and hold a share in the CCIV, but the corporate director must only do so:
(a) for not less than the consideration that would be payable if the share were acquired by another person; and
(b) subject to terms and conditions that would not disadvantage other members.
Note: If the corporate director holds a share in the CCIV, the corporate director does so subject to section 253E, as affected by section 1228G (certain members cannot vote or be counted).
(2) A corporate director who contravenes subsection (1), and any person who is involved in a corporate director’s contravention of that subsection, contravenes this subsection.
Note 1: Section 79 defines involved.
Note 2: This subsection is a civil penalty provision (see section 1317E).
(3) A person must not intentionally be involved in a corporate director’s contravention of subsection (1).
Powers of corporate director while sub‑fund in liquidation
(1) The corporate director of a CCIV contravenes this subsection if:
(a) a sub‑fund of the CCIV is being wound up, or a provisional liquidator of a sub‑fund of the CCIV is acting; and
(b) the corporate director purports to do any of the following:
(i) carry on the business of the sub‑fund;
(ii) enter into a transaction or dealing on behalf of the CCIV affecting the property of the sub‑fund.
(2) However, subsection (1) does not apply to the extent that the corporate director is acting:
(a) with the written approval of the liquidator of the sub‑fund or the Court; or
(b) in circumstances in which, despite the fact that the sub‑fund is being wound up, the corporate director is permitted by this Act to act.
(3) Despite subsection 13.3(3) of the
Criminal Code , in a prosecution for an offence based on subsection (1) of this section, a defendant does not bear an evidential burden in relation to the matter in paragraph (2)(b).
Fault‑based offence
(4) A person commits an offence if the person contravenes subsection (1).
Strict liability offence
(5) A person commits an offence of strict liability if the person contravenes subsection (1).
Functions and powers of liquidator prevail in case of conflict
(6) If subsection (2) applies and there is a conflict between a function or power of the liquidator of the sub‑fund and a function or power of the corporate director in relation to the CCIV, the liquidator’s function or power prevails.
Effect of section
(7) This section does not remove the corporate director of a CCIV from office.
(8) Nothing in this section affects a secured creditor’s right to realise or otherwise deal with the security interest.
(9) Section 198G does not apply to a CCIV.
(10) A provision of this Act that applies despite section 198G also applies despite this section.
Definitions
(11) In this section:
liquidator includes a provisional liquidator.
Despite anything in this Subdivision, the company named in ASIC’s record of registration as the corporate director or temporary corporate director of a CCIV remains the CCIV’s corporate director until the record is altered to name another company as the CCIV’s corporate director or temporary corporate director.
If a CCIV does not have a corporate director that meets the requirements of section 1224F, an application to the Court for the appointment of a temporary corporate director of the CCIV under section 1224V may be made by any of the following:
(a) ASIC;
(b) a member, or group of members, of the CCIV.
(1) If the corporate director of a CCIV wants to retire as corporate director, it must call a members’ meeting to explain its reason for wanting to retire and to enable the members to vote on a resolution to choose a company to be the new corporate director. The resolution must be a special resolution.
(2) The notice of meeting of the CCIV’s members must:
(a) set out the corporate director’s reason for wanting to retire; and
(b) nominate as the new corporate director a company (the
nominated company ) that:
(i) meets the requirements of section 1224F; and
(ii) has consented in writing to being chosen as the new corporate director of the CCIV.
(3) If the members choose the nominated company to be the new corporate director, as soon as practicable and in any event within 2 business days after the day of the meeting, the current corporate director must lodge a notice with ASIC asking it to alter the record of the CCIV’s registration to name the nominated company as the corporate director of the CCIV.
(4) If:
(a) the members choose the nominated company to be the new corporate director; and
(b) the current corporate director does not lodge the notice required by subsection (3);
the nominated company may lodge that notice.
(5) An offence based on subsection (3) is an offence of strict liability.
(6) If the members do not choose the nominated company to be the new corporate director, an application to the Court for appointment of a temporary corporate director under section 1224V may be made by the current corporate director of the CCIV.
(1) If members of a CCIV want to replace the corporate director, the members may take action under Part 2G.4 (as that Part applies to the CCIV under section 1228A) for the calling of a meeting of the CCIV’s members to consider and vote on:
(a) a special resolution that the current corporate director should be removed; and
(b) a special resolution choosing a company to be the new corporate director.
(2) The notice of meeting of the CCIV’s members must:
(a) set out the intention to remove the current corporate director; and
(b) nominate, as the new corporate director of the CCIV, a company that:
(i) meets the requirements of section 1224F; and
(ii) has consented in writing to being appointed as the new corporate director of the CCIV.
(3) If both resolutions are passed, the CCIV is taken, on the day of the meeting, to have appointed the company nominated in the notice as the new corporate director of the CCIV.
Note: See also section 1224R (when changes take effect).
(4) The current corporate director must, as soon as practicable and in any event within 2 business days after the appointment, lodge a notice with ASIC asking it to alter the record of the CCIV’s registration to name the company as the corporate director of the CCIV.
(5) If the current corporate director does not lodge the notice required by subsection (4), the company chosen by the members to be the new corporate director may lodge that notice.
(6) An offence based on subsection (4) is an offence of strict liability.
(1) On application under section 1224S or subsection 1224T(6) or 1224X(2), the Court may:
(a) if the CCIV has a current corporate director—order the removal of the current corporate director; and
(b) order the appointment of a company as the temporary corporate director of the CCIV; and
(c) make any further orders that the Court considers appropriate.
Note: See also section 1224R (when changes take effect).
(2) The Court must not make an order under paragraph (1)(a) or (b) unless:
(a) the Court is satisfied that:
(i) the appointment is in the interests of the members of the CCIV; and
(ii) the company meets the requirements of section 1224F; and
(b) the company consents in writing to becoming the CCIV’s temporary corporate director.
(3) The person who made the application for the order must, as soon as practicable and in any event within 2 days after the Court’s order appointing the temporary corporate director, lodge a notice with ASIC informing ASIC of the appointment made by the Court.
(4) If the person referred to in subsection (3) does not lodge the notice required by that subsection, the company appointed by the Court as the temporary corporate director may lodge that notice.
(5) An offence based on subsection (3) is an offence of strict liability.
(1) This section applies if the Court appoints a temporary corporate director of a CCIV under section 1224V.
(2) The temporary corporate director must, within the period applicable under subsection (3), call a members’ meeting for the purpose of the members, by special resolution, choosing a company to be the new permanent corporate director.
(3) The temporary corporate director must call the meeting within:
(a) unless paragraph (b) applies—3 months of the appointment; or
(b) if the Court has extended the period under subsection (4)—the extended period.
(4) The Court may, on application by the temporary corporate director, grant an extension of the period referred to in paragraph (3)(a).
(5) The temporary corporate director may, within the period applicable under subsection (3), call further meetings of the CCIV’s members to consider and vote on a special resolution choosing a company to be the permanent corporate director.
(6) For the purposes of subsections (2) and (5), the written notice of the meeting must nominate as the permanent corporate director a company (which may be the temporary corporate director) that:
(a) meets the requirements of section 1224F; and
(b) has consented in writing to being appointed as the permanent corporate director of the CCIV.
(7) If the resolution is passed, the CCIV is taken, on the day of the meeting, to have appointed the company nominated in the notice as the permanent corporate director of the CCIV.
Note: See also section 1224R (when changes take effect).
(8) The current corporate director must, as soon as practicable and in any event within 2 business days after the appointment, lodge a notice with ASIC asking it to alter the record of the CCIV’s registration to name the company as the corporate director of the CCIV.
(9) If the current corporate director does not lodge the notice required by subsection (8), the company chosen by the members to be the new corporate director may lodge that notice.
(10) An offence based on subsection (2) or (8) is an offence of strict liability.
(1) This section applies if:
(a) a temporary corporate director is appointed by the Court under section 1224V; and
(b) the temporary corporate director fails to call a members’ meeting to consider and vote on a special resolution choosing a company to be the permanent corporate director within the period applicable under subsection 1224W(3).
(2) An application to the Court for the appointment of a temporary corporate director of the CCIV under section 1224V may be made by any of the following:
(a) ASIC;
(b) a member, or group of members, of the CCIV.
(1) This section applies if:
(a) a temporary corporate director is appointed by the Court under section 1224V; and
(b) within the period applicable under subsection 1224W(3), the temporary corporate director calls one or more members’ meetings to consider and vote on a special resolution choosing a company to be the permanent corporate director; and
(c) the CCIV’s members do not pass a special resolution choosing a permanent corporate director.
(2) An application to the Court for a winding up of all the sub‑funds of the CCIV must be made by the corporate director of the CCIV.
Note: For provisions about winding up a sub‑fund of a CCIV, see Division 5 of Part 8B.6.
(3) An application to the Court for a winding up of all the sub‑funds of the CCIV may be made by any of the following, if the corporate director does not do so:
(a) ASIC;
(b) a member, or group of members, of the CCIV.
(4) On an application under this section, the Court may:
(a) order the winding up of all the sub‑funds of the CCIV; and
(b) make any further orders that the Court considers appropriate.
(1) If the corporate director of a CCIV changes, the former corporate director must:
(a) as soon as practicable give the new corporate director any books in the former corporate director’s possession or control that this Act requires to be kept in relation to the CCIV; and
(b) give other reasonable assistance to the new corporate director to facilitate the change of corporate director.
(2) An offence based on subsection (1) is an offence of strict liability.
(1) If the corporate director of a CCIV changes, the rights, obligations and liabilities of the former corporate director in relation to the CCIV become rights, obligations and liabilities of the new corporate director.
(2) Despite subsection (1), the following rights and liabilities remain rights and liabilities of the former corporate director:
(a) any right of the former corporate director to be paid fees for the performance of its functions before it ceased to be the corporate director;
(b) any right of the former corporate director to be indemnified for expenses it incurred before it ceased to be the corporate director;
(c) any right, obligation or liability that the former corporate director had as a member of the CCIV;
(d) any liability for which the former corporate director could not have been indemnified out of the assets of the CCIV if it had remained the CCIV’s corporate director;
(e) any liability arising out of a contravention by the former corporate director of a provision of this Act.
(1) If the corporate director of a CCIV changes, a document relating to the CCIV:
(a) to which the former corporate director is a party, in which a reference is made to the former corporate director, or under which the former corporate director has acquired or incurred a right, obligation or liability, or might have acquired or incurred a right, obligation or liability if it had remained the corporate director; and
(b) that is capable of having effect after the change;
has effect as if the new corporate director (and not the former corporate director) were a party to it, were referred to in it or had or might have acquired or incurred the right, obligation or liability under it.
(2) Subsection (1) does not apply to a right, obligation or liability that remains a right, obligation or liability of the former corporate director because of subsection 1224ZA(2).
Despite subsection 200AB(1), for the purposes of Division 2 of Part 2D.2, a
benefit does not include a payment made by the CCIV to its corporate director if:
(a) the corporate director is entitled to the payment under provisions of the constitution; and
(b) for a retail CCIV—the provisions comply with section 1224N.
(1) Sections 200B and 200C apply in relation to a benefit given by a CCIV as if:
(a) the members whose approval is required under those provisions were the members of the sub‑fund of the CCIV that would be affected by the giving of the benefit; and
(b) the member approval mentioned in paragraph (a) were required to be given under section 200E as modified by subsection (3) of this section.
Note: If the CCIV is a retail CCIV, there are additional restrictions on giving benefits: see section 1224N.
(2) If the giving of the benefit would affect 2 or more sub‑funds of the CCIV, then the approval of each affected sub‑fund must be obtained in the way mentioned in subsection (1).
Member approval
(3) Section 200E applies in relation to a CCIV as if a reference to a general meeting were instead a reference to a meeting of the members of the affected sub‑fund.
To avoid doubt, a benefit that is a payment to the corporate director of a CCIV is not a benefit to which paragraph 200F(1)(a), subsection 200F(2), or section 200G applies.
(1) An officer of the corporate director of a retail CCIV must, in performing functions and exercising powers relating to the CCIV:
(a) act honestly; and
(b) exercise the degree of care and diligence that a reasonable person would exercise in the officer’s position; and
(c) act in the best interests of the members of the CCIV and, if there is a conflict between the interests of those members and the interests of the corporate director, give priority to the members’ interests; and
(d) act in the best interests of the members, as a whole, of each sub‑fund of the CCIV and:
(i) if there is a conflict between the interests of the members, as a whole, of a sub‑fund and the interests of the corporate director, give priority to the members’ interests; and
(ii) if there is a conflict between the interests of the members, as a whole, of a sub‑fund and the best interests of the members of the CCIV, give priority to the interests of the members of the CCIV; and
(e) not make use of information acquired through being an officer of the corporate director in order to:
(i) gain an improper advantage for the officer or another person; or
(ii) cause detriment to the members of the CCIV; and
(f) not make improper use of their position as an officer to gain, directly or indirectly, an advantage for themselves or for any other person or to cause detriment to the members of the CCIV; and
(g) take all steps that a reasonable person would take, in the officer’s position, to ensure that the corporate director complies with:
(i) this Act; and
(ii) any conditions imposed on the corporate director’s Australian financial services licence; and
(iii) the CCIV’s constitution; and
(iv) the CCIV’s compliance plan.
Note: This subsection is a civil penalty provision (see section 1317E).
(2) A person must not intentionally or recklessly contravene, or be involved in a contravention of, subsection (1).
Duties under this section prevail in case of conflict
(3) If there is a conflict between a duty owed by an officer of the corporate director of a retail CCIV under this section and a duty owed by the officer under Part 2D.1, the duty owed under this section prevails.
Interaction with other laws etc.
(4) Subsection (1):
(a) has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and
(b) does not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph (a).
A secretary of the corporate director of a CCIV contravenes subsection 188(1) if the CCIV contravenes a corporate responsibility provision.
Note: Subsection 188(1) is a civil penalty provision (see section 1317E).
For the purposes of subsection 188(1) as it applies to the secretary of the corporate director, the provisions identified in column 1 of the following table, in addition to the provisions mentioned in subsection 188(1), are taken to be
corporate responsibility provisions :
1 | (a) subsection 1222L(3); (b) subsection 1222L(7) | notifying ASIC of status as a retail CCIV or wholesale CCIV |
2 | (a) subsection 1223C(5); (b) subsection 1223D(3) | lodgement of modified or replaced constitution and notifying ASIC when changes takes effect |
3 | (a) subsection 1224T(3); (b) subsection 1224U(4); (c) subsection 1224W(8) | lodgement of notices about the corporate director of a CCIV |
4 | (a) subsection 1226(3); (b) subsection 1226D(4); (c) subsection 1226E(3) | lodgement of compliance plans etc. (retail CCIV only) |
5 | subsection 1226G(4) | lodgement of report of auditor of compliance plan (retail CCIV only) |
6 | subsection 1226K(1) | notifying ASIC when auditor of compliance plan changes (retail CCIV only) |
7 | subsection 1230J(5) | lodgement of a redemption offer |
8 | subsection 1230J(8) | notifying ASIC of the cancellation of a redemption offer |
(1) For the purposes of Division 2 of Part 2D.1, a material personal interest in a matter that relates to the affairs of a CCIV is treated as being a material personal interest in a matter that relates to the affairs of the corporate director of the CCIV.
Note: The effect of this subsection is that Division 2 of Part 2D.1 applies to directors of the corporate director of a CCIV in relation to material personal interests those directors have in matters relating to the affairs of the CCIV.
(2) Subsection (1) does not affect the operation of Division 2 of Part 2D.1 in relation to an interest that, apart from that subsection, is a material personal interest in a matter that relates to the affairs of the corporate director.
(3) For an offence based on subsection 191(1), as it applies to the director of a corporate director as a result of subsection (1) of this section, strict liability applies to the circumstance, that the director of the corporate director has a material personal interest in a matter that relates to the affairs of the CCIV.
(4) For the purposes of determining under subsection 191(2) whether the director does not need to give notice of the interest, references in that subsection to the company are taken to be references to the CCIV, unless the reference is to the director’s position as director, or officer, of the company.
(5) Nothing in this section limits:
(a) the effect sections 191 and 192 have in relation to the director of the corporate director apart from this Subdivision; or
(b) the effect section 193 has in relation to sections 191 and 192 as those sections apply as a result of this section.
Note: Section 193 is about the interaction of sections 191 and 192 with other laws etc.
(1) Section 198F applies in relation to a director of a corporate director of a CCIV as if the person were a director of the CCIV.
(2) For the purposes of subsection (1), a person is taken to cease being a director of the CCIV if either of the following occurs:
(a) the person ceases to be a director of the corporate director;
(b) the company of which the person is a director ceases to be the corporate director of the CCIV.
(1) The operation of sections 199A and 199B in relation to a CCIV and a related body corporate of a CCIV is extended by:
(a) treating an officer of the corporate director of the CCIV as an officer of the CCIV; and
(b) treating an auditor of the corporate director of the CCIV as an auditor of the CCIV.
Note: If the CCIV is a retail CCIV, there are additional restrictions: see section 1224N.
(2) For the purposes of subsection (1), section 199B applies to a CCIV as if paragraph 199B(1)(b) included a reference to section 1225.
Note: For the duties relevant to the actual director of the CCIV, see subsection 1224D(8).
(1) An employee of the corporate director of a retail CCIV must not, in performing functions and exercising powers relating to the CCIV:
(a) make use of information acquired through being an employee of the corporate director in order to:
(i) gain an improper advantage for the employee or another person; or
(ii) cause detriment to members of the CCIV; or
(b) make improper use of their position as an employee to gain, directly or indirectly, an advantage for themselves or for any other person or to cause detriment to the members of the CCIV.
Note: This subsection is a civil penalty provision (see section 1317E).
(2) A person must not intentionally or recklessly contravene, or be involved in a contravention of, subsection (1).
Duties under this section prevail in case of conflict
(3) If there is a conflict between a duty owed by an employee of the corporate director of a retail CCIV under this section and a duty owed by the employee under Part 2D.1, the duty owed under this section prevails.
Interaction with other laws etc.
(4) Subsection (1):
(a) has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and
(b) does not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph (a).
(1) A retail CCIV must have a compliance plan.
Note: A copy of the compliance plan must be lodged with ASIC with the application to register a CCIV that is to be a retail CCIV: see subsection 1222A(6).
(2) A wholesale CCIV is not required to have a compliance plan.
(3) A CCIV must lodge a copy of its compliance plan with ASIC within 14 days of becoming a retail CCIV. The copy must be signed by all the directors of the corporate director.
Note: Section 1222J defines
retail CCIV .(4) An offence based on subsection (3) is an offence of strict liability.
The compliance plan of a retail CCIV must set out adequate measures that the corporate director is to apply in fulfilling its responsibilities in relation to the CCIV to ensure compliance with this Act and the CCIV’s constitution.
(1) The compliance plan of a retail CCIV may be expressed to incorporate specified provisions of a compliance plan of another CCIV, provided both CCIVs have the same corporate director. The provisions may be incorporated as in force at a specified time, or as in force from time to time.
(2) The specified provisions, as in force at the specified time, or as in force from time to time (as the case requires) are taken to be included in the plan.
(1) ASIC may give the corporate director of a retail CCIV a direction, in writing, to give ASIC information about the arrangements contained in the compliance plan. The direction must specify the period (which must be at least 14 days after the direction is given) within which the corporate director must give the information.
(2) The corporate director must comply with the direction within the period specified.
(3) An offence based on subsection (2) is an offence of strict liability.
Corporate director’s powers
(1) The corporate director of a CCIV may modify the CCIV’s compliance plan or repeal it and replace it with a new compliance plan.
ASIC may require modifications
(2) ASIC may give the corporate director of a retail CCIV a direction, in writing, to modify the CCIV’s compliance plan, as set out in the direction, to ensure that the plan is consistent with section 1226A. The direction must specify the period (which must be at least 14 days after the direction is given) within which the corporate director must make the modification.
(3) The corporate director must comply with the direction within the period specified.
Lodgement of modification or new plan
(4) The corporate director must lodge with ASIC a copy of a modification of the CCIV’s compliance plan or of a new compliance plan within 14 days after the modification is made or the old plan is repealed. The copy must be signed by all the directors of the corporate director.
(5) An offence based on subsection (3) or (4) is an offence of strict liability.
(1) ASIC may give the corporate director of a retail CCIV a direction, in writing, to lodge a consolidated copy of the CCIV’s compliance plan with ASIC. The direction must specify the period (which must be at least 14 days after the direction is given) within which the corporate director must lodge the consolidation.
(2) The consolidation must set out:
(a) the plan as modified to the time of lodgement; and
(b) if required by ASIC’s direction—the full text of provisions taken to be included in the plan by subsection 1226B(2).
(3) The corporate director must comply with the direction within the period specified in the notice.
(4) An offence based on subsection (3) is an offence of strict liability.
(1) The corporate director of a retail CCIV must ensure that at all times a registered company auditor, an audit firm or an authorised audit company is engaged to audit compliance with the CCIV’s compliance plan in accordance with this section. This auditor, firm or company is referred to as the
auditor of the compliance plan .
Repeal the paragraph, substitute:
(b) sets out:
(i) the sub‑fund’s ARFN (within the meaning of the
Corporations Act 2001 ); and(ii) the name of the *corporate director of the CCIV; and
(iii) the number of the corporate director’s Australian financial services licence (within the meaning of that Act).
Repeal the subsection, substitute:
(2) The *Registrar must take reasonable steps to ensure that a statement recorded under subsection (1) is accurate. For this purpose, the Registrar may correct or update the record of the statement.
Insert:
corporate director of a *CCIV has the same meaning as in theCorporations Act 2001 .
The amendments made by this Part apply to a CCIV sub‑fund trust that has an ABN, even if the trust began to have an ABN before the commencement of this Part.
20
Validation of acts or things done during interim period
Object (1) The object of this item is to treat all situations during the interim period in every respect as if:
(a) the amendments made by Division 1 of Part 2 of Schedule 1 to the
Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024 had not been made at the start of 31 December 2024; and(b) the amendments made by the postponed items had been made at the start of 1 January 2025 and had effect during the interim period.
Validation of acts and things done in interim period (2) An act or thing that was done at any time during the interim period is as valid, and is taken always to have been as valid, as it would have been if:
(a) the amendments made by Division 1 of Part 2 of Schedule 1 to the
Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024 had not been made at the start of 31 December 2024; and(b) in particular, the amendments made by the postponed items had been made at the start of 1 January 2025 and had effect during the interim period.
Acts and things to which this item applies (3) This item applies to an act or thing, regardless of the basis on which, or capacity in which, the act or thing was done or purported to be done.
Definitions
(4) In this item:
interim period means the period:
(a) starting at the start of 1 January 2025; and
(b) ending at the end of the day before the day on which Division 2 of Part 2 of Schedule 1 to the
Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024 commences.
postponed item means item 15, 16, 17, 18 or 19 of this Schedule (which would commence on 1 January 2025 if Division 1 of Part 2 of Schedule 1 to theTreasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024 were disregarded).
Omit “2020‑21 or 2021‑22 income year”, substitute “2020‑21, 2021‑22 or 2022‑23 income year”.
Omit “or 2020‑21”, substitute “, 2020‑21 or 2021‑2022”.
3
Section 36‑25 (table dealing with tax losses of corporate tax entities) Omit “
or 2021‑22 ”, substitute “, 2021‑22 or 2022‑23 ”.
Omit “
or 2021‑22 ”, substitute “, 2021‑22 or 2022‑23 ”.
Omit “2019‑20, 2020‑21 or 2021‑22 against the income tax liability it had for 2018‑19, 2019‑20 or 2020‑21”, substitute “2019‑20, 2020‑21, 2021‑22 or 2022‑23 against the income tax liability it had for 2018‑19, 2019‑20, 2020‑21 or 2021‑22”.
Omit “refundable tax offset for 2020‑21 or 2021‑22”, substitute “refundable tax offset for 2020‑21, 2021‑22 or 2022‑23”.
Add:
or (iii) the 2022‑23 income year;
Add:
(iv) if the current year is the 2022‑23 income year—the 2022‑23 income year or the 2021‑22 income year;
Add:
(iv) if the current year is the 2022‑23 income year and the 2022‑23 income year was a loss year—the 2021‑22 income year or the 2020‑21 income year;
(v) if the current year is the 2022‑23 income year and the 2021‑22 income year was a loss year—the 2020‑21 income year;
Insert:
Note 2A: The entity can be entitled to only one loss carry back tax offset for 2022‑23. However, that offset has 4 components: one relating to 2018‑19, one relating to 2019‑20, one relating to 2020‑21 and one relating to 2021‑22: see section 160‑10.
Add:
and (iv) if the current year is the 2022‑23 income year—the 2021‑22 income year and the 2020‑21 income year;
Omit “or 3”, substitute “, 3 or 4”.
13
Subsection 160‑10(3) (at the end of the heading) Add “
—entitlement to loss carry back tax offset for 2021‑22 income year ”.
Insert:
Income tax liability for the 2018‑19, 2019‑20 or 2020‑21 income year already utilised —entitlement to loss carry back tax offset for 2022‑23 income year
(4A) Subsection (4B) applies in relation to applying paragraph (2)(b) to work out the entity’s *loss carry back tax offset component for the 2018‑19, 2019‑20 or 2020‑21 income year (the
gain year ) as part of working out the entity’s entitlement to a *loss carry back tax offset for the 2022‑23 income year.(4B) Disregard so much of the entity’s *income tax liability for the gain year as has previously been included (as part of working out the entity’s entitlement to a *loss carry back tax offset for the 2020‑21 or 2021‑22 income year) in a *loss carry back tax offset component.
Add:
; and (d) if the current year is the 2022‑23 income year:
(i) where the entity carries back an amount to the 2021‑22 income year—more than half of the 2021‑22 income year; and
(ii) where the entity carries back an amount to the 2020‑21 income year—more than half of the 2020‑21 income year.
Omit “2020‑21 or 2021‑22 income year”, substitute “2020‑21, 2021‑22 or 2022‑23 income year”.
Insert:
(aa) if the current year is the 2022‑23 income year and the 2022‑23 income year was a loss year:
(i) how much (expressed as a specified amount) of the entity’s tax loss (if any) for the 2022‑23 income year is to be carried back to the 2021‑22 income year; and
(ii) how much (expressed as a specified amount) of the entity’s tax loss (if any) for the 2022‑23 income year is to be carried back to the 2020‑21 income year; and
(iii) how much (expressed as a specified amount) of the entity’s tax loss (if any) for the 2022‑23 income year is to be carried back to the 2019‑20 income year; and
(iv) how much (expressed as a specified amount) of the entity’s tax loss (if any) for the 2022‑23 income year is to be carried back to the 2018‑19 income year;
(ab) if the current year is the 2022‑23 income year and the 2021‑22 income year was a loss year:
(i) how much (expressed as a specified amount) of the entity’s tax loss (if any) for the 2021‑22 income year is to be carried back to the 2020‑21 income year; and
(ii) how much (expressed as a specified amount) of the entity’s tax loss (if any) for the 2021‑22 income year is to be carried back to the 2019‑20 income year; and
(iii) how much (expressed as a specified amount) of the entity’s tax loss (if any) for the 2021‑22 income year is to be carried back to the 2018‑19 income year;
Add:
(3) If the *current year is the 2022‑23 income year:
(a) the entity cannot *carry back an amount of a *tax loss to the 2018‑19 income year unless the entity was a *corporate tax entity throughout:
(i) the 2018‑19 income year (disregarding any period when the entity was not in existence); and
(ii) the 2019‑20 income year; and
(iii) the 2020‑21 income year; and
(iv) the 2021‑22 income year; and
(b) the entity cannot carry back an amount of a tax loss to the 2019‑20 income year unless the entity was a corporate tax entity throughout:
(i) the 2019‑20 income year (disregarding any period when the entity was not in existence); and
(ii) the 2020‑21 income year; and
(iii) the 2021‑22 income year; and
(c) the entity cannot carry back an amount of a tax loss to the 2020‑21 income year unless the entity was a corporate tax entity throughout:
(i) the 2020‑21 income year (disregarding any period when the entity was not in existence); and
(ii) the 2021‑22 income year; and
(d) the entity cannot carry back an amount of a tax loss to the 2021‑22 income year unless the entity was a corporate tax entity throughout the 2021‑22 income year (disregarding any period when the entity was not in existence).
Note: The entity must be a corporate tax entity throughout 2022‑23: see paragraph 160‑5(b).
Omit “or 2021‑22”, substitute “, 2021‑22 or 2022‑23”.
Omit “or 2021‑22”, substitute “, 2021‑22 or 2022‑23”.
Omit “or 2021‑22”, substitute “, 2021‑22 or 2022‑23”.
22
Subsection 995‑1(1) (note to the definition of carry back ) Omit “or 2021‑22”, substitute “, 2021‑22 or 2022‑23”.
23
Section 45‑340 in Schedule 1 (paragraph (db) of step 1 of the method statement) Omit “or 2021‑22”, substitute “, 2021‑22 or 2022‑23”.
Omit “or 2021‑22”, substitute “, 2021‑22 or 2022‑23”.
1
In the appropriate position in subsection 30‑25(2) (table) Insert:
2.2.53 | SU Australia Ministries Limited | the gift must be made on or after 1 July 2021 and before 1 July 2023 |
2
In the appropriate position in subsection 30‑50(2) (table) Insert:
5.2.36 | Virtual War Memorial Limited | the gift must be made on or after 1 July 2021 and before 1 July 2026 |
Repeal the item.
4
Subsection 30‑80(2) (cell at table item 9.2.27, column headed “Special conditions”) Repeal the cell, substitute:
|
5
Section 30‑105 (cell at table item 13.2.23, column headed “Special conditions”) Repeal the cell, substitute:
|
6
In the appropriate position in section 30‑105 (table) Insert:
13.2.29 | Australian Associated Press Ltd | the gift must be made on or after 1 July 2021 and before 1 July 2026 |
7
In the appropriate position in section 30‑105 (table) Insert:
13.2.30 | The Greek Orthodox Community Of New South Wales Ltd | the gift must be made on or after 1 July 2019 |
Insert:
17AAAA | Australian Associated Press Ltd | item 13.2.29 |
Repeal the item.
Insert:
52C | Greek Orthodox Community Of New South Wales Ltd | item 13.2.30 |
Insert:
112AFA | SU Australia Ministries Limited | item 2.2.53 |
Insert:
121C | Virtual War Memorial Limited | item 5.2.36 |
Australian Prudential Regulation Authority Supervisory Levies Determination 2021
1
Section 9‑2 (cell at table item 3, column headed “Minimum restricted levy amount ($)”) Omit “7,50”, substitute “7,500”.
Add:
The amendment of section 9‑2 made by Part 1 of Schedule 8 to the
Corporate Collective Investment Vehicle Framework and Other Measures Act 2022 applies for the financial year beginning on 1 July 2021.
Omit “regulators”, substitute “operators”.
Add:
; (e) an obligation of a representative of the licensee under the financial services law, so far as it relates to provisions of this Act or the ASIC Act referred to in paragraphs (a), (b), (ba) and (c) of the definition of
financial services law in section 761A.
Add:
(6) Regulations for the purposes of paragraph (4)(b) may prescribe a civil penalty provision to the extent that it relates to the following:
(a) contraventions of specified provisions;
(b) specified matters.
Repeal the subsection (not including the note), substitute:
(3) An authorised representative (an
authoriser ) of a financial services licensee may, in that capacity, give an individual a written notice authorising that individual, for the purposes of this Chapter, to provide a specified financial service or financial services on behalf of the licensee, but only if the licensee consents in writing given to the authoriser.
Insert:
(3A) An individual who is authorised as mentioned in subsection (3) cannot, in that capacity, authorise another person under subsection (3).
Omit “a body corporate”, substitute “an authoriser”.
Omit “the body corporate”, substitute “the authoriser”.
Omit “the body corporate”, substitute “the authoriser”.
Repeal the subsection, substitute:
(1AA) Subsection (1) does not apply to an authorisation of a representative by an authorised representative (the
authoriser ) if:
(a) the authorisation is given as mentioned in subsection 916B(3); and
(b) the relevant consent under subsection 916B(3) was given in respect of a specified class of individuals of which the representative is a member; and
(c) the representative is an employee of the authoriser; and
(d) the only financial services that the representative is authorised to provide are one or more of the following:
(i) general advice that relates to financial products covered by regulations made for the purposes of this paragraph;
(ii) dealing in financial products covered by regulations made for the purposes of this paragraph;
(iii) personal advice about a basic deposit product or about a facility for making non‑cash payments that relates to a basic deposit product; and
(e) the authoriser provides information about the representative and the representative’s authorisation when requested.
Note 1: Regulations made for the purposes of paragraph (d) may be expressed to cover all financial products, or only 1 or more specified kinds of financial products.
Note 2: A defendant bears an evidential burden in relation to the matters in subsection (1AA). See subsection 13.3(3) of the
Criminal Code .
Omit “5 days”, substitute “5 business days”.
Omit “5th day”, substitute “fifth business day”.
Insert:
In this Part:
amending Part means Part 1 of Schedule 8 to theCorporate Collective Investment Vehicle Framework and Other Measures Act 2022 .
commencement day means the day the amending Part commences.
(1) Paragraph 912D(3)(e), as inserted by the amending Part, applies in relation to a reportable situation that arises on or after 1 October 2021 and relates to a breach of an obligation referred to in that paragraph.
(2) If:
(a) due to subsection (1), a financial services licensee is required, under a provision of Division 3 of Part 7.6, to do a thing in relation to a reportable situation that arose before the commencement day; and
(b) that thing must be done within a period of a specified number of days after the licensee first knows about, or is reckless with respect to, particular matters; and
(c) that period began before the commencement day;
then that requirement is taken to be a requirement to do the thing within the specified number of days after the commencement day.
Subsection 912D(6), as inserted by the amending Part, applies in relation to a reportable situation that arises on or after the commencement day.
Regulation 7.6.04A of the
Corporations Regulations 2001 , as in force immediately before the commencement day, has effect, on and after the commencement day, as if the regulation had been made for the purposes of paragraph 916F(1AA)(1)(d) as inserted by the amending Part.
Omit “subsection (1)”, substitute “subsection (2)”.
Omit “paragraph (1)(c)”, substitute “subparagraph (1)(b)(i)”.
Add:
; or (d) a COVID‑19 pandemic event 408 visa (as defined by subclause 9204(1) of Schedule 13 to the
Migration Regulations 1994 ).
The amendment of subsection 3A(1) of the
Income Tax Rates Act 1986 made by this Part applies to an individual in relation to a particular time if:
(a) the time is in an income year (a
pre‑commencement income year ) that begins on or after 1 July 2019 but before the first 1 July to occur after the day this Part commences and the individual is a non‑resident taxpayer in relation to that income year; or(b) the time:
(i) is in a pre‑commencement income year in relation to which there are one or more part‑year residency periods in relation to the individual; and
(ii) is not in one of those part‑year residency periods; or
(c) the time is in an income year that begins on or after the first 1 July to occur after the day this Part commences.
Repeal the paragraph, substitute:
(c) the obligation under paragraph 47(1)(d), so far as it relates to Commonwealth legislation that is:
(i) covered by paragraph (d) of the definition of
credit legislation in subsection 5(1); and(ii) specified in regulations made for the purposes of this subparagraph.
Add:
; (d) an obligation of a representative of the licensee under this Act, the Transitional Act, Division 2 of Part 2 of the ASIC Act or regulations made for the purpose of that Division.
Insert:
(5A) Regulations for the purposes of paragraph (4)(b) may prescribe a civil penalty provision to the extent that it relates to the following:
(a) contraventions of specified provisions;
(b) specified matters.
Insert:
Schedule 20—Application provisions relating to Schedule 8 to the Corporate Collective Investment Vehicle Framework and Other Measures Act 202 2
In this Schedule:
amending Part means Part 1 of Schedule 8 to theCorporate Collective Investment Vehicle Framework and Other Measures Act 2022 .
commencement day means the day the amending Part commences.
2
Application of paragraph 50A(3)(d) of the National Credit Act (1) Paragraph 50A(3)(d) of the National Credit Act, as inserted by the amending Part, applies in relation to a reportable situation that arises on or after 1 October 2021 and relates to a breach of an obligation referred to in that paragraph.
(2) If:
(a) due to subitem (1), a licensee is required, under a provision of Division 5 of Part 2‑2 of the National Credit Act, to do a thing in relation to a reportable situation that arose before the commencement day; and
(b) that thing must be done within a period of a specified number of days after the licensee first knows about, or is reckless with respect to, particular matters; and
(c) that period began before the commencement day;
then, that requirement is taken to be a requirement to do the thing within the specified number of days after the commencement day.
3
Application of paragraph 50A(3)(c) and subsection 50A(5) of the National Credit Act Paragraph 50A(3)(c) and subsection 50A(5) of the National Credit Act, as inserted by the amending Part, apply in relation to a reportable situation that arises on or after the commencement day.
Omit “paragraph 7(1)(b)”, substitute “subsection 7(1A)”.
Repeal the subsection, substitute:
(1) A constitutionally covered entity becomes a
reporting entity at the start of an income year for the entity if the entity is covered by subsection (2).
(1A) If a constitutionally covered entity gives the Regulator notice in writing that the entity elects to become a reporting entity, the entity becomes a
reporting entity when the notice is given.Note: A reporting entity that is a reporting entity only because of an election under subsection (1A) is a
volunteering entity : see section 5.
Omit “Each”, substitute “(1) Subject to subsections (2) and (3), each”.
Add:
(2) If a volunteering entity becomes a reporting entity within the first 6 months of an income year for the entity, the first 6 months of that income year is not a reporting period for the entity.
(3) If a volunteering entity becomes a reporting entity after the first 6 months of an income year for the entity, no period in that income year is a reporting period for the entity.
The amendments of sections 5, 7 and 8 of the
Payment Times Reporting Act 2020 made by this Part apply in relation to an election to become a reporting entity given by an entity on or after the commencement of this Part.
Repeal the paragraph, substitute:
(h) state the proportion, determined by total value, of all invoices paid by the entity during the reporting period that were small business invoices; and
Repeal the subsection, substitute:
(2) The rules may prescribe the method for working out any of the matters mentioned in paragraph (1)(e), (f), (g) or (h), including in relation to the issue or payment of small business invoices.
(1) Paragraph 14(1)(h) of the
Payment Times Reporting Act 2020 , as inserted by this Part, applies in relation to a payment times report given on or after the commencement of this Part, including a payment times report for a reporting period that began before that commencement.(2) Subsection 14(2) of the
Payment Times Reporting Act 2020 , as inserted by this Part, applies in relation to a payment times report given on or after the commencement of this Part, including a payment times report for a reporting period that began before that commencement.
(3) Rules that were:
(a) made for the purposes of subsection 14(2) of the
Payment Times Reporting Act 2020 ; and(b) in force immediately before the commencement of this Part;
have effect, on and after that commencement as if they had been made for the purposes of subsection 14(2) of the
Payment Times Reporting Act 2020 as inserted by this Part.
Repeal the paragraphs.
Omit “the matters set out in the document to the same extent as the original document would have been evidence of those matters”, substitute “a matter to the same extent as the original document would have been evidence of the matter”.
Repeal the paragraph, substitute:
(b) that you *derive at a time when you are a foreign resident and:
(i) you hold a Temporary Work (International Relations) Visa (subclass 403); or
(ii) you hold a Temporary Activity Visa (subclass 408) having previously held a Temporary Work (International Relations) Visa (subclass 403).
The amendment of paragraph 840‑905(b) of the
Income Tax Assessment Act 1997 made by this Part applies in relation to income derived on or after 1 July 2019.
Repeal the paragraph, substitute:
(b) at a time when the employee is a foreign resident and:
(i) the employee holds a Temporary Work (International Relations) Visa (subclass 403); or
(ii) the employee holds a Temporary Activity Visa (subclass 408) having previously held a Temporary Work (International Relations) Visa (subclass 403).
The amendment of paragraph 12‑319A(b) in Schedule 1 to the
Taxation Administration Act 1953 made by this Part applies in relation to salary, wages, commission, bonuses or allowances paid on or after 1 July 2019.
Repeal the instrument.
Omit “23”, substitute “1”.
Insert:
(2A) The Commissioner may disclose the tax file number of a person to a registrar specified in subsection 355‑67(2) in Schedule 1 to the
Taxation Administration Act 1953 if:
(a) the Commissioner is appointed as that registrar; and
(b) no other person or body is appointed as that registrar; and
(c) the disclosure is made through use of a computer application or system that is used for the performance of functions, or the exercise of powers, of both the Commissioner and that registrar; and
(d) use of the application or system by that registrar is on the condition that tax file numbers disclosed through use of the application or system are only to be recorded, used, divulged, disclosed or communicated to the extent reasonably necessary for the application or system to be used for the performance of that registrar’s functions, or the exercise of that registrar’s powers.
Omit “or (2)”, substitute “, (2) or (2A)”.
Insert:
(ba) in connection with the first‑mentioned person exercising powers or performing functions of a registrar specified in subsection 355‑67(2) in Schedule 1; or
After “(b)”, insert “, (ba)”.
The amendments of section 204 of the
Income Tax Assessment Act 1936 and section 8WB of theTaxation Administration Act 1953 made by this Part apply, from the commencement of this Part, in relation to a tax file number issued before, on or after that commencement.
Insert:
Retirement income covenants
(8A) The covenants referred to in subsection (1) include the following covenants by each trustee of the entity:
(a) to formulate, review regularly and give effect to a retirement income strategy that meets the requirements in section 52AA;
(b) to take reasonable steps to gather the information necessary to inform the formulation and review of the strategy;
(c) to record the strategy in writing;
(d) to record in the document in which the strategy is recorded:
(i) each determination made by the trustee for the purposes of the strategy, and the reasons for the determination; and
(ii) each other decision made by the trustee in formulating
, reviewing or giving effect to the strategy that the trustee considers to be significant, and the reasons for the decision; and(iii) the steps taken to gather the information that informed the formulation of the strategy, and the reasons for taking those steps;
(e) to make a summary of the strategy publicly available on the website of the entity.
(8B) Subsection (8A) does not apply if the entity is a regulated superannuation fund, and the only benefits it provides to, or in respect of, its members are any of the following:
(a) death benefit;
(b) permanent incapacity benefit;
(c) a benefit provided if, and only if, a member is suffering temporary incapacity (within the meaning of the superannuation data and payment standards).
Insert:
(1) A retirement income strategy formulated for an entity by a trustee for the purposes of subsection 52(8A) must meet the requirements in this section.
(2) The strategy must be for the benefit of beneficiaries of the entity who are retired or who are approaching retirement and must address how the trustee will assist those beneficiaries to achieve and balance the following objectives:
(a) to maximise expected retirement income over the period of retirement;
(b) to manage expected risks to the sustainability and stability of retirement income over the period of retirement of the following kinds:
(i) longevity risks;
(ii) investment risks;
(iii) inflation risks;
(iv) any other risks to the sustainability and stability of the retirement income;
(c) to have flexible access to expected funds over the period of retirement.
Determining the class of beneficiaries who are retired or who are approaching retirement
(3) The trustee must determine the class of beneficiaries of the entity who are retired or who are approaching retirement for the purposes of the strategy. The class may be determined excluding beneficiaries who:
(a) only hold a defined benefit interest in the entity; and
(b) are not eligible to commute that benefit (whether during the period of retirement or otherwise).
(4) The strategy may divide the class of beneficiaries into sub‑classes and make different provision in respect of those sub‑classes.
Determining meaning of retirement income and period of retirement
(5) The trustee must determine the meaning of retirement income for the purposes of the strategy, which:
(a) must include income, net of tax, received during the period of retirement of the following kinds:
(i) income paid from, or supported by, a superannuation interest in the entity;
(ii) income from an age pension under the
Social Security Act 1991 ; and(b) may include income from any other source if the trustee determines that it is appropriate to include income from that source.
(6) The trustee must determine the meaning of period of retirement for the purposes of the strategy.
(1) The amendments of the
Superannuation Industry (Supervision) Act 1993 made by this Schedule apply, on and after the commencement of this Schedule, in relation to a registrable superannuation entity (including a registrable superannuation entity in existence before that commencement).(2) Despite subitem (1), a trustee of the entity is not required to have formulated a retirement income strategy or published a summary of a retirement income strategy before 1 July 2022.
1
Section 83A‑100 (paragraph beginning “If there is a real risk”) Omit “If you cease employment earlier, or if 15 years pass”, substitute “If 15 years pass”.
Omit “earliest of the times mentioned in subsections (4) to (6)”, substitute “earlier of the times mentioned in subsections (4) and (6)”.
Repeal the subsection.
Omit “3rd”, substitute “2nd”.
Omit “subsections (4) to (7)”, substitute “subsections (4), (6) and (7)”.
Repeal the subsection.
Omit “3rd”, substitute “2nd”.
Omit “4th”, substitute “3rd”.
The amendments made by this Schedule apply in relation to each ESS interest for which the ESS deferred taxing point occurs on or after:
(a) unless paragraph (b) applies—the first 1 July to occur after the day on which this Act receives the Royal Assent; or
(b) if this Act receives the Royal Assent on a 1 July—that 1 July.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA = | Sch = Schedule(s) |
LIA = | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Corporate Collective Investment Vehicle Framework and Other Measures Act 2022 | 8, 2022 | 22 Feb 2022 | Sch 1–4, Sch 5 (items 1–14) and Sch 8 (item 38): 1 July 2022 (s 2(1) items 2–4, 11) Sch 5 (items 15–20): Sch 6, 7, Sch 8 (items 33–37) and Sch 10: 1 Apr 2022 (s 2(1) items 6–8, 10, 14) Sch 8 (items 1–32) and Sch 9: 23 Feb 2022 (s 2(1) items 9, 13) Sch 8 (items 39–43): 4 April 2021 (s 2(1) item 12) Remainder: 22 Feb 2022 (s 2(1) item 1) | |
Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024 | 136, 2024 | 10 Dec 2024 | Sch 1 (item 5): Sch 1 (item 6): 11 Dec 2024 (s 2(1) item 4) | — |
s 2............................................. | am |
item 20....................................... | ad No 136, 2024 |
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