Corporate Law Reform Act 1992 (Cth)
PART 1—PRELIMINARY
Section | |
| Short title |
| Commencement |
| Meaning of “Corporations Law” and “Principal Act” |
PART 2—DUTIES OF OFFICERS OF CORPORATIONS | |
| Dictionary |
| Insertion of new section: |
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| Being or becoming subject to a section 229 prohibition, a section 230 or 599 order, a section 600 notice or a civil penalty disqualification |
| Effect of such a prohibition, order, notice or disqualification |
| Vacation of office of director |
| Certain persons not to manage corporations |
| Court may order person not to manage corporation |
| Duty and liability of officer of corporation |
| Register of disqualified company directors and other officers |
| Public companies |
| Contravention of Part |
| References to civil penalty disqualification inserted in certain provisions |
| Penalty notices |
| Insertion of new Part: |
TABLE OF PROVISIONS—
Section | ||
PART 9.4B—CIVIL AND CRIMINAL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS | ||
1317DA. | Civil penalty provisions | |
1317DB. | Person involved in contravening a provision taken to have contravened the provision | |
1317DC. | Contravention committed partly in, and partly out of, the jurisdiction | |
1317DD. | Reciprocity in relation to contraventions | |
1317EA. | Court may make civil penalty orders | |
1317EB. | Who may apply for civil penalty order | |
1317EC. | Time limit for application | |
1317ED. | Application for civil penalty order is a civil proceeding | |
1317EF. | Person must comply with order not to manage corporation | |
1317EG. | Enforcement of order to pay pecuniary penalty | |
1317EH. | Commission may require a person to give assistance in connection with application for civil penalty order | |
1317FA. | When contravention of civil penalty provision is an offence | |
1317FB. | Application for civil penalty order precludes later criminal proceedings | |
1317GA. | When Division applies | |
1317GB. | Effect during criminal proceedings | |
1317GC. | Final outcome precluding application for civil penalty order | |
1317GD. | Final outcome not precluding application for civil penalty order | |
1317GE. | After unsuccessful committal proceeding, court may preclude application for civil penalty order | |
1317GF. | Application for civil penalty order based on alternative verdict at jury trial | |
1317GG. | Application for civil penalty order based on alternative finding by court of summary jurisdiction | |
1317GH. | Application for civil penalty order based on alternative finding by appeal court | |
1317GJ. | After setting aside declaration, court may preclude application for civil penalty order | |
1317GK. | On unsuccessful appeal against declaration, Court may make civil penalty orders | |
1317GL. | Appeals under this Division | |
1317HA. | On application for civil penalty order, Court may order compensation | |
1317HB. | Criminal court may order compensation | |
1317HC. | Enforcement of order under section 1317HA or 1317HB | |
1317HD. | Recovery of profits, and compensation for loss, resulting from contravention | |
1317HE. | Effect of sections 1317HA, 1317HB and 1317HD | |
1317HF. | Certificates evidencing contravention | |
1317JA. | Relief from liability for contravention of civil penalty provision | |
1317JB. | Effect of contravening civil penalty provisions of Corporations Law of | |
1317JC. | Part does not limit power to award punitive damages | |
TABLE OF PROVISIONS—
Section | |||
| Schedule 3 | ||
| Recovery of expenses of investigation | ||
| Debts provable in bankruptcy | ||
PART 3—FINANCIAL BENEFITS TO RELATED PARTIES OF PUBLIC COMPANIES | |||
| How to read references to provisions of this Law | ||
| Dictionary | ||
| Effect of certain contraventions of this Law | ||
| Directors to disclose certain interests | ||
| Insertion of new sections: | ||
| Voting by interested director of public company | ||
| Commission may exempt directors from section 232A in appropriate cases | ||
| Loans to directors | ||
| Insertion of new Part: | ||
PART 3.2A—FINANCIAL BENEFITS TO RELATED PARTIES OF PUBLIC COMPANIES | |||
| Object | ||
| Outline | ||
| Entities | ||
| Parent entities, child entities and sibling entities | ||
| Control | ||
| Related party of a public company | ||
| Giving a financial benefit | ||
| Prohibited financial benefits to related parties of public companies | ||
| Financial benefit under contract made before section 243H begins to apply | ||
| Remunerating officers | ||
| Advances, up to prescribed amount, to director or director’s spouse | ||
| Financial benefit given to or by closely-held subsidiary | ||
| Financial benefit on arm’s length terms | ||
| Financial benefits to members as such | ||
| Financial benefit under court order | ||
| Financial benefit permitted by resolution of members | ||
| Financial benefit under contract permitted by resolution of members | ||
| Resolution may specify matters by class or kind | ||
| Effect of resolution | ||
TABLE OF PROVISIONS—
Section | ||
| Company must lodge material that will be put to members | |
| Requirements for explanatory statement to members | |
| Commission may comment on proposed resolution | |
| Requirements for notice of meeting | |
| Other material put to members | |
| Proposed resolution cannot be varied | |
| Voting on the resolution | |
| Notice of resolution to be lodged | |
| Declaration by Court of substantial compliance | |
| Consequences of giving financial benefit when not permitted | |
| Voting by or on behalf of related party interested in proposed | |
resolution under Division 5 | ||
| Contraventions by an entity that is not a legal person | |
| Retaining records made under section 243ZB | |
| Effect of Part | |
| Schedule 3 | |
PART 4—EXTERNAL ADMINISTRATION OF COMPANIES AND PART 5.7 BODIES | ||
| Dictionary | |
| Affairs of a body corporate | |
| Insertion of new sections: | |
| Business affairs of a body corporate | |
| Business affairs of a natural person. | |
| Business affairs of a partnership | |
| Business affairs of a trust | |
| Insertion of new sections: | |
| Entities | |
| Entities connected with a corporation | |
| Officers of bodies corporate and other entities | |
| Insertion of new section: | |
| Solvency and insolvency | |
| Interpretation | |
| Duty and liability of officer of corporation | |
| Substitution of Part heading | |
| Application of Part | |
| Insertion of new section: | |
| Court may declare whether controller is validly acting | |
| Insertion of new section: | |
| Liability of controller under pre-existing agreement about property used by corporation | |
| Insertion of new sections: | |
| Controller’s duty of care in exercising power of sale | |
| Court may authorise managing controller to dispose of property despite prior charge | |
| Receiver’s power to carry on corporation’s business during winding up | |
| Controller’s duties in relation to bank accounts and accounting records | |
| Insertion of new section: | |
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| Supervision of controller | |
TABLE OF PROVISIONS—
Section | ||
| Substitution of section: | |
| Controller may apply to Court | |
| Court’s power to fix receiver’s remuneration | |
| Repeal of section 426 and substitution of new section: | |
| Controller has qualified privilege in certain cases | |
| Notification of matters relating to controller | |
| Statement that receiver appointed or other controller acting | |
| Officers to report to controller about corporation’s affairs | |
| Controller may require reports | |
| Controller may inspect books | |
| Lodging controller’s accounts | |
| Enforcing controller’s duty to make returns | |
| Insertion of new sections: | |
| Court may remove controller for misconduct | |
| Court may remove redundant controller | |
| Effect of sections 434A and 434B | |
| Repeal of Part 5.3 and substitution of new Part: | |
PART 5.3A—ADMINISTRATION OF A COMPANY’S AFFAIRS WITH A VIEW TO EXECUTING A DEED OF COMPANY ARRANGEMENT | ||
| Object of Part | |
| Interpretation | |
| When administration begins and ends | |
| Company may appoint administrator if board thinks it is or will become insolvent | |
| Liquidator may appoint administrator | |
| Chargee may appoint administrator | |
| Company already under administration | |
| Purpose and timing of first meeting of creditors | |
| Functions of committee of creditors | |
| Membership of committee | |
| Role of administrator | |
| Administrator acts as company’s agent | |
| Powers of other officers suspended | |
| Only administrator can deal with company’s property | |
| Order for compensation where officer involved in void transaction | |
| Effect of administration on company’s members | |
| Administrator to investigate affairs and consider possible courses of action | |
| Directors to help administrator | |
| Administrator’s rights to company’s books | |
| Reports by administrator | |
| Administrator to convene meeting and inform creditors | |
| Conduct of meeting | |
| What creditors may decide | |
TABLE OF PROVISIONS—
Section | ||
| Winding up company | |
| Charge unenforceable | |
| Owner or lessor cannot recover property used by company | |
| Stay of proceedings | |
| Administrator not liable in damages for refusing consent | |
| Suspension of enforcement process | |
| Duties of court officer in relation to property of company | |
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| Administration not to trigger liability of director or relative under guarantee of company’s liability | |
| Where chargee acts before or during decision period | |
| Where enforcement of charge begins before administration | |
| Charge on perishable property | |
| Court may limit powers of chargee, etc. in relation to charged property | |
| Giving a notice under a charge | |
| Where recovery of property begins before administration | |
| Recovering perishable property | |
| Court may limit powers of receiver etc. in relation to property used by company | |
| Giving a notice under an agreement about property | |
| Effect of Division | |
| Additional powers of administrator | |
| Dealing with property subject to a floating charge that has crystallised | |
| When administrator may dispose of encumbered property | |
| Administrator’s powers subject to powers of chargee, receiver etc. | |
| Administrator has qualified privilege | |
| Protection of persons dealing with administrator | |
| General debts | |
| Payments for property used or occupied by, or in the possession of, the company | |
| Administrator not otherwise liable for company’s debts | |
| Right of indemnity | |
| Right of indemnity has priority over other debts | |
| Lien to secure indemnity | |
| Effect of creditors’ resolution | |
| Execution of deed | |
| Creditor etc. not to act inconsistently with deed before its execution | |
| Effect of deed on creditors | |
| Protection of company’s property from persons bound by deed | |
| Court may limit rights of secured creditor or owner or lessor | |
| Effect of deed on company, officers and members | |
| Extent of release of company’s debts | |
TABLE OF PROVISIONS—
continued
Section | ||
| Variation of deed by creditors | |
| Court may cancel variation | |
| When deed terminates | |
| When Court may terminate deed | |
| Creditors may terminate deed and resolve that company be wound up | |
| Meeting of creditors to consider proposed variation or termination of deed | |
| When Court may void or validate deed | |
| Effect of termination or avoidance | |
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TABLE OF PROVISIONS—
Section | ||
PART 5.4—WINDING UP IN INSOLVENCY | ||
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459D. |
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459F. |
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459G. |
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459H. | Determination of application where there is a dispute or offsetting claim | |
459J. |
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459K. |
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459M. |
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459N. |
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459P. |
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459Q. |
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459R. |
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459S. |
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459T. |
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PART 5.4A—WINDING UP BY THE COURT ON OTHER GROUNDS | ||
| Repeal of section 460 | |
| General grounds on which company may be wound up by Court | |
| Standing to apply for winding up | |
| Repeal of section 463 | |
| Repeal of section 465 and substitution of headings and new section: | |
PART 5.4B—WINDING UP IN INSOLVENCY OR BY THE COURT | ||
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| Applicant to be given notice of grounds for opposing application | |
| Court’s powers on hearing application | |
| Insertion of new sections: | |
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| Avoidance of dispositions of property, attachments etc. | |
| Insertion of Division heading | |
| Effect on creditors and contributories | |
| Insertion of new sections: | |
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TABLE OF PROVISIONS—
Section | ||
| Court to appoint official liquidator | |
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| Custody and vesting of company’s property | |
| References to liquidator in certain provisions to include references to provisional liquidator | |
| Powers of liquidator | |
| Application of property; list of contributories | |
| Orders for release or dissolution | |
| Delivery of property to liquidator | |
| Insertion of new sections: | |
| Court may make order to prevent officer or related entity from avoiding liability to company | |
| Warrant to arrest person who is absconding, or who has dealt with property or books, in order to avoid obligations in connection with winding up | |
| Delegation to liquidator of certain powers of Court | |
| Insertion of new section: | |
| When company cannot wind up voluntarily | |
| Repeal of section 492 | |
| Duty of liquidator where company turns out to be insolvent | |
| Powers and duties of liquidator | |
| Arrangement: when binding on creditors | |
| Application of Part | |
| Insertion of new Division: | |
| Winding up ordered by the Court | |
| Voluntary winding up | |
| Section 513C day in relation to an administration under Part 5.3A | |
| Validity of proceedings in earlier winding up | |
| Repeal of section 525 | |
| Insertion of new sections: | |
| Officers to help liquidator | |
| Liquidator’s rights to company’s books | |
| Warrant to search for, and seize, company’s property or books | |
| Books to be kept by liquidator | |
| Disqualification of liquidator | |
| When liquidator has qualified privilege | |
| Books of company | |
| Repeal of section 553 and substitution of headings and sections: | |
| Debts or claims that are provable in winding up | |
| Member cannot prove debt unless contributions paid | |
| Insolvent companies—penalties and fines not generally provable | |
| Insolvent companies—mutual credit and set-off | |
| Debts or claims may be proved formally or informally | |
| Application of Bankruptcy Act to winding up of insolvent company | |
| General rule—compute amount as at relevant date | |
| Insertion of sections and headings: | |
| Determination of value of debts and claims of uncertain value | |
| Discounting of debts payable after relevant date | |
| Conversion into Australian currency of foreign currency debts or claims | |
| Application of Subdivision | |
TABLE OF PROVISIONS—
Section | ||
| Proof of debt by secured creditor | |
| Redemption of security by liquidator | |
| Amendment of valuation | |
| Repayment of excess | |
| Subsequent realisation of security | |
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| Advances for company to make priority payments in respect of employees | |
| Application of proceeds of contracts of insurance | |
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| Application of proceeds of contracts of reinsurance | |
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| Member’s debts to be postponed until other debts and claims satisfied | |
| Interest on debts and claims from relevant date to date of payment | |
| Debt subordination | |
103. | Substitution of heading | |
104. | Undue preference | |
105. | Effect of floating charge | |
106. | Liquidator’s right to recover in respect of certain transactions | |
107. | Insertion of heading | |
108. | Disclaimer by liquidator; application to Court by party to contract | |
109. | Insertion of new sections and heading: | |
| Liquidator must give notice of disclaimer | |
| Application to set aside disclaimer before it takes effect | |
| When disclaimer takes effect | |
| Effect of disclaimer | |
| Application to set aside disclaimer after it has taken effect | |
| Court may dispose of disclaimed property | |
110. | Insertion of new headings and new sections: | |
| Application in this jurisdiction | |
| Enforcement of orders | |
| Insertion of new Part: | |
PART 5.7B—RECOVERING PROPERTY OR COMPENSATION FOR THE BENEFIT OF CREDITORS OF INSOLVENT COMPANY | ||
| Secured debt may become unsecured | |
| Presumptions to be made in recovery proceedings | |
| Unfair preferences | |
| Uncommercial transactions | |
| Insolvent transactions | |
| Unfair loans to a company | |
| Voidable transactions | |
TABLE OF PROVISIONS—
Section | |||
| Court may make orders about voidable transactions | ||
| Transaction not voidable as against certain persons | ||
| Liquidator may recover from related entity benefit resulting from insolvent transaction | ||
| Creditor who gives up benefit of unfair preference may prove for preferred debt | ||
| Floating charge created within 6 months before relation-back day | ||
| Director’s duty to prevent insolvent trading by company | ||
| Defences | ||
| On application for civil penalty order, Court may order compensation | ||
| Criminal court may order compensation | ||
| Enforcement of order under section 588J or 588K | ||
| Recovery of compensation for loss resulting from insolvent trading | ||
| Avoiding double recovery | ||
| Effect of sections 588J, 588K and 588M | ||
| Certificates evidencing contravention | ||
| Creditor may sue for compensation with liquidator’s consent | ||
| Creditor may give liquidator notice of intention to sue for compensation | ||
| When creditor may sue for compensation without liquidator’s consent | ||
| Events preventing creditor from suing | ||
| When holding company liable | ||
| Recovery of compensation for loss resulting from insolvent trading | ||
| Defences | ||
| Application of amount paid as compensation | ||
| Court may make order imposing liability | ||
112. | Interpretation and application | ||
113. | Offences by officers of certain companies | ||
114. | Incurring of certain debts; fraudulent conduct | ||
115. | Inducement to be appointed liquidator etc. of company | ||
116. | Insertion of heading and new sections: | ||
| Mandatory examination | ||
| Discretionary examination | ||
| Affidavit in support of application under section 596B | ||
| Content of summons | ||
| Notice of examination | ||
| Court may give directions about examination | ||
117. | Conduct of examination | ||
118. | Insertion of new sections and heading: | ||
| When Court is to require affidavit about corporation’s examinable affairs | ||
| Costs of unnecessary examination or affidavit | ||
TABLE OF PROVISIONS—
Section | ||
| Order against person concerned with corporation | |
| Insertion of new Division and heading: | |
| Powers of Court where outcome of voting at creditors’ meeting determined by related entity | |
| Review by Court of resolution of creditors passed on casting vote of chairperson of meeting | |
| Court’s powers where proposed resolution of creditors lost on casting vote of chairperson of meeting | |
| Interim order on application under section 600A, 600B or 600C | |
| Order under section 600A or 600B does not affect act already done pursuant to resolution | |
| Limitation on right of suppliers of essential services to insist on payment as condition of supply | |
| Insertion of new section: | |
| Rights of trustee of estate of bankrupt shareholder | |
| Schedule 3 | |
| Consequential amendments of the Corporations Law | |
| Interpretation | |
| Schedule 2 | |
PART 5—IMPLEMENTING THE CLEARING HOUSE SUBREGISTER SYSTEM | ||
| Dictionary | |
| Application not to be granted unless applications also made under corresponding laws | |
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PART 7.2A—THE SECURITIES CLEARING HOUSE | ||
| Interpretation | |
| Approval of securities clearing house | |
| Commission to be notified of amendments of business rules | |
| Securities clearing house to assist Commission | |
| Securities clearing house to notify Commission of disciplinary action | |
| Issuers of quoted securities and quoted rights to comply with SCH business rules | |
| Power of Court to order compliance with provisions of SCH business rules | |
| Qualified privilege in respect of disciplinary proceedings | |
| Provision of settlement facilities not a securities business etc. | |
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TABLE OF PROVISIONS—
Section | ||
137. | Claim by selling client in respect of default by selling dealer | |
138. | Claim by buying client in respect of default by buying dealer | |
139. |
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952A. | Cash settlement of claims—SCH-regulated transfers | |
140. | Cash settlement of claims—transfers other than SCH-regulated transfers | |
141. | Effect of using a transfer delivery service | |
142. | Effect of novation, under business rules, of guaranteed securities loan | |
143. |
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144. | Claim in respect of failure to pay net amount in respect of transactions | |
145. | Claim in respect of failure to transfer net number of securities in respect of transactions | |
146. | How claim under subsection 954P(2) is to be satisfied | |
147. | How claim under subsection 954P(3) is to be satisfied | |
148. | Claims in respect of default by TDS nominee | |
149. | How claim under subsection 954X(2) is to be satisfied | |
150. | Nexus with this jurisdiction | |
151. |
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152. | Repeal of section 956 and substitution of new section: | |
| Situations to which Division applies | |
153. | Claim by transferee or sub-transferee | |
154. | Discretion to pay amounts not received etc. because of failure to transfer securities | |
155. | Application of Fund in respect of certain claims | |
156. | Arbitration of amount of cash settlement of certain claims | |
157. | Subrogation of SEGC to claimant’s rights etc. | |
158. | Nature of shares and other interests | |
159. | Numbering shares | |
160. | Instrument of transfer | |
161. | Duties of company with respect to issue of certificates | |
162. | Insertion of heading | |
163. | Interpretation | |
164. | Insertion of new sections: | |
| Quoted securities and rights | |
| SCH business rules may provide that securities or rights continue to be quoted securities or rights | |
| Commission may declare Law applies to securities as if they were quoted securities or rights | |
| Transfer that substantially complies with SCH business rules | |
165. | Insertion of new heading and section: | |
| Subdivision does not apply to SCH-regulated transfers | |
166. | Insertion of new headings and sections: | |
| Member organisation’s authority to enter into transaction continues despite client’s death | |
| Authority to enter into transaction gives authority to transfer | |
| Effect of proper SCH transfer | |
| Effect of proper SCH transfer on transferee | |
| Warranties by member organisation whose identification code is included in transfer document | |
| Indemnities in respect of warranted matters | |
| Joint and several warranties and liabilities | |
| Quoted securities and rights from other jurisdictions: effect of sections 1109E, 1109F and 1109G | |
| Securities clearing house entitled to assume its business rules complied with | |
| SCH-regulated transfer not to be registered unless proper SCH transfer | |
| Issuing body not to refuse to register proper SCH transfer | |
| Trustees and legal representatives may be SCH participants etc. | |
TABLE OF PROVISIONS—
Section | ||
167. | Operation of Division | |
168. | Occupation need not appear in transfer document, register etc. | |
169. | Insertion of new section: | |
| Offences: inclusion of identification codes in proper SCH transfers | |
170. | Power of Court to make certain orders | |
171. | Repeal of section 1301 and substitution of new section: | |
| Location of books on computers | |
172. | Form and evidentiary value of books | |
173. | Schedule 3 | |
PART 6—MISCELLANEOUS | ||
174. | Dictionary | |
175. | Address of registered office etc. | |
176. | Return of allotment | |
177. | Insertion of new section: | |
335A. | Company’s address for service for the purposes of section 335 | |
178. | Exemption of certain companies | |
179. | Insertion of new section: | |
| Minister may delegate prescribed functions and powers under this Law | |
180. | Functions and powers | |
181. | Liability for damages | |
PART 7—COMMENCEMENT AND APPLICATION OF CHANGES TO THE CORPORATIONS LAW RESULTING FROM THIS ACT | ||
182. | Effect of this Part | |
183. | General penalty provisions | |
184. | Changes to section 597 | |
185. | Insertion of new Division: | |
| Commencement of subsection 6(4) | |
| Application of changes to section 187 | |
| Application of change to paragraph 230(1)(d) | |
| Application of certain changes to section 232 | |
| Application of sections 243H and 243ZE | |
| Application of subsection 307(2) | |
| Application of change to section 318 | |
| Application of certain changes to Part 5.2 | |
| Continued application of old Part 5.3 and related provisions | |
| Certain provisions continue to apply in relation to official management | |
| Application of new provisions relating to winding up | |
| Continued application of old Parts 5.4, 5.5 and 5.6 | |
| Continued application of old sections 589, 590 and 592 | |
| Continued effect of authorisations under subsections 597(1) and 598(1) | |
| Continued application of old section 597 | |
| Application of change to paragraph 1091(1A)(b) | |
| Application of change to section 1301 | |
| Application of Part 9.4B to contravention committed before that Part commenced | |
TABLE OF PROVISIONS—
SCHEDULE 1 |
AMENDMENTS OF THE CORPORATIONS LAW CONSEQUENT ON PART 4 OF THIS ACT |
SCHEDULE 2 |
AMENDMENTS OF ACTS CONSEQUENT ON PART 4 OF THIS ACT |
An Act to change the Corporations Law and to amend some other Acts
[
The Parliament of Australia enacts:
1. This Act may be cited as theCorporate Law Reform Act 1992.
(2) Subsections 26(2) and 28(1) commence on 1 February 1994.
Subject to subsection (4), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
If a provision referred to in subsection (3) does not commence under that subsection within the period of 6 months beginning on the
day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
3. In this Act:
(a) if the expression occurs in a Division of a Part—to that Division; or
(b) otherwise—to the Part in which the expression occurs.
“
“73A. An Australian court finds a person guilty of an offence if, and only if:
(a) the court convicts the person of the offence; or
(b) the person is charged before the court with the offence and is found in the court to have committed the offence, but the court does not proceed to convict the person of the offence.”.
“(4A) A person is or becomes subject to a civil penalty disqualification if, and only if, an order relating to the person is in
force, or is made, as the case may be, under paragraph 1317EA(3)(a), and a reference to a civil penalty disqualification is a reference to an order so in force or made.”.
8. Section 224 of the Corporations Law is amended:
(a) by adding at the end of paragraphs (1)(a), (b), (c), (d) and (e) or ;
(b) by adding at the end of subsection (1) the following word and paragraph:“; or (h) becomes subject to a civil penalty disqualification.”;
(c) by inserting after subsection (6) the following subsection:“(6A) A person whose office is vacated because of paragraph (1)(h) cannot, without the leave of the Court granted under section 1317EF, be re-appointed as a director until the end of the period specified in the disqualification.”.
“or (d) of an offence of which the person is guilty because of subsection 1317FA(1);”.
10. Section 230 of the Corporations Law is amended:
(a) by adding at the end of paragraphs (1)(a) and (b) “or”;
(b) by omitting from paragraph (1)(d) all the words after “relevant officer” and substituting “of a body corporate (other than a corporation), the relevant person did an act, or made an omission, that would have constituted a contravention of subsection 232(2) or (4) in relation to the body if the body had been a corporation at that time;”.
11. Section 232 of the Corporations Law is amended:
(a) by omitting subsections (3) and (4) and substituting the following subsection:“(4) In the exercise of his or her powers and the discharge of his or her duties, an officer of a corporation must exercise the degree of care and diligence that a reasonable person in a like
position in a corporation would exercise in the corporation’s circumstances.”;
(b) by omitting subsections (7), (8), (9) and (10) and substituting the following subsection:“(6B) Subsections (2), (4), (5) and (6) are civil penalty provisions as defined by section 1317DA, so Part 9.4B provides for civil and criminal consequences of contravening any of them, or of being involved in a contravention of any of them.”.
12. Section 243 of the Corporations Law is amended:
(a) by omitting from subsection (1) “Act” and substituting “Law”;
(b) by inserting in paragraph (1)(a) “or paragraph 1317EA(3)(a)” after “599(2)”.
“(2) If subsection (1) applies, the report must also contain, or have attached to it, a statement that sets out:
(a) how many meetings of the company’s directors (including meetings of committees of directors) were held during the financial year, or would have been so held if a quorum had been present; and
(b) in relation to each person who was a director of the company throughout the financial year—how many of the meetings referred to in paragraph (a) the person attended; and
(c) in relation to each person who was such a director during some but not all of the financial year:
(i) how many of the meetings referred to in paragraph (a) were held while the person was such a director; and
(ii) how many of the meetings referred to in paragraph (a) the person attended while he or she was such a director.”.
“(2) Subsection (1) is a civil penalty provision as defined by section 1317DA, so Part 9.4B provides for civil and criminal consequences of contravening it, or of being involved in a contravention of it.”.
References to civil penalty disqualification inserted in certain provisions
(a) subsection 1280(3);
(b) subsection 1282(4);
(c) subsection 1287(4);
(d) paragraph 1292(7)(a);
is amended by omitting “or a section 600 notice” and substituting “, a section 600 notice or a civil penalty disqualification”.
16. Section 1313 of the Corporations Law is amended:
(a) by inserting in paragraph (4)(b) “not” before “done”;
(b) by omitting subsection (8) and substituting the following subsection:
“(8) In this section:
‘authority’ includes a person;
‘prescribed offence’ means:
(a) a subsection 1311(5) offence; or
(b) an offence against this Law that the regulations prescribe for the purposes of this section;
‘prescribed penalty’ , in relation to a prescribed offence in relation to which the Commission may give, or has given, to a person a notice under subsection (1), means:(a) if the offence is a subsection 1311(5) offence:
(i) if the regulations prescribe in relation to the offence for the purposes of this paragraph an amount not exceeding one half the amount of the penalty applicable to the offence:
(A) if the person is a body corporate—a penalty of five times the amount so prescribed; or
(B) otherwise—a penalty of the amount so prescribed; or
(ii) otherwise:
(A) if the person is a body corporate—a penalty of 1.25 times the amount of the penalty applicable to the offence; or
(B) otherwise—a penalty of 0.25 times the amount of the penalty applicable to the offence; or
Note: Section 1311 provides for the penalty applicable to an offence.
(b) otherwise—a penalty of the amount that the regulations prescribe in relation to the offence;
‘subsection 1311(5) offence’ means an offence the penalty applicable to which is provided for by subsection 1311(5).”.
“
PART 9.4B —CIVIL AND CRIMINAL CONSEQUENCES OF CONTRAVENING CIVIL PENALTY PROVISIONS
“
“1317DA. Each of the following provisions of the Corporations Law of this jurisdiction is a civil penalty provision:
Subsections 232(2), (4), (5) and (6);
Subsections 243ZE(2) and (3);
Subsection 318(1);
Section 588G.
“1317DB. For the purposes of this Part, a person who is involved in a contravention of a particular provision of this Law or a corresponding law is taken to have contravened that provision.
“1317DC. Where:
(a) a person does or omits to do an act outside this jurisdiction; and
(b) if the person had done or omitted to do that act in this jurisdiction, the person would, because of also having done or omitted to do an act in this jurisdiction, have contravened a civil penalty provision;
the person contravenes that provision.
“1317DD. Where:
(a) a person does or omits to do an act in this jurisdiction; and
(b) if the person had done or omitted to do that act in another jurisdiction, the person would have contravened a provision of the Corporations Law of another jurisdiction that corresponds to a civil penalty provision;
the person contravenes that civil penalty provision.
“
“1317EA.(1) This section applies if the Court is satisfied that a person has contravened a civil penalty provision, whether or not the contravention also constitutes an offence because of section 1317FA.
Note: Section 1317HF provides that a certificate by a court that the court has declared a person to have contravened a civil penalty provision is conclusive evidence of the contravention.
“(2) The Court is to declare that the person has, by a specified act or omission, contravened that provision in relation to a specified corporation, but need not so declare if such a declaration is already in force under Division 4.
“(3) The Court may also make against the person either or both of the following orders in relation to the contravention:
(a) an order prohibiting the person, for such period as is specified in the order, from managing a corporation;
(b) an order that the person pay to the Commonwealth a pecuniary penalty of an amount so specified that does not exceed $200,000.
“(4) The Court is not to make an order under paragraph (3)(a) if it is satisfied that, despite the contravention, the person is a fit and proper person to manage a corporation.
“(5) The Court is not to make an order under paragraph (3)(b) unless it is satisfied that the contravention is a serious one.
“(6) The Court is not to make an order under paragraph (3)(b) if it is satisfied that an Australian court has ordered the person to pay damages in the nature of punitive damages because of the act or omission constituting the contravention.
“(7) Section 91A defines what, for the purposes of this section, constitutes managing a corporation.
“1317EB.(1) An application for a civil penalty order may be made by:
(a) the Commission; or
(b) a Commission delegate; or
(c) some other person authorised in writing by the Minister, under this paragraph, to make the application.
“(2) A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to applications in relation to specified contraventions, or all contraventions, of civil penalty provisions.
“(3) Nothing in this section affects the operation of the
“1317EC. An application for a civil penalty order may be made within 6 years after the contravention.
“1317ED.(1) In hearing and determining an application for a civil penalty order, the Court is to apply the rules of evidence and procedure that it applies in hearing and determining civil matters.
“(2) Subsection (1) has effect subject to the rules.
“1317EF.(1) A person who is subject to a civil penalty disqualification must not manage a corporation except with the leave of the Court.
“(2) Section 91A defines what, for the purposes of this section, constitutes managing a corporation.
“(3) When granting leave under subsection (1), the Court may impose such conditions or restrictions as it thinks appropriate.
“(4) A person must not contravene a condition or restriction imposed under subsection (3).
“(5) A person may only apply for leave under subsection (1) if he or she has given the Commission at least 21 days notice of the application.
“(6) On the application of the Commission, the Court may revoke leave granted under subsection (1).
“1317EG. Where the Court makes under paragraph 1317EA(3)(b) an order that a person pay a pecuniary penalty:
(a) the penalty is payable to the Commission on the Commonwealth’s behalf; and
(b) the Commission or the Commonwealth may enforce the order as if it were a judgment of the Court.
“1317EH.(1) This section applies where it appears to the Commission that a person may have contravened a civil penalty provision.
“(2) If the Commission, on reasonable grounds, suspects or believes that a person can give information relevant to an application for a civil penalty order in relation to the contravention, whether or not such an application has been made, the Commission may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application.
“(3) Subsection (2) does not apply in relation to:
(a) the person referred to in subsection (1); or
(b) a person who is or has been that person’s lawyer.
“(4) Where a person fails to give assistance as required under subsection (2):
(a) the person contravenes this subsection; and
(b) the Court may, on the application of the Commission, order the person to comply with the requirement as specified in the order.
“(5) Nothing in paragraph (4)(b) affects any penalty for a contravention of subsection (4).
“(6) Nothing in this section limits, or is limited by:
(a) section 1317; or
(b) section 49 of the ASC Law.
“
“1317FA.(1) A person is guilty of an offence if the person contravenes a civil penalty provision:
(a) knowingly, intentionally or recklessly; and
(b) either:
(i) dishonestly and intending to gain, whether directly or indirectly, an advantage for that or any other person; or
(ii) intending to deceive or defraud someone.
“(2) A person who contravenes a civil penalty provision is not guilty of an offence except as provided by subsection (1).
“1317FB. Criminal proceedings for an offence constituted by a contravention of a civil penalty provision cannot be begun if a person has already applied for a civil penalty order in relation to the same contravention, even if the application has been finally determined or otherwise disposed of.
“
Division 4 — Effect of criminal proceedings on application for civil penalty order
“1317GA. This Division applies if criminal proceedings are begun against a person for an offence constituted by a contravention of a civil penalty provision.
“1317GB.(1) An application may be made for a civil penalty order against the person in relation to the same contravention.
“(2) However, an application is stayed, because of this subsection, until:
(a) the criminal proceedings; and
(b) all appeals and applications for review (including appeals and applications for review under this Division) arising out of the criminal proceedings;
have been finally determined or otherwise disposed of.
“1317GC. When the criminal proceedings, appeals and applications for review are finally determined or otherwise disposed of:
(a) an application for a civil penalty order in relation to the same contravention cannot be made (except under this Division); and
(b) such an application that was stayed because of subsection 1317GB(2) is, because of this section, dismissed;
if the result of the criminal proceedings, appeals and applications for review is:
(c) a court finding the person guilty of the offence; or
Note: Section 73A defines when a court is taken to find a person guilty of an offence.
(d) the person being acquitted of the offence, unless there is in force a declaration that the person committed the contravention; or
Note: This kind of declaration is made under section 1317GF, 1317GG or 1317GH.
(e) a declaration by a court that the evidence in a committal proceeding for the offence could not satisfy the Court, on an application for a civil penalty order, that the person committed the contravention; or
Note: This kind of declaration is made under section 1317GE.
(f) a declaration by the Court that the person committed the contravention; or
Note: This kind of declaration is made under section 1317GF or 1317GH.
(g) an order by a court prohibiting an application for a civil penalty order in relation to the contravention from being made or from proceeding; or
Note: This kind of order is made under section 1317GJ.
(h) the Court, on an appeal or review, affirming, varying or substituting a declaration that the person committed the contravention.
Note: Section 1317GK applies in this case.
“1317GD. If the result of the criminal proceedings, appeals and applications for review being finally determined or otherwise disposed of is:
(a) a declaration by a court (other than the Court) that the person committed the contravention; or
Note: This kind of declaration is made under section 1317GF, 1317GG or 1317GH.
(b) none of the results referred to in section 1317GC;
then:
(c) if an application for a civil penalty order in relation to the contravention was stayed because of subsection 1317GB(2)—the application may proceed; or
(d) otherwise—such an application may be made and may proceed; as if the criminal proceedings had never begun.
“1317GE.(1) If:
(a) a proceeding in a court for the commitment of the person for trial for the offence is finally determined or otherwise disposed of without the person being committed for trial for the offence; and
(b) the court is satisfied that the evidence in the proceeding could not satisfy the Court, on an application for a civil penalty order in relation to the contravention, that the person committed the contravention;
the court may declare that it is so satisfied.
“(2) A declaration under subsection (1) is subject to appeal or review in the same way as any other order or decision made in the proceeding.
“1317GF.(1) This section applies if the person is tried on indictment for the offence and the jury is satisfied beyond reasonable doubt that the person committed the contravention, but is not satisfied beyond reasonable doubt that the person did so as mentioned in subsection 1317FA(1).
“(2) The jury may find the person not guilty of the offence, but guilty of the contravention.
“(3) If the jury does so, the court is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified corporation.
“(4) If the court is the Court, it may then proceed to make orders under subsection 1317EA(3) on the application of the prosecutor or someone else who has power under section 1317EB to apply for a civil penalty order in relation to the contravention.
“(5) Subsection (4) has effect despite section 1317EC.
“(6) A declaration under subsection (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention.
“1317GG.(1) This section applies if, on the hearing of a proceeding for the summary conviction of the person for the offence, the court is satisfied beyond reasonable doubt that the person committed the contravention but is not satisfied beyond reasonable doubt that the person did so as mentioned in subsection 1317FA(1).
“(2) The court may find the person not guilty of the offence, but guilty of the contravention.
“(3) If the court does so, it is to declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified corporation.
“(4) A declaration under subsection (3) is subject to appeal or review as if it were a conviction by the court for an offence constituted by the contravention.
“1317GH.(1) This section applies if:
(a) a court finds the person guilty of the offence; and
(b) on appeal or review, a court makes an order determining the criminal proceedings for the offence in a way that does not involve convicting the person of that or any other offence; and
(c) the court is satisfied beyond reasonable doubt that the person committed the contravention.
“(2) The court may declare that the person has, by a specified act or omission, contravened the civil penalty provision in relation to a specified corporation.
“(3) If the court is the Court, it may then proceed to make orders under subsection 1317EA(3) on the application of the prosecutor or someone else who has power under section 1317EB to apply for a civil penalty order in relation to the contravention.
“(4) Subsection has effect despite section 1317EC.
“(5) A declaration under subsection (2) is subject to appeal or review in the same way as any other order or decision that was made on the appeal or review or might have been made.
“1317GJ. If a court sets aside a declaration made under section 1317GF, 1317GG or 1317GH, the court may, by order, prohibit an application for a civil penalty order in relation to the contravention from being made or from proceeding.
“1317GK.(1) This section applies if, on an appeal from, or review of, a declaration made under section 1317GF, 1317GG or 1317GH by a court other than the Court, the Court determines the appeal or review by:
(a) affirming or varying the declaration; or
(b) substituting another declaration for the first-mentioned declaration.
“(2) The Court may then proceed to make orders under subsection 1317EA(3) on the application of the prosecutor or someone else who has power under section 1317EB to apply for a civil penalty order in relation to the contravention.
“(3) Subsection (2) has effect despite section 1317EC.
“1317GL. For the purposes of an appeal or review under subsection 1317GE(2), 1317GF(6), 1317GG(4) or 1317GH(5), a law about appeals or review has effect with such modifications as the circumstances require.
“
“1317HA.(1) Where, on an application for a civil penalty order against a person in relation to a contravention, the Court is satisfied that:
(a) the person committed the contravention; and
(b) the corporation in relation to which the contravention was committed has suffered loss or damage as a result of the act or omission constituting the contravention;
the Court may (whether or not it makes an order under subsection 1317EA(3)) order the person to pay to the corporation compensation of such amount as the order specifies.
“(2) A corporation may intervene in an application for a civil penalty order against a person in relation to a contravention, unless the application was made under Division 4.
“(3) A corporation that so intervenes is entitled to be heard:
(a) only if the Court is satisfied that the person committed the contravention in relation to that corporation; and
(b) only on the question whether the Court should order the person to pay compensation to the corporation because of the contravention.
“1317HB.(1) If:
(a) a court finds a person guilty of an offence constituted by a contravention of a civil penalty provision in relation to a corporation; and
(b) the court is satisfied that the corporation has suffered loss or damage as a result of the act or omission constituting the contravention;
the court may (whether or not it imposes a penalty) order the person to pay to the corporation compensation of such amount as the order specifies.
Note: Section 73A defines when a court is taken to find a person guilty of an offence.
“(2) If:
(a) a court declares under Division 4 that a person has, by an act or omission, contravened a civil penalty provision in relation to a corporation; and
(b) the court is satisfied that the corporation has suffered loss or damage as a result of that act or omission;
the court may (whether or not it makes an order under subsection 1317EA(3)) order the person to pay to the corporation compensation of such amount as the order specifies.
“1317HC. An order to pay compensation that a court makes under section 1317HA or 1317HB may be enforced as if it were a judgment of the court.
“1317HD.(1) Where a person contravenes a civil penalty provision in relation to a corporation, the corporation may, by proceedings in a court of competent jurisdiction, recover from the person, as a debt due to the corporation:
(a) if that or another person has made a profit because of the act
or omission constituting the contravention—an amount equal to the amount of that profit; and
(b) if the corporation has suffered loss or damage as a result of that act or omission—an amount equal to the amount of that loss or damage;
whether or not:
(c) the first-mentioned person has been convicted of an offence in relation to the contravention; or
(d) a civil penalty order has been made against the first-mentioned person in relation to the contravention.
“(2) Proceedings under this section may only be begun within 6 years after the contravention.
“1317HE. Sections 1317HA, 1317HB and 1317HD:
(a) have effect in addition to, and not in derogation of, any rule of law about the duty or liability of a person because of the person’s office or employment in relation to a corporation; and
(b) do not prevent proceedings from being instituted in respect of a breach of such a duty or in respect of such a liability.
“1317HF. For the purposes of this Part, a certificate that:
(a) purports to be signed by the Registrar or other proper officer of an Australian court; and
(b) states:
(i) that that court has declared that a specified person has, by a specified act or omission, contravened a specified civil penalty provision in relation to a specified corporation; or
(ii) that a specified person was convicted by that court of an offence constituted by a specified contravention of a civil penalty provision in relation to a specified corporation; or
(iii) that a specified person charged before that court with such an offence was found in that court to have committed the offence but that the court did not proceed to convict the person of the offence;
is, unless it is proved that the declaration, conviction or finding was set aside, quashed or reversed, conclusive evidence:
(c) that the declaration was made, that the person was convicted of the offence, or that the person was so found, as the case may be; and
(d) that the person committed the contravention.
“
“1317JA.(1) In this section:
“(2) Where, in eligible proceedings against a person, it appears to the court that the person has, or may have, contravened a civil penalty provision but that:
(a) the person has acted honestly; and
(b) having regard to all the circumstances of the case (including, where applicable, those connected with the person’s appointment as an officer of a corporation or of a Part 5.7 body), the person ought fairly to be excused for the contravention;
the court may relieve the person either wholly or partly from a liability to which the person would otherwise be subject, or that might otherwise be imposed on the person, because of the contravention.
“(3) In determining under subsection (2) whether a person ought fairly to be excused for a contravention of section 588G, the matters to which regard is to be had include, but are not limited to:
(a) any action the person took with a view to appointing an administrator of the company or Part 5.7 body; and
(b) when that action was taken; and
(c) the results of that action.
“(4) Where a person thinks that eligible proceedings will or may be begun against him or her, he or she may apply to the Court for relief.
“(5) On an application under subsection (4), the Court may grant relief under subsection (2) as if the eligible proceedings had been begun in the Court.
“(6) For the purposes of subsection (2) as applying for the purposes of a case tried by a judge with a jury:
(a) a reference in that subsection to the court is a reference to the judge; and
(b) the relief that may be granted includes withdrawing the case in whole or in part from the jury and directing judgment to be entered for the defendant on such terms as to costs as the judge thinks appropriate.
“(7) Nothing in this section limits, or is limited by, section 1318.
“1317JB.(1) This section applies where an act or omission constitutes:
(a) a contravention (in this section called the
‘local contravention’ ) of a civil penalty provision; and(b) a contravention (in this section called the
‘other contravention’ ) of a provision of the Corporations Law of another jurisdiction that corresponds to that civil penalty provision.
“(2) A person who has been punished for an offence constituted by the other contravention is not liable to be punished for an offence constituted by the local contravention.
“(3) If a civil penalty order within the meaning of that Law has been made in relation to the other contravention, no civil penalty order within the meaning of this Law can be made in relation to the local contravention.
“(4) Criminal proceedings for an offence constituted by the local contravention cannot be begun if a person has already applied for a civil penalty order, within the meaning of that Law, in relation to the other contravention, even if the application has been finally determined or otherwise disposed of.
“(5) Sections 1317GB, 1317GC and 1317GD apply in relation to the local contravention as if:
(a) criminal proceedings of a particular kind for an offence constituted by the other contravention were proceedings of the corresponding kind for an offence constituted by the local contravention; and
(b) a court within the meaning of that Law were a court within the meaning of this Law; and
(c) anything done under a provision of Division 4 of Part 9.4B of that Law had been done under the corresponding provision of this Law.
“(6) Nothing in this section limits, or is limited by, anything in section 1310A, 1310B or 1317FB.
“(7) The effect that sections 1317GB, 1317GC and 1317GD have because of subsection (5) of this section is additional to, and does not prejudice, the effect those sections otherwise have.
“1317JC. Nothing in this Part limits a court’s power to order someone to pay damages in the nature of punitive damages because of an act or omission constituting a contravention of a civil penalty provision.”.
18. Schedule 3 to the Corporations Law is amended:
(a) by omitting:“
Subsection 232(4): Penalty: $5,000.
Subsection 232(5): Penalty: $20,000 or imprisonment for 5 years, or both.
Subsection 232(6): Penalty: $20,000 or imprisonment for 5 years, or both.”;
(b) by inserting before “Section 1323 :”:“
Subsection 1317EF(1) or (4): Penalty: $5,000 or imprisonment for 1 year, or both.
Subsection 1317FA(1): Penalty: $200,000 or imprisonment for 5 years, or both.”.
Division 2 —Amendment of the Australian Securities Commission Act 1989 2
“(3AA) An amount payable under an order made under paragraph 1317EA(3)(b) of the Corporations Law of a State or Territory is not provable in bankruptcy.”.
PART 3 —FINANCIAL BENEFITS TO RELATED PARTIES OF PUBLIC COMPANIES
22. Section 9 of the Corporations Law is amended:
(a) by omitting the definitions of “control”, “parent entity” and “public company” and substituting the following definitions:“
‘control’, in relation to an entity, has:
(a) in Part 3.2A—the meaning given by section 243E; and
(b) in Parts 3.6 and 3.7—the meaning given by section 294B;
‘parent entity’ :
(a) in Part 3.2A—has the meaning given by subsection 243D(1); and
(b) in Parts 3.6 and 3.7—has the meaning given by section 294A;
‘public company’ means a company other than a proprietary company and:
(a) in the definition of ‘public corporation’ (in this section) and in paragraph 228(1)(b) and subsection 879(1), includes a body corporate that is a public company for the purposes of the Corporations Law of another jurisdiction; and
(b) in section 232A, Part 3.2A and section 1376, includes a body corporate (other than a prescribed body corporate) that:
(i) is incorporated, or taken to be incorporated, in this jurisdiction, but not under the Corporations Law of this jurisdiction; and
(ii) is included in the official list of a securities exchange; and
(c) in Part 3.2A and section 1376, does not include a company in respect of which a licence under section 383 is in force;”;
(b) by inserting the following definitions:“
‘child entity’ has in Part 3.2A the meaning given by subsection 243D(2);
‘financial benefit’ has in Part 3.2A a meaning affected by section 243G;
‘related party’ has in Part 3.2A the meaning given by section 243F;
‘sibling entity’ has in Part 3.2A the meaning given by subsection 243D(3);”.
24. Section 231 of the Corporations Law is amended:
(a) by inserting in subsection (1) “proprietary” before “company” (first occurring);
(b) by inserting in subsection (6) “proprietary” before “company” (first occurring).
“232A.(1) A director of a public company who has a material personal interest in a matter that is being considered at a meeting of the board, or of directors, of the company:
(a) must not vote on the matter (or in relation to a proposed resolution under subsection (3) in relation to the matter, whether in relation to that or a different director); and
(b) must not be present while the matter (or a proposed resolution of that kind) is being considered at the meeting.
Note: In this section, ‘public company’ has an extended meaning: see paragraph (b) of the definition of ‘public company’ in section 9.
“(2) Subsection (1) does not apply to an interest that the director has:
(a) as a member of the company; and
(b) in common with the other members of the company.
“(3) Subsection (1) does not apply if the board has at any time passed a resolution that:
(a) specifies the director, the interest and the matter; and
(b) states that the directors voting for the resolution are satisfied that the interest should not disqualify the director from considering or voting on the matter.
“(4) A quorum is not present during the consideration of a matter at a meeting of the board, or of directors, of a public company unless at least 2 directors are present who are entitled to vote on any motion that may be moved at the meeting in relation to that matter.
“(5) A general meeting of a public company may deal with a matter in so far as the board cannot deal with it because of subsection (4).
“(6) If:
(a) someone proposes a resolution of a public company’s board in connection with a general meeting of the company dealing with a matter; and
(b) subsection (4) would prevent the proposed resolution from being considered;
subsections (1) and (4) do not apply in relation to a motion that relates to the proposed resolution.
“(7) If, because of subsection (6), subsection (4) does not apply in relation to a motion that is considered or voted on at a meeting, the directors present must ensure that the minutes record that fact.
“(8) A public company’s constitution may restrict a director’s entitlement to vote, or to be present, at a meeting even if this section would not.
“232B.(1) The Commission may by writing declare that, for the purposes of all or specified meetings of the board, or of directors, of a company, subsections 232A(1) and (4) do not apply in relation to a specified matter, but may only do so if satisfied that:
(a) the matter could not otherwise be dealt with at those meetings because of subsection 232A(4); and
(b) because it is urgent or for some other compelling reason, the matter should be dealt with at those meetings and not by a general meeting, even though directors have a material personal interest in the matter.
“(2) A declaration may be expressed to apply generally or as otherwise specified, and may be subject to:
(a) a specified condition to be complied with, in relation to the matter, by the company or a director; or
(b) 2 or more such conditions.
“(3) A declaration has effect accordingly.
“(4) A company or a director must not contravene a condition.
“(5) The Commission may by writing vary or revoke a declaration.”.
26.(1) Section 234 of the Corporations Law is amended:
(a) by omitting from subsection (1) “a company shall not” and substituting “a public company must not”;
(b) by inserting before paragraph (3)(a) the following paragraph:
“(aa) to anything done by a public company to which sections 243H and 243ZE apply because of section 1376;”.
(2) Section 234 of the Corporations Law is repealed.
“
PART 3.2A — FINANCIAL BENEFITS TO RELATED PARTIES OF PUBLIC COMPANIES
“
“243A. The object of this Part is to protect:
(a) a public company’s resources (in particular, those available to pay the company’s creditors); and
(b) the interests of its members as members;
by requiring that, in general, financial benefits to related parties that could diminish or endanger those resources, or that could adversely affect those interests, be disclosed, and approved by a general meeting, before they are given.
“243B.(1) Division 2 explains expressions used in this Part.
“(2) Division 3 sets out the prohibitions that give effect to the object of this Part.
“(3) Division 4 creates general exceptions for financial benefits that are consistent with the object of this Part.
“(4) Division 5 enables a public company in general meeting to permit a financial benefit not covered by the general exceptions.
“(5) Division 6 enforces the prohibitions (section 243ZE), creates some other offences (sections 243ZF and 243ZH) and describes how this Part interacts with other laws (section 243ZI).
“
“243C.(1) Each of the following is an entity:
(a) a body corporate;
(b) a partnership;
(c) an unincorporated body;
(d) an individual;
(e) a trustee of a trust that has only one trustee.
“(2) If a trust has 2 or more trustees, those trustees together constitute an
“(3) Subject to subsections (1) and (2), if an accounting standard:
(a) deals with disclosure in companies’ financial statements of information about related parties (for example, about transactions between companies and related parties); and
(b) is in force at a particular time (even if the standard does not
apply to a financial year of a company in which that time occurs); and
(c) defines the expression ‘entity’;
the question of what is or was an
“243D.(1) An entity is a
parent entity of another entity if:
(a) both are bodies corporate and the first entity is a holding company of the other; or
(b) the first entity has control over the other.
“(2) An entity is a
“(3) An entity is a
“243E. If an accounting standard:
(a) deals with disclosure in companies’ financial statements of information about related parties (for example, about transactions between companies and related parties); and
(b) is in force at a particular time (even if the standard does not apply to a financial year of a company in which that time occurs); and
(c) provides for determining whether an entity has control over another entity;
the question of whether an entity has or had
“243F.(1) Each of the following is a
(a) a director of the public company;
(b) a director of a body corporate that is a parent entity of the public company;
(c) one of the persons constituting an entity (other than a body corporate) that is a parent entity of the public company;
(d) a spouse or de facto spouse of such a director or person;
(e) a parent, son or daughter of such a director, person, spouse or de facto spouse;
(f) an entity (other than a child entity of the public company) over which:
(i) a person of a kind referred to in paragraph (a), (b), (c),
(d) or (e) has control; or
(ii) 2 or more such persons together have control;
(g) a parent entity or sibling entity of the public company.
“(2) An entity is also a
“(3) An entity is also a
(a) the entity believes at that time, or has at that time reasonable grounds to believe, that it is likely to become an entity of a particular kind at some future time; and
(b) by becoming an entity of that kind, it would become at that future time a related party of the public company because of subsection (1).
“(4) For the purposes of subsection (3), an entity (other than a body corporate) constituted by 2 or more persons is taken to believe, or to have reasonable grounds to believe, something if at least one of those persons believes, or has such grounds to believe, that thing.
“(5) If, at a particular time, an entity:
(a) was or is a related party of a public company because of subsection (1), (2) or (3); and
(b) acted, or proposes to act, in concert with another entity (
‘the associate’ ) in respect of the giving or proposed giving of a financial benefit (‘the primary benefit’ ) by the public company, or by a child entity of the public company, to the associate; and(c) so acted, or proposes so to act, for the reason, or for reasons including the reason, that a financial benefit has been given to a related party of the public company or is expected to be so given;
the associate is a
“243G.(1) A reference to an entity giving a financial benefit:
(a) is intended to operate broadly, even though criminal or civil penalties may be involved; and
(b) includes a reference to giving a financial benefit indirectly (for example, through one or more interposed entities) or by making or giving effect to a relevant agreement (as defined in section 9).
“(2) In deciding whether an entity has given a financial benefit:
(a) the economic and commercial substance and effect of what the entity has done is to prevail over its legal form; and
(b) any consideration that has been or may be given for the benefit is to be disregarded, even if it is full or adequate.
“(3) A benefit that does not involve the payment of money can still be a financial benefit: for example, if it confers some financial advantage.
“(4) A few examples of an entity giving a financial benefit to another entity are:
(a) the first entity lending the other money, guaranteeing a loan to the other, or providing security for a loan to the other;
(b) the first entity forgiving a debt owed by the other, otherwise releasing, or neglecting to enforce, an obligation of the other, or assuming an obligation of the other;
(c) the first entity buying or leasing an asset from the other, or selling or leasing an asset to the other;
(d) the first entity acquiring services from the other, or supplying services to the other;
(e) the first entity issuing securities, or granting an option, to the other;
(f) the first entity giving money or property to the other.
“
“243H.(1) A public company must not give a financial benefit to a related party except as permitted by Division 4 or 5.
“(2) A child entity of a public company must not give a financial benefit to a related party of the public company except as permitted by Division 4 or 5.
Definitions:
‘public company’: see the definition in section 9 (note especially paragraph (b) of the definition); ‘give a financial benefit’: see section 243G;
‘related party’: see section 243F;
‘child entity’: see subsection 243D(2).
“
“243J.(1) Section 243H does not prevent a public company, or a child entity of a public company, from giving a financial benefit to a related party of the public company as required by a contract made before the day on and after which that section applies to the public company because of section 1376.
“(2) A company may lodge a notice in the prescribed form stating that the company no longer has an address for service for the purposes of section 335.
“(3) A notice lodged under subsection (1) or (2) takes effect at the beginning of:
(a) if the notice specifies, as the day on which it is to take effect, a day that is more than 7 days after the day of lodgment—the day so specified; or
(b) otherwise—the eighth day after the day of lodgment.
“(4) The Commission may serve a document on a company under subsection 335(2) by leaving it at, or sending it by post to, the address specified in:
(a) if only one notice lodged by the company under subsection (1) has taken effect—that notice; or
(b) if 2 or more such notices have taken effect—the later or latest such notice to take effect;
unless a notice lodged by the company under subsection (2) has taken effect since the notice referred to in paragraph (a) or (b) of this subsection took effect.
“(5) The address specified in a notice under subsection (1) need not be the address of particular premises, but may be a postal address, for example, a post office box number at a post office.
“(6) This section does not affect the operation of any other provision of this Law or any other law of the Commonwealth or of this jurisdiction that authorises a document to be served otherwise than as provided in subsection (4).”.
Section 337 of the Corporations Law is amended by omitting from subsection (1) “Division” (twice occurring) and substituting “Part”.
Before section 1346 of the Corporations Law the following section is inserted in Part 9.9:
“1345A.(1) The Minister may, by signed instrument, delegate to an officer of the Department such of the Minister’s functions and powers under this Law as are prescribed.
“(2) A delegate is, in the performance or exercise of a delegated function or power, subject to the Minister’s directions.”.
Division 2 —Amendments of the Australian Securities Commission Act 1989 2
180. Section 226 of the Principal Act is amended:
(a) by inserting after subsection (4) the following subsection:“(4A) The Standards Board must, so far as it is reasonably practicable to do so, ensure that the New Zealand authority is consulted in the course of:
(a) the development of possible accounting standards; and
(b) the review of proposed accounting standards.”;
(b) by inserting in subsection (5) the following definition:“
‘New Zealand authority’ means the person or authority that in New Zealand has functions that are analogous to the functions of the Standards Board.”.
181. Section 246 of the Principal Act is amended:
(a) by inserting before paragraph (a) the following paragraph:“(aa) the Minister;”;
(b) by adding at the end the following subsection:“(2) The protection from liability given by subsection (1) to the Minister applies only in respect of acts done, and omissions occurring, after the commencement of section 181 of the
Corporate Law Reform Act 1992 ”.
“(4) Where, because of Part 9.11, provisions of this Law, as in force at a particular time, continue to apply:
(a) in relation to someone or something; or
(b) for particular purposes;
then, for the purposes of those provisions as so applying:
(c) this Part as in force at that time continues to have effect; and
(d) this Part as in force at a later time does not have effect.
“(3A) Where, because of Part 9.11, provisions of this Law, as in force at a particular time, continue to apply:
(a) in relation to someone or something; or
(b) for particular purposes;
then, for the purposes of those provisions as so applying:
(c) Schedule 3 as in force at that time continues to have effect; and
Schedule 3 as in force at a later time does not have effect; except so far as the contrary intention appears in this Law.”.
184. Section 1370 of the Corporations Law is amended:
(a) by inserting in subsection (1) “and before the commencement of section 117 of the
Corporate Law Reform Act 1992 ” after “1992 ”;(b) by omitting from subsection (1) “that” (twice occurring) and substituting “the first-mentioned”.
“
Division 5 — Changes resulting from the Corporate Law Reform Act 1992
“1372. Subsection 6(4) is taken to have commenced on 27 June 1991.
“1373.(1) Subsections 187(3), (4) and (4A), as in force after the commencement of section 176 of the
“(2) Subsections 187(3) and (4), as in force before that commencement, continue to apply in relation to an allotment made, or taken to have been made, before that commencement.
“1374.(1) Paragraph 230(1)(d), as in force after the commencement of section 10 of the
“(2) Paragraph 230(1)(d), as in force before that commencement, continues to apply in relation to an act done, or a failure committed, by a person before that commencement, unless:
(a) the act or failure constituted a contravention of subsection 232(3) or (4) as so in force; and
(b) the person consents under subsection 1389(1) to Part 9.4B applying in relation to the contravention; and
(c) when the person so consents, no application made under subsection 230(1) in relation to the act or failure, and no appeal arising out of such an application, is pending.
“1375.(1) Subsection 232(3) of this Law, as in force before the commencement of section 11 of the
“(2) Subsections 232(7), (8), (9) and (10) of this Law, as in force before the commencement of section 11 of the
“1376.(1) Sections 243H and 243ZE apply to a public company on and after 1 February 1994.
“(2) A majority of a public company’s directors may elect in writing that sections 243H and 243ZE apply to the company on and after a specified day that is sooner than 1 February 1994.
“(3) An election has effect accordingly and cannot be revoked.
“1377. Subsection 307(2) applies in relation to a company in relation to a financial year of the company that ends at or after the commencement of section 13 of the
“1378. Subsection 318(2) of this Law, as in force before the commencement of section 14 of the
“1379.(1) The following apply in relation to a controller of property of a corporation if, and only if, the control day begins at or after the commencement of section 40 of the
(a) sections 419A, 420A, 420B and 421A, subsection 428(2) and sections 434A, 434B and 434C of this Law;
(b) sections 423, 424, 426, 429, 430, 431, 432 and 434 of this Law, as in force after that commencement.
“(2) Sections 423, 424, 426, 429, 430, 431, 432 and 434, as in force before the commencement of section 40 of the
“(3) Section 420C applies in relation to a receiver, or receiver and manager, of property of a corporation if, and only if, the control day begins at or after the commencement of section 41 of the
“(4) Section 421, as in force after the commencement of section 42 of the
(a) applies in relation to a receiver, or receiver and manager, of property of a corporation even if the control day began before that commencement; and
(b) applies in relation to any other controller of property of a corporation if, and only if, the control day began at or after that commencement.
“1380.(1) If, before the commencement of section 56 of the
“(2) While a company is under official management, an administrator of the company cannot be appointed under section 436A, 436B or 436C.
“1381. Except so far as the contrary intention appears, in this Law (other than Part 5.3A, Division 1A of Part 5.6 and section 556):
(a) a reference to an administrator of a body corporate or relevant body being appointed under section 436A, 436B or 436C includes a reference to the body being placed under official management; and
(b) a reference to a body corporate or relevant body being under administration includes a reference to the body being under official management; and
(c) a reference to a body corporate or relevant body that is or has
been under administration includes a reference to such a body that is, or has been, as the case may be, under official management; and
(d) a reference to an administrator of a body corporate, of a relevant body, or of an entity within the meaning of Parts 3.6 and 3.7, includes a reference to an official manager or deputy official manager of the body or entity;
even if the body or entity ceased before the commencement of section 56 of the
“1382. Subject to sections 1383, 1384 and 1386, the following provisions:
(a) Parts 5.4, 5.4A, 5.4B, 5.5 and 5.6;
(b) sections 589, 590 and 592;
(c) Division 1 of Part 5.9;
(d) section 598;
as in force after the commencement of section 57 of the
(e) acts done; and
(f) omissions made; and
(g) events occurring; and
(h) matters and things arising;
whether before, at or after that commencement.
“1383.(1) In this section:
“(2) If, before the relevant commencement, the Court ordered the winding up of a company, the old winding up law continues to apply for the purposes of the winding up.
“(3) If, before the relevant commencement, an application was made for the Court to order the winding up of a company, the old winding up law continues to apply for the purposes of:
(a) determining, or otherwise disposing of, the application; and
(b) winding up the company under an order of the Court made on the application.
“(4) If, before the relevant commencement, a demand was served on a company under paragraph 460(2)(a), the old winding up law continues to apply for the purposes of:
(a) making after that commencement, in reliance on the demand, an application for the Court to order the winding up of the company on the ground provided for by subsection 460(1); and
(b) determining, or otherwise disposing of, an application of that kind so made; and
(c) winding up the company under an order of the Court made on an application of that kind so made.
“(5) If, before the relevant commencement, a company passed a special resolution under section 491 that the company be wound up voluntarily, the old winding up law continues to apply for the purposes of:
(a) the voluntary winding up; and
(b) making after that commencement an application for the Court to order the winding up of the company; and
(c) determining, or otherwise disposing of, an application of that kind made after that commencement; and
(d) winding up the company under an order of the Court made, after that commencement, on an application of that kind.
“(6) Even if the old winding up law continues to apply, because of this section, for particular purposes relating to a company, an administrator of the company may still be appointed under section 436A, 436B or 436C.
“(7) The old winding up law continues to apply, because of this section, as if:
(a) despite subsection 6(4), there were inserted in section 9 (as in force before the relevant commencement) the definitions of ‘administration’, ‘administrator’ and ‘deed of company arrangement’ that section 29 of the
Corporate Law Reform Act 1992 inserts in section 9 of the Corporations Law set out in section 82 of theCorporations Act 1989 ; and(b) despite subsection 6(4), section 82A of this Law (as so in force) were amended as set out in section 33 of that Act; and
(c) section 468 of this Law (as so in force) were amended as set out in section 65 of that Act; and
(d) section 481 of this Law (as so in force) were amended as set out in section 75 of that Act; and
(e) section 556 of this Law (as so in force) were amended by inserting after paragraph (1)(d) the following paragraphs:
‘(da) if the company has been under administration, even if the administration ended before the relevant date— next, the costs, charges and expenses, of and incidental to the administration, properly and reasonably incurred by the administrator, including the administrator’s remuneration;
(db) if paragraph (da) applies—next, the debts for which paragraph 443D(a) entitles an administrator of the company to be indemnified, except costs, charges and expenses covered by paragraph (da) of this subsection;
(dc) if the company has executed a deed of company arrangement, even if it terminated before the relevant date—next, the costs, charges and expenses, of and incidental to executing and giving effect to the deed, properly and reasonably incurred by an administrator of the company or of the deed, including the remuneration of the deed’s administrator;’; and
(f) sections 57 to 64, inclusive, 66 to 74, inclusive, 76 to 109, inclusive, and 111, of that Act had not been enacted.
“(8) Subsection 565(4), as continuing to apply because of this section, has effect subject to Part 5.3A.
“1384.(1) If, immediately before the commencement of section 112 of the
“(2) If, because of section 1383, provisions continue to apply for particular purposes relating to a company, paragraph (a) of the definition of ‘relevant day’ in subsection 589(5), and sections 590 and 592, of this Law, as in force before the commencement of section 112 of the
“(3) Provisions continue to apply, or apply, because of this section, as if paragraph 112(d), and sections 113 and 114, of the
“1385. An authorisation that, immediately before the commencement of section 117 or 119 of the
“1386.(1) If, before the commencement of section 117 of the
“(2) If, before that commencement, an application was made under subsection 597(2) of this Law, then section 597 of this Law, as in force before that commencement, continues to apply for the purposes of:
(a) determining, or otherwise disposing of, the application; and
(b) holding an examination under an order made under subsection 597(3) on the application.
“1387. Paragraph 1091(1A)(b) of this Law, as in force immediately after the commencement of section 160 of the
“1388. If, immediately before the commencement of section 171 of the
“1389.(1) Subsections (2) and (3) of this section apply where:
(a) it is alleged or suspected that a person has contravened:
(i) subsection 232(2), (4), (5) or (6); or
(ii) subsection 234(5); or
(iii) subsection 318(1);
before the commencement of Part 9.4B; and
(b) the person consents in writing to that Part applying in relation to the contravention.
“(2) The provisions of Part 9.4B (except sections 1317FA, 1317HA, 1317HB, 1317HD and 1317HF) apply in relation to the contravention as if they had been in force when it was committed.
“(3) In the case of a contravention of subsection 232(2), (4), (5) or (6):
(a) the provisions of sections 1317HA and 1317HD and subsection 1317HF(1) apply in relation to the contravention as if they had been in force when it was committed; and
(b) despite subsection 1375(2), subsection 232(8) does not apply in relation to the contravention.
“(4) Sections 1317DB, 1317DC and 1317DD have effect for the purposes of this section as if this section were in Part 9.4B.
“(5) Except as provided in paragraph (3)(b), this section does not affect the operation of section 1375 or 1378.”.
SCHEDULE 1 Section 123AMENDMENTS OF THE CORPORATIONS LAW CONSEQUENT ON PART 4 OF THIS ACT
Omit the paragraph, substitute:
“(e) as an administrator of a body corporate; or
(ea) as an administrator of a deed of company arrangement executed by a body corporate;”.
Omit the paragraph, substitute:
“(f) as an administrator of a body corporate; or
(fa) as an administrator of a deed of company arrangement executed by a body corporate; or”.
Omit the paragraph, substitute:
“(d) an administrator of the company is appointed under section 436A, 436B or 436C”.
Omit the paragraph, substitute:
“(a) on a particular day:
(i) a court orders that a company be wound up; or
(ii) a company resolves that it be wound up; or
(iii) a company is placed under official management; or
(iv) an administrator of a company is appointed under section 436A, 436B or 436C; and”.
Omit the subparagraphs, substitute:
“(i) if subparagraph (a)(i) or (ii) applies—the day when the winding up is taken to have begun; or
(ia) if subparagraph (a)(iii) applies—the day when the official management began; or
(ib) if subparagraph (a)(iv) applies—the section 513C day in relation to the administration; or
(ii) if the company was insolvent throughout a period ending immediately before the day referred to in subparagraph (i), (ia) or (ib), as the case requires—the day when the company last ceased, before the day so referred to, to be solvent;”.
Omit “that”, substitute “those”.
Omit the paragraph, substitute:
“(c) the company is under administration; or
(ca) a deed of company arrangement executed by the company has not yet terminated; or”.
Omit “section 553 or 554”, substitute “Subdivision A, B or C of Division 6 of Part 5.6”.
Omit the paragraph, substitute:
“(a) a liquidator or provisional liquidator of the body corporate;
(u) an administrator of the body corporate;
(v) an administrator of a deed of company arrangement executed by the body corporate;”.
Omit the paragraph, substitute:
“(c) an administrator of the company;
(ca) an administrator of a deed of company arrangement executed by the company;”.
Omit the paragraphs, substitute in each case:
“(b) an administrator of a company is appointed under section 436A, 436B or 436C; or
(ba) a company executes a deed of company arrangement;”.
Omit “or official manager,”, substitute “, the administrator of the company, or the deed’s administrator,”.
Omit “commencement of the winding up or the appointment of the official manager, as the case may be;”, substitute “critical day;”.
Omit “commencement of the winding up or at the time of the appointment referred to in paragraph (b)”, substitute “start of the critical day”.
Omit “commencement of the winding up or at the time of the appointment of the official manager”, substitute “start of the critical day”.
Omit “official manager of the company, notwithstanding that”, substitute “administrator of the company, or an administrator of a deed of company arrangement executed by the company, even if ”.
Add at the end “or”.
Omit the paragraph, substitute:
“(c) an administrator of the company being appointed under section 436A, 436B or 436C; or
(d) the company executing a deed of company arrangement.”.
Omit “and (c)”, substitute “, (c) and (d)”.
Add at the end:
“(8) In this section:
(a) if the company is being wound up—the day when the winding up began; or
(b) if the company is under administration—the section 513C day in relation to the administration; or
(c) if the company has executed a deed of company arrangement— the section 513C day in relation to the administration that ended when the deed was executed.”.
Omit “commencement of the winding up”, substitute “passing of the resolution”.
Omit “a company after the commencement of a creditors’ voluntary winding up”, substitute “the company after the passing of the resolution for voluntary winding up”.
Omit “commencement of a creditors’ voluntary winding up of a company,”, substitute “passing of the resolution for voluntary winding up,”.
Omit “$1000”, substitute “the statutory minimum”.
Omit the paragraph, substitute:
“(c) that has been or is under administration;
(ca) that has executed a deed of company arrangement, even if the deed has terminated;”.
Omit “official management,”, substitute “administration, having executed a deed of company arrangement,”.
Omit the paragraph, substitute:
“(k) an administrator of the target company, or of a subsidiary, being appointed under section 436A, 436B or 436C;
(l) the target company or a subsidiary executing a deed of company arrangement; or”.
Omit the paragraphs, substitute in each case:
“(b) if the company is being wound up or is under administration— be signed by the liquidator or administrator, as the case may be; or
(c) if the company has executed a deed of company arrangement that has not yet terminated—be signed by the deed’s administrator.”.
Omit the paragraph, substitute:
“(a) an administrator of that body corporate, or, if there are 2 or more bodies corporate, of either or any of them, is appointed under section 436A, 436B or 436C;”.
Omit “body corporate was placed under official management,”, substitute “administrator was so appointed,”.
Omit everything before subparagraph (i), substitute:
“(a) unless paragraph (b) applies—in relation to each director of the target company:”.
Omit the paragraph, substitute:
“(b) if the target company is being wound up, is under administration, or has executed a deed of company arrangement that has not yet terminated—in relation to each liquidator, each administrator of the company, or each administrator of the deed, as the case may be:
(i) if he or she wants to make, and thinks himself or herself justified in making, a recommendation in relation to the offers—whether he or she recommends the acceptance of offers made or to be made by the offerer or recommends against acceptance, and why he or she so recommends; or
(ii) otherwise—that he or she does not want to make, or does not think himself or herself justified in making, a recommendation, and why not.”.
Omit the paragraph, substitute:
“(b) in the case of a Part B statement that is signed as mentioned in paragraph 647(2)(b) or (c)—any liquidator or administrator of the company, or any administrator of the deed of company arrangement, as the case may be;”.
Omit the paragraph, substitute:
“(b) if the target company is being wound up, is under administration, or has executed a deed of company arrangement that has not yet terminated—in relation to each liquidator, each administrator of the company, or each administrator of the deed, as the case may be:
(i) if he or she wants to make, and thinks himself or herself justified in making, a recommendation in relation to the offers—whether he or she recommends the acceptance of offers under the takeover announcement or recommends against acceptance, and why he or she so recommends; or
(ii) otherwise—that he or she does not want to make, or
does not think himself or herself justified in making, a recommendation, and why not.”.
Omit the paragraph, substitute:
“(b) in the case of a Part D statement that is signed as mentioned in paragraph 683(2)(b) or (c)—any liquidator or administrator of the company, or any administrator of the deed of company arrangement, as the case may be;”.
Insert:
“(aa) an administrator of the body corporate is appointed under section 436A, 436B or 436C;”.
Omit “, comes under official management”.
After “creditors” insert “or a class of them”.
Omit the paragraph, substitute:
“(a) it is under administration or being wound up; or”.
Omit the paragraph, substitute:
“(c) an administrator of the body corporate;
(ca) an administrator of a deed of company arrangement executed by the body corporate;”.
After “422,” insert “438D,”.
Omit the paragraph, substitute:
“(f) a decision to apply under section 596A or 596B for the Court to summon a person for examination about a corporation’s examinable affairs; or
(g) a decision to apply under section 597A for the Court to require a person to file an affidavit about a corporation’s examinable affairs.”.
“(c) an administrator of the corporation;
(ca) an administrator of a deed of company arrangement executed by the corporation;”.
Omit the paragraph, substitute:
“(c) an administrator of a company;
(ca) an administrator of a deed of company arrangement executed by a company; or”.
SCHEDULE 2 Section 125
AMENDMENTS OF ACTS CONSEQUENT ON PART 4 OF THIS ACT
Add at the end “or”.
Omit the subparagraph, substitute:
“(v) an administrator of the holder of the licence is appointed under section 436A, 436B or 436C of the Corporations Law; or
(vi) the holder of the licence executes a deed of company arrangement under Part 5.3A of that Law;”.
After paragraph (b) insert:
“(ba) an administrator, within the meaning of the Corporations Law, of the corporation;
(bb) an administrator of a deed of company arrangement executed by the corporation under Part 5.3A of that Law;”.
Insert:
“(ia) the company is under administration within the meaning of the Corporations Law;
(ib) a deed of company arrangement that the company executed under Part 5.3A of that Law has not yet terminated;”.
After “receiver and manager,” insert “of an administrator (within the meaning of that Law) of the company, of an administrator of such a deed,”.
Add at the end “or”.
After paragraph (e) insert:
“(ea) an administrator, within the meaning of the Corporations Law, of a company; or
(eb) an administrator of a deed of company arrangement executed
by a company under Part 5.3A of that Law; or”.
Insert:
“(ca) whether the company is under administration within the meaning of the Corporations Law;
(cb) whether the company has executed under Part 5.3A of that Law a deed of company arrangement that has not yet terminated;”.
Omit the paragraph, substitute:
“(ba) in the case of a licence held by a company—any of the following events occurs:
(i) the company is convicted of an offence of a kind referred to in paragraph 81 (3)(a) or (b);
(ii) a receiver of the property, or part of the property, of the company is appointed;
(iii) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Law;
(iv) the company executes a deed of company arrangement under Part 5.3A of that Law;
(v) the company begins to be wound up;”.
Insert:
“(ca) whether the company is under administration within the meaning of the Corporations Law;
(cb) whether the company has executed under Part 5.3A of that Law a deed of company arrangement that has not yet terminated;”.
Omit the paragraph, substitute:
“(c) in the case of a licence held by a company:
(i) a receiver of the property, or part of the property, of the company is appointed; or
(ii) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Law; or
(iii) the company executes a deed of company arrangement under Part 5.3A of that Law; or
(iv) the company begins to be wound up;”.
Add at the end “or”.
After paragraph (e) insert:
“(ea) an administrator, within the meaning of the Corporations Law, of a company; or
(eb) an administrator of a deed of company arrangement executed by a company under Part 5.3A of that Law; or”.
Omit everything after paragraph (d), substitute:
‘but does not include:
(e) a receiver, or a receiver and manager, of property of the body; or
(f) an administrator, within the meaning of the Corporations Law, of the body; or
(g) an administrator of a deed of company arrangement executed by the body under Part 5.3A of that Law; or
(h) an official manager or deputy official manager of the body; or
(i) a liquidator or provisional liquidator of the body.”.
Omit the definition, substitute:
“
(a) that has entered into a compromise or arrangement with its creditors, or a class of them, the administration of which has not ended; or
(b) in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; or
(c) that is under administration within the meaning of the Corporations Law; or
(d) that has executed under Part 5.3A of that Law a deed of company arrangement that has not yet terminated; or
(e) that is under official management; or
(f) that is being wound up; or
(g) in respect of which a provisional liquidator has been appointed and not since removed;”.
Insert:
“(iii) an administrator, within the meaning of the Corporations Law, of the institution; and
(iv) an administrator of a deed of company arrangement executed by the institution under Part 5.3A of that Law; and”.
Insert:
“; or (C) an administrator, within the meaning of the Corporations Law, of that person; or
(D) an administrator of a deed of company arrangement executed by that person under Part 5.3A of that Law.”.
Add at the end “or”.
After paragraph (e) insert:
“(ea) an administrator, within the meaning of the Corporations Law, of a company; or
(eb) an administrator of a deed of company arrangement executed by a company under Part 5.3A of that Law; or”.
After paragraph (e) insert:
“(ea) an administrator, within the meaning of the Corporations Law, of a company;
(eb) an administrator of a deed of company arrangement executed by a company under Part 5.3A of that Law; or”.
Insert:
“(ba) an administrator, within the meaning of the Corporations Law, of the corporation;
(bb) an administrator of a deed of company arrangement executed by the corporation under Part 5.3A of that Law;”.
After paragraph (e) insert:
“(ea) an administrator, within the meaning of the Corporations
Law, of a company; and
(eb) an administrator of a deed of company arrangement executed by a company under Part 5.3A of that Law; and”.
1. No. 109, 1989, as amended. For previous amendments, see No. 110, 1990; Nos.110, 200 and 201, 1991; and No. 27, 1992.
2. No. 90, 1989, as amended. For previous amendments, see Nos. 41 and 110, 1990; Nos. 110, 122 and 188, 1991; and No. 27, 1992.
3. No. 33, 1966, as amended. For previous amendments, see No. 121, 1968; No. 40, 1969; No. 122, 1970; No. 216, 1973; No. 56, 1975; Nos. 37, 91 and 161, 1976; No. 111, 1977, No. 155, 1979; Nos. 12 and 70, 1980; Nos. 74 and 176, 1981; No. 18, 1983; Nos. 10 and 63, 1984; Nos. 21 and 193, 1985; Nos. 154 and 168, 1986; Nos. 73 and 119, 1987; Nos. 8, 38 and 99, 1988; No. 129, 1989; No. 115, 1990; and No. 9, 1992.
NOTES ABOUT SECTION HEADINGS
1. On the commencement of section 37 of this Act, the heading to section 419 of the Corporations Law set out in section 82 of the
Corporations Act 1989 is altered by omitting “receiver ” and substituting “controller ”.2. On the commencement of section 123 of this Act, the heading to section 266 of the Corporations Law set out in section 82 of the
Corporations Act 1989 is altered by omitting “official manager ” and substituting “administrator ”.3. On the commencement of section 169 of this Act, the heading to section 1112 of the Corporations Law set out in section 82 of the
Corporations Act 1989 is omitted and the following heading is substituted:“Offences: stamping of broker’s stamp on sufficient transfer” .
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House of Representatives on 3 November 1992
Senate on 12 November 1992
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