| C2004C04255 | FUTURES INDUSTRY ACT 1986
(#DATE 31:08:1994)
Compilation Information
[Note: This Act is repealed by Act No. 55 of 2001]
This compilation was prepared on 19 July 2001
taking into account amendments up to Act No. 55 of 2001
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
- Reprinted as at 31 August 1994
FUTURES INDUSTRY ACT 1986 - LONG TITLE
SECT
An Act relating to the futures industry in the Australian
Capital Territory
FUTURES INDUSTRY ACT 1986 - PART I
PART I - PRELIMINARY
FUTURES INDUSTRY ACT 1986 - SECT 1
Short title
SECT
1. This Act may be cited as the Futures Industry Act 1986.
FUTURES INDUSTRY ACT 1986 - SECT 2
Commencement
SECT
2. This Act shall come into operation on a day to be fixed by
Proclamation.
FUTURES INDUSTRY ACT 1986 - SECT 3
Object
SECT
3. (1) The object of this Act is to regulate the futures industry in the
Australian Capital Territory and this Act has effect, and shall be construed,
accordingly.
(2) The Companies and Securities (Interpretation and Miscellaneous
Provisions) Act 1980 applies to this Act.
FUTURES INDUSTRY ACT 1986 - PART IA
PART IA - INTERPRETATION
FUTURES INDUSTRY ACT 1986 - SECT 3A
Effect of this Part
SECT
3A. The provisions of this Part have effect for the purposes of this Act,
except so far as the contrary intention appears in this Act.
FUTURES INDUSTRY ACT 1986 - SECT 4
Interpretation
SECT
4. (1) In this Act, unless the contrary intention appears:
"accounting records" includes invoices, receipts, orders for the payment of
money, bills of exchange, cheques, promissory notes, vouchers and other
documents of prime entry and also includes such working papers and other
documents as are necessary to explain the methods and calculations by which
accounts are made up;
"acquire", in relation to a futures contract, means:
(a) except in the case of a futures option or of a prescribed
exchange-traded option - enter into, or take an assignment of, the futures
contract; or
(b) in the case of a futures option or of a prescribed exchange-traded
option - take, or take an assignment of, the futures option or prescribed
exchange-traded option;
whether or not on behalf of another person;
"adjustment agreement" means a standardised agreement the effect of which is
that:
(a) a particular person will either be under an obligation to pay, or will
have a right to receive, an amount of money;
(b) whether the person will be under an obligation to pay, or will have a
right to receive, the amount of money will depend on a particular state of
affairs existing at a particular future time, including, without limiting the
generality of the foregoing, a state of affairs that relates to fluctuations
in the value or price of a commodity or other property, or in an index or
other factor; and
(c) the amount of money will be calculated in a particular manner by
reference to that state of affairs;
whether or not the agreement has any other effect or is capable of being
varied or discharged before that future time;
"amount" includes a nil amount;
"assets", in relation to the holder of a futures broker's licence, means all
the assets of the holder, whether or not used in connection with a business of
dealing in futures contracts;
"Australian company law" means the Companies Act 1981 or the provisions of:
(a) a previous law of the Territory; or
(b) a law, or a previous law, of a State or of another Territory;
that correspond with that Act;
"banker's books" means:
(a) books of a banking corporation, including any documents used in the
ordinary business of a banking corporation;
(b) cheques, orders for the payment of money, bills of exchange and
promissory notes in the possession or under the control of a banking
corporation; and
(c) documents that create or evidence futures contracts and are in the
possession, or under the control, of a banking corporation;
"banking corporation" means:
(a) a bank as defined in section 5 of the Banking Act 1959; or
(b) a bank constituted under a law of a State or Territory;
"banning order" means an order made under section 80G and in force under
Division 5 of Part IV;
"Board", in relation to a body corporate, means the board of directors,
committee of management, council or other governing body of the body
corporate;
"books" includes any register or other record of information and any
accounts or accounting records, however compiled, recorded or stored and also
includes any document;
"bought position" means:
(a) in relation to a commodity agreement, or in relation to a futures
contract, being a commodity agreement - the position of a person who, by
virtue of the agreement, is under an obligation to accept delivery in
accordance with the agreement; or
(b) in relation to a futures contract, being an adjustment agreement - the
position of a person who, by virtue of the agreement:
(i) will, if the value or worth of the agreement (as
determined in accordance with the agreement) as at a particular future time is
less by a particular amount than the value or worth of the agreement (as so
determined) as at a particular earlier time, be under an obligation to pay
that amount; and
(ii) will, if the value or worth of the agreement (as so
determined) as at a particular future time exceeds by a particular amount the
value or worth of the agreement (as so determined) as at a particular earlier
time, have a right to receive that amount;
"broker" means futures broker;
"business day" means a day that is not a Saturday, a Sunday or a public
holiday or bank holiday in the Territory;
"business rules", in relation to a body corporate, means:
(a) in the case of a body corporate that provides, or proposes to provide,
clearing house facilities for a futures market - rules, regulations and
by-laws governing:
(i) the activities and conduct of the body corporate and
its members; and
(ii) the activities and conduct of other persons in relation
to the provision by the body corporate of clearing house facilities for a
futures market;
being rules, regulations and by-laws made by the body corporate or contained
in its constituent documents;
(b) in the case of a body corporate that operates, or proposes to operate,
as a futures association - rules, regulations and by-laws governing the
activities and conduct of the body corporate and its members in relation to
the operation of the body corporate as a futures association, being rules,
regulations and by-laws made by the body corporate or contained in its
constituent documents; or
(c) in the case of a body corporate that maintains or provides, or proposes
to maintain or provide, a futures market - rules, regulations and by-laws
governing:
(i) the activities and conduct of the body corporate and
its members;
(ii) the activities and conduct of each clearing house for
the body corporate; and
(iii) the activities and conduct of other persons in relation
to each futures market maintained or provided by the body corporate;
being rules, regulations and by-laws made by the body corporate or contained
in its constituent documents;
"clearing house", except in Division 1 of Part II, means:
(a) in relation to a body corporate:
(i) in any case - a person who provides, or proposes to
provide, clearing house facilities for a futures market maintained or provided
by that body corporate; or
(ii) in the case of a futures exchange - a body corporate
in relation to which an approval as a clearing house for that futures exchange
is in force under subsection 48 (1); and
(b) in relation to a futures market:
(i) in any case - a person who provides, or proposes to
provide, clearing house facilities for that futures market; or
(ii) in the case of a futures market of a futures exchange - a body
corporate in relation to which an approval as a clearing house for that
futures exchange is in force under subsection 48 (1);
"clearing house facilities", in relation to a futures market, means
facilities for the registration of futures contracts made on that futures
market;
"client", in relation to a futures broker, means a person on behalf of whom
the broker deals, or from whom the broker accepts instructions to deal, in
futures contracts;
"close out", in relation to a futures contract, means:
(a) discharge the obligations of the person in the bought position, or sold
position, under the futures contract as a result of the matching up of the
futures contract with a futures contract of the same kind under which the
person has assumed an offsetting sold position, or offsetting bought position,
as the case may be; or
(b) otherwise discharge the obligations of a party to the futures contract;
"commodity" means:
(a) any thing that is capable of delivery pursuant to an agreement for its
delivery; or
(b) without limiting the generality of paragraph (a), an instrument creating
or evidencing a thing in action;
"commodity agreement" means a standardised agreement the effect of which is
that:
(a) a person is under an obligation to make delivery; or
(b) a person is under an obligation to accept delivery;
at a particular future time of a particular quantity of a particular commodity
for a particular price or for a price to be calculated in a particular manner,
whether or not:
(c) the subject matter of the agreement is in existence;
(d) the agreement has any other effect; or
(e) the agreement is capable of being varied or discharged before that
future time;
"condition", in relation to a licence, means a condition or
restriction to which the licence is subject, or will be subject, as the case
requires;
"director", in relation to a body corporate, includes:
(a) any person occupying or acting in the position of director of the body
corporate, by whatever name called, and whether or not validly appointed to
occupy, or duly authorised to act in, the position;
(b) any person in accordance with whose directions or instructions the
directors of the body corporate are accustomed to act;
and
(c) in the case of a body corporate incorporated or formed outside the
Territory:
(i) a member of the committee of management, council
or other governing body of the body corporate;
(ii) any person occupying or acting in the position of
member of the committee of management, council or other governing body of the
body corporate, by whatever name called and whether or not validly appointed
to occupy or duly authorised to act in the position; and
(iii) any person in accordance with whose instructions the
members of the committee of management, council or other governing body of the
body corporate are accustomed to act;
"dispose of", in relation to a futures contract, means:
(a) except in the case of a futures option or of a prescribed
exchange-traded option - take, or cause to be taken, such action as closes out
the futures contract; or
(b) in the case of a futures option or of a prescribed exchange-traded
option:
(i) grant, assign or exercise the futures option or prescribed
exchange-traded option;
(ii) take, or cause to be taken, such action as releases the
futures option or prescribed exchange-traded option;
or
(iii) allow the futures option or prescribed exchange-traded
option to lapse;
whether or not on behalf of another person;
"eligible commodity agreement" means a commodity agreement (in this
definition referred to as the "relevant agreement"), where, at the time when
the relevant agreement:
(a) unless paragraph (b) applies - is entered into; or
(b) if the relevant agreement is not a commodity agreement at the time when
it is entered into - becomes a commodity agreement;
it appears likely, having regard to all relevant circumstances (other than the
respective intentions of the person in the sold position, and the person in
the bought position, under the relevant agreement), including, without
limiting the generality of the foregoing:
(c) the provisions of any agreement;
(d) the rules and practices of any market; and
(e) the manner in which the respective obligations of persons in sold
positions, and persons in bought positions, under agreements of the same kind
as the first-mentioned agreement are generally discharged;
that:
(f) the obligation of the person in the sold position under the relevant
agreement to make delivery in accordance with the relevant agreement will be
discharged otherwise than by the person so making delivery;
(g) the obligation of the person in the bought position under the relevant
agreement to accept delivery in accordance with the relevant agreement will be
discharged otherwise than by the person so accepting delivery; or
(h) the person in the sold position, or bought position, under the relevant
agreement will assume an offsetting bought position, or offsetting sold
position, as the case may be, under an agreement of the same kind as the
relevant agreement;
"eligible money market dealer" means a body corporate in respect of which a
declaration is in force under paragraph 97 (7) (b) of the Companies Act 1981;
"event" includes any happening, circumstance or state of affairs;
"exchange member", in relation to a futures exchange, means:
(a) a person who is a member of the futures exchange;
(b) a partnership that is a member of the futures exchange; or
(c) a member of such a partnership;
"executive officer", in relation to a body corporate, means any person, by
whatever name called, and whether or not a director of the body corporate, who
is concerned in, or takes part in, the management of the body corporate;
"exempt broker" means a person who is an exempt broker by virtue of section
10;
"exempt futures adviser" means a person who is an exempt futures adviser by
virtue of section 10;
"exempt futures market" means a futures market in relation to which, or a
futures market included in a class of futures markets, being a class in
relation to which, a declaration under subsection 45 (2) is in force;
"exempt public authority" means a body corporate that is incorporated within
Australia and is a public authority or an instrumentality or agency of the
Crown in right of the Commonwealth or of a State or Territory;
"externally-administered body corporate" means a body corporate:
(a) that is being wound up under an Australian company law;
(b) in respect of property of which a receiver, or a receiver and manager,
has been appointed under an Australian company law (whether or not by a court)
and is acting;
(c) that is under official management under an Australian company law; or
(d) that has, whether in the Territory or elsewhere, entered into a
compromise or arrangement with its creditors that is still in operation;
"function" includes a duty;
"futures advice business" has the meaning given by section 10A;
"futures adviser" means a person who carries on, or 2 or more persons who
together carry on, a futures advice business;
"futures adviser's licence" means a futures adviser's licence granted under
Part IV;
"futures association" means a body corporate that is approved by the
Ministerial Council under section 50;
"futures broker" means:
(a) a person who carries on, or 2 or more persons who together carry on, a
futures broking business, whether or not the person, or any of the persons,
also deals in futures contracts on the person's own account; or
(b) a person who holds a futures broker's licence under Part IV or the
provisions of a law of a participating State or participating Territory that
correspond with Part IV;
"futures broker's licence" means a futures broker's licence granted under
Part IV;
"futures broking business", in relation to a person, means, subject to
subsection 7 (4), a business of dealing in futures contracts on behalf of
other persons;
"futures contract" means:
(a) an agreement that is, or has at any time been, an eligible commodity
agreement or an adjustment agreement;
(b) a futures option; or
(c) a prescribed exchange-traded option;
but does not include:
(d) an agreement:
(i) that is:
(A) a currency swap;
(B) an interest rate swap;
(C) a forward exchange rate contract; or
(D) a forward interest rate contract; and
(ii) to which a banking corporation or a merchant bank is a party; or
(e) an agreement that, at the time when it is entered into, is included in a
class of agreements prescribed for the purposes of this paragraph;
"futures exchange" means a body corporate that is approved by the
Ministerial Council under section 46;
"futures law" means a provision of this Act or a provision of a
corresponding law of a participating State or participating Territory;
"futures market" means a market, exchange or other place at which, or a
facility by means of which, futures contracts are regularly made;
"futures option" means an option or right to assume, at a specified price or
value and within a specified period, a bought position, or a sold position, in
relation to an eligible commodity agreement or in relation to an adjustment
agreement;
"futures report" means an analysis or report about futures contracts;
"have", in relation to information, includes be in possession of the
information;
"hold", in relation to a person, in relation to a document that is, or
purports to be, a copy of a licence, means have in the person's possession;
"information service" means:
(a) a broadcasting service;
(b) an interactive or broadcast videotext or teletext service or a similar
service;
(c) an online database service or a similar service; or
(d) any other prescribed service;
"insolvent under administration" means a person who:
(a) under the Bankruptcy Act 1966 or the law of an external Territory, is a
bankrupt under a bankruptcy from which he has not been discharged; or
(b) under the law of a country other than Australia or the law of an
external Territory, has the status of an undischarged bankrupt;
and includes:
(c) a person who has executed a deed of arrangement under Part X of the
Bankruptcy Act 1966 or the corresponding provisions of the law of an external
Territory or of the law of a country other than Australia where the terms of
the deed have not been fully complied with; and
(d) a person whose creditors have accepted a composition under Part X of the
Bankruptcy Act 1966 or the corresponding provisions of the law of an external
Territory or of the law of a country other than Australia where a final
payment has not been made under that composition;
"invalid authority" has the meaning given by section 10B;
"licence" means a futures broker's licence or a futures adviser's licence;
"licensee" means a person who holds a licence and, in relation to a licence,
means the person who holds the last-mentioned licence;
"liquidating trade" means a transaction whereby, for the purpose of closing
out a futures contract, the person in the bought position, or sold position,
under the futures contract assumes an offsetting sold position, or offsetting
bought position, as the case may be, under another futures contract;
"liquidator" includes a provisional liquidator;
"local recognised futures exchange" means a body corporate that:
(a) is a futures exchange for the purposes of a corresponding law of a
participating State or participating Territory; or
(b) is, by virtue of a law of a participating State or participating
Territory, to be deemed to be a futures exchange for the purposes of the
corresponding law of that State or Territory;
"lodge" means lodge with the Commission;
"non-broker" means a person who is neither a futures broker nor one of 2 or
more persons who together constitute a futures broker;
"obligation" includes an obligation enforceable neither at law nor in
equity;
"officer, in relation to a body corporate, includes:
(a) a director, secretary, executive officer or employee of the body
corporate;
(b) a receiver and manager of property of the body corporate appointed under
a power contained in an instrument;
(c) an official manager or deputy official manager of the body corporate;
(d) a liquidator of the body corporate appointed in a voluntary winding up
of the body corporate; and
(e) a trustee or other person administering a compromise or
arrangement made between the body corporate and another person or other
persons;
but does not include:
(f) a receiver who is not also a manager;
(g) a receiver and manager appointed by a court; or
(h) a liquidator appointed by a court;
"on, in relation to a futures market, means at or by means of;
"on behalf of" includes on the instructions of;
"prescribed exchange-traded option" means a contract entered into on a
futures market of a futures exchange or of a local recognised futures
exchange, being a contract under which a party to the contract acquires from
another party to the contract an option or right, exercisable at or before a
specified time:
(a) to purchase from, or to sell to, that other party a specified quantity
of a specified commodity at a price specified in, or to be determined in
accordance with, the contract; or
(b) to be paid by that other party an amount of money to be determined by
reference to the amount by which a specified number is greater or less than
the number of a specified index, being the Australian Stock Exchanges All
Ordinaries Price Index or a prescribed index, as at the time when the option
or right is exercised;
"price" includes any amount payable for the delivery of a commodity under an
agreement;
"proper authority" has the meaning given by section 10B;
"publish" includes issue;
"recognised banning order" means a banning order within the meaning of a
corresponding law of a participating State or participating Territory;
"recognised futures adviser" means, subject to section 11, a person who is
the holder of a futures adviser's licence under the provisions of a law of a
participating State or participating Territory that correspond with Part IV;
"recognised futures broker" means, subject to section 11, a person who is
the holder of a futures broker's licence under the provisions of a law of a
participating State or participating Territory that correspond with Part IV;
"recognised futures exchange" means:
(a) a local recognised futures exchange; or
(b) a body corporate that:
(i) maintains or provides a futures market elsewhere than
in the Territory, in a participating State or in a participating Terri ory;
and
(ii) is prescribed, or is included in a class of bodies
corporate that is prescribed, for the purposes of this paragraph;
"recognised licence" means, subject to section 11, a licence within the
meaning of a corresponding law of a participating State or participating
Territory;
"recognised licensee" means a recognised futures broker or a recognised
futures adviser and, in relation to a recognised licence, means the person who
holds the recognised licence;
"registered company auditor" has the same meaning as that expression has in
the Companies Act 1981;
"relevant organisation", except in Part VII, means a futures exchange, a
local recognised futures exchange or a futures association;
"representative" has the meaning given by section 11A;
"responsible officer", in relation to a body corporate that applies for a
licence, means an officer of the body who would perform duties in connection
with the holding of the licence;
"right" includes a right enforceable neither at law nor in equity;
"serious fraud" means an offence involving fraud or dishonesty, being an
offence:
(a) against a law of the Commonwealth, of a State or of a Territory, or
against any other law; and
(b) punishable by imprisonment for life or for a period, or maximum period,
of at least 3 months;
"sold position" means:
(a) in relation to a commodity agreement, or in relation to a futures
contract, being a commodity agreement - the position of a person who, by
virtue of the agreement, is under an obligation to make delivery in accordance
with the agreement;
or
(b) in relation to a futures contract, being an adjustment agreement - the
position of a person who, by virtue of the agreement:
(i) will, if the value or worth of the agreement (as
determined in accordance with the agreement) as at a particular future time
exceeds by a particular amount the value or worth of the agreement (as so
determined) as at a particular earlier time, be under an obligation to pay
that amount; and
(ii) will, if the value or worth of the agreement (as so
determined) as at a particular future time is less by a particular amount than
the value or worth of the agreement (as so determined) as at a particular
earlier time, have a right to receive that amount;
"standardised agreement" means an agreement that is one of 2 or more
agreements each of which is an agreement of the same kind as the other, or as
each of the others, as the case may be;
"suspend" has a meaning affected by subsections 80D (7) and (8);
"trading floor", in relation to a futures market maintained or provided by a
body corporate, or in relation to a body corporate, means a place or facility
maintained or provided by the body corporate for the acquisition or disposal
of futures contracts by members of the body corporate, or by such members and
other persons;
"transmission" means a transmission, by means of electric or electromagnetic
energy, of:
(a) sounds, including speech and music;
(b) visual images;
(c) signals for the communication, whether as between persons and persons,
persons and things or things and things, of any matter otherwise than in the
form of sounds or visual images; or
(d) signals for the actuation or control of machinery or apparatus.
(2) For the purposes of this Act, where a person acquires, or disposes of, a
futures contract on behalf of another person, the other person shall also be
deemed to acquire, or to dispose of, as the case may be, the futures
contract.
(3) Where:
(a) because of instructions given, or any other act done, by a person (in
this subsection referred to as the "relevant person"), the relevant person is,
by virtue of:
(i) an application of subsection (2); or
(ii) an application of subsection (2) and an application, or 2 or more
applications, of this subsection;
to be deemed to acquire, or to dispose of, a futures contract; and
(b) the relevant person gave the instructions, or did that other act, as the
case may be, on behalf of another person;
then, for the purposes of this Act (other than subsection (2) of this
section):
(c) the relevant person shall be deemed to acquire, or to dispose of, as the
case may be, the futures contract on behalf of the other person; and
(d) the other person shall also be deemed to acquire, or to dispose of, as
the case may be, the futures contract.
(4) For the purposes of this Act, a person shall not be regarded as a person
in accordance with whose directions or instructions the directors of a body
corporate are accustomed to act by reason only that the directors act on
advice given by that person in the proper performance of the functions
attaching to the person's professional capacity or to the person's business
relationship with the directors or the body corporate.
(5) For the purposes of subparagraph (d) (ii) of the definition of "futures
contract" in subsection (1), a body corporate is a merchant bank at a
particular time if, and only if, it is at that time a registered corporation
included in:
(a) the category for authorised money market dealers or, if there is at that
time no such category, a prescribed category; or
(b) the category for money market corporations or, if there is at that time
no such category, a prescribed category.
(6) An expression used in subsection (5) of this section and in the
Financial Corporations Act 1974 has the same meaning in that subsection as in
that Act.
(7) For the purposes of this Act (other than this subsection), where an
agreement that was not a futures contract at the time when it was entered into
becomes a futures contract at a later time:
(a) the parties to the agreement shall be deemed to enter into a futures
contract at the later time; and
(b) the agreement shall be deemed to constitute the futures contract
referred to in paragraph (a).
(8) Where there is a reference in this Act to a class of futures contracts,
then, except so far as the contrary intention appears:
(a) nothing in this Act limits the manner in which the class may be
determined; and
(b) the class may be determined according to any factors relevant to futures
contracts.
(9) Except so far as the contrary intention appears, a reference in this Act
to a member, in relation to a body corporate, is, in a case where the body
corporate is, or proposes to become, a futures exchange, a futures
association, or both, and any of the rules, regulations or by-laws made by the
body corporate or contained in its constituent documents provide for:
(a) a separate class of membership for persons to whom the operation of the
body corporate otherwise than as a futures exchange, otherwise than as a
futures association, or otherwise than as a futures exchange or as a futures
association, as the case may be, relates (whether or not such persons may be
members within another class of membership); or
(b) 2 or more such separate classes of membership;
a reference to a person in the person's capacity as a member of the body
corporate within a class of membership other than the class referred to in
paragraph (a), or other than the classes referred to in paragraph (b), as the
case may be.
(10) A reference in this Act to an obligation of a particular kind includes
a reference to alternative obligations one of which is an obligation of that
kind.
(11) For the purposes of this Act, the question whether bodies corporate are
related to each other shall be determined in the same manner as the question
whether corporations within the meaning of the Companies Act 1981 are related
to each other would be determined under that Act.
FUTURES INDUSTRY ACT 1986 - SECT 5
Agreements
SECT
5. (1) In this Act, unless the contrary intention appears, "agreement" means
any agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal;
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based
on legal or equitable rights.
(2) Except so far as the contrary intention appears:
(a) a reference in this Act to an agreement includes a reference to:
(i) a proposed agreement;
(ii) an agreement as varied, or as proposed to be varied;
(iii) in a case where an agreement has been varied - the agreement
as in force at any time before the variation; or
(iv) in a case where an agreement has been discharged - the
agreement as in force at any time before its discharge; and
(b) a reference in this Act to a party to an agreement is, in the case of a
proposed or discharged agreement, a reference to a person who would be a party
to the agreement if the agreement were in effect.
(3) For the purposes of this Act, an agreement is of the same kind as
another agrement if, and only if, the provisions of the first-mentioned
agreement are the same as, or not materially different from, the provisions of
the other agreement, disregarding:
(a) the fact that the parties to the respective agreements are different;
and
(b) any differences in the amounts payable under corresponding provisions of
the respective agreements.
FUTURES INDUSTRY ACT 1986 - SECT 6
Associated persons
SECT
6. (1) A reference in this Act to a person associated with another person is
a reference to:
(a) if the other person is a body corporate:
(i) a director or secretary of the body corporate;
(ii) a body corporate that is related to that other person; or
(iii) a director or secretary of such a related body corporate;
(b) a person in concert with whom the other person is acting, or proposes to
act, in relation to the matter to which the reference relates;
(c) a person who carries on a business of dealing in futures contracts in
partnership with the other person;
(d) subject to subsection (2), a person who is a partner of the other person
otherwise than by reason that the first-mentioned person carries on a business
of dealing in futures contracts in partnership with the other person;
(e) a trustee of a trust in relation to which the other person benefits or
is capable of benefiting otherwise than by reason of transactions entered into
in the ordinary course of business in connection with the lending of money;
(f) a person who is a director of a body corporate that carries on a
business of dealing in futures contracts and of which the other person is also
a director;
(g) subject to subsection (2), a person who is a director of a body
corporate of which the other person is a director, not being a body corporate
that carries on a business of dealing in futures contracts;
(h) a person with whom the other person is, by virtue of the regulations, to
be regarded as associated in respect of the matter to which the reference
relates;
(j) a person with whom the other person is, or proposes to become,
associated, whether formally or informally, in any other way in respect of the
matter to which the reference relates; or
(k) if the other person has entered into, or proposes to enter into, a
transaction, or has done, or proposes to do, any other act or thing, with a
view to becoming associated with a person as mentioned in any of the preceding
paragraphs - that last-mentioned person.
(2) Where, in proceedings under this Act, it is alleged that a person
referred to in paragraph (1) (d) or (g) was associated with another person at
a particular time, that person shall be deemed not to have been so associated
in relation to a matter to which the proceedings relate unless the person
alleging the association proves that the first-mentioned person at that time
knew or ought reasonably to have known the material particulars of that
matter.
(3) For the purposes of this Act, where 2 or more persons constitute a
futures broker or futures adviser, a person is associated with the futures
broker or with the futures adviser, as the case may be, if the person is
associated with either or any of those persons.
(4) A person shall not be taken to be associated with another person by
virtue of paragraph (1) (b), (h) or (j) by reason only that one of those
persons furnishes advice to, or acts on behalf of, the other person, in the
proper performance of the functions attaching to the person's professional
capacity or to the person's business relationship with the other person.
FUTURES INDUSTRY ACT 1986 - SECT 6A
Businesses of a particular kind
SECT
6A. A reference to a business of a particular kind includes a reference to a
business of that kind that is part of, or is carried on in conjunction with,
any other business.
FUTURES INDUSTRY ACT 1986 - SECT 6B
Carrying on a business: alone or together with others
SECT
6B. A reference to a person carrying on a business, or a business of a
particular kind, is a reference to the person carrying on a business, or a
business of that kind, whether alone or together with any other person or
persons.
FUTURES INDUSTRY ACT 1986 - SECT 7
Dealing in futures contracts
SECT
7. (1) Subject to subsection (2), a person shall be taken, for the purposes
of this Act, to deal in a futures contract if, and only if, the person:
(a) acquires, or disposes of, the futures contract;
(b) offers to acquire, or to dispose of, the futures contract; or
(c) induces, or attempts to induce, another person to acquire, or to dispose
of, the futures contract.
(2) A person shall be taken, for the purposes of this Act, to deal in a
futures contract on behalf of another person if, and only if, the
first-mentioned person acquires, or disposes of, the futures contract on
behalf of the other person, or offers so to acquire, or so to dispose of, the
futures contract.
(3) In determining for the purposes of this Act whether a person who is not
a resident of Australia or of an external Territory deals in a futures
contract on behalf of another person, regard shall not be had to an act done
on behalf of the first-mentioned person by the holder of a futures broker's
licence, by an exempt broker or by a recognised futures broker.
(4) Subsection (5) has effect for the purposes of determining:
(a) whether or not a person deals in a futures contract on another person's
behalf;
(b) whether or not a person carries on, or holds himself, herself or itself
out as carrying on, a futures broking business; and
(c) what constitutes such a business carried on by the person.
(5) An act that the person does:
(a) while employed by, or acting for or by arrangement with, a futures
broker;
(b) as employee or agent of, or otherwise on behalf of, on account of, or
for the benefit of, the broker; and
(c) in connection with a business of dealing in futures contracts that the
broker carries on;
shall be disregarded.
(6) Subsections (3), (4) and (5) do not have effect for the purposes of
sections 46 and 50.
FUTURES INDUSTRY ACT 1986 - SECT 8
Dealings and transactions on a person's own account
SECT
8. (1) For the purposes of this Act:
(a) a reference to a person dealing in a futures contract, or entering into
a transaction, on the person's own account includes a reference to a person
dealing in a futures contract, or entering into a transaction:
(i) on behalf of a person associated with the first-mentioned
person;
(ii) on behalf of a body corporate in which the person has a
controlling interest; or
(iii) where the person carries on business as a futures broker in
partnership - on behalf of a body corporate in which the person's interest and
the interests of the other partners together constitute a controlling
interest; and
(b) a futures broker who is a member of a futures exchange or of a
recognised futures exchange shall not be taken to be dealing in a futures
contract, or entering into a transaction, on the broker's own account by
reason only that the dealing is with, or the transaction is entered into with,
another futures broker who is a member of a futures exchange or of a
recognised futures exchange.
(2) Notwithstanding section 6, a person is not associated with another
person for the purposes of subsection (1) by reason only that the
first-mentioned person is:
(a) a partner of the other person otherwise than because the first-mentioned
person carries on a business of dealing in futures contracts in partnership
with the other person; or
(b) a director of a body corporate of which the other person is also a
director, whether or not the body corporate carries on a business of dealing
in futures contracts.
FUTURES INDUSTRY ACT 1986 - SECT 9
Discretionary accounts
SECT
9. For the purposes of this Act, a reference to operation by a futures
broker on a discretionary account is a reference to dealings by the broker in
futures contracts on instructions of another person that authorise the broker
to deal in futures contracts without the prior approval of that other person,
whether:
(a) the instructions are given by, and the money used for operating on the
account is provided by, one person only; or
(b) the instructions are given by, and the money used for operating on the
account is contributed as a common fund by, each of a number of persons;
not being dealings on instructions that authorise dealings in futures
contracts without the prior approval of that other person only as to the time
when or the price at which the dealings are to be effected, or both.
FUTURES INDUSTRY ACT 1986 - SECT 10
Exempt brokers and exempt futures advisers
SECT
10. (1) A body corporate is both an exempt broker and an exempt futures
adviser if it is:
(a) a prescribed body corporate; or
(b) an exempt public authority in relation to which a declaration is in
force under subsection (2).
(2) The Ministerial Council may by writing declare that paragraph (1) (b)
applies in relation to specified bodies corporate.
(3) The Commission shall cause a copy of an instrument executed under
subsection (2) to be published in the Gazette.
(4) Subject to this section, a person is an exempt broker or an exempt
futures adviser if the person is a futures broker or futures adviser, as the
case may be, but does not carry on a futures broking business or a futures
advice business, as the case may be, except:
(a) as an official receiver or trustee within the meaning of the Bankruptcy
Act 1966;
(b) as a receiver, receiver and manager, or liquidator, appointed by a
court;
(c) as a person appointed by a court to carry on the business concerned;
(d) as a receiver, receiver and manager, or liquidator, appointed otherwise
than by a court;
(e) as an official manager or deputy official manager of a body corporate;
(f) as a trustee or other person administering a compromise or arrangement
between a body corporate and any other person or persons;
(g) as a personal representative of a dead dealer or investment adviser, as
the case maybe; or
(h) in such other capacity, or in such other circumstances, as are
prescribed.
(5) A person who carries on a futures broking business or futures advice
business in a capacity referred to in any of paragraphs (4) (d) to (g),
inclusive, shall be taken for the purposes of subsection (4) to carry on the
business otherwise than in that capacity unless there is in force under
subsection (6) an approval of the person carrying on the business in that
capacity.
(6) The Commission may, on application by a person and after having regard
to:
(a) the prescribed matters (if any); and
(b) such matters as it thinks appropriate;
by writing approve of the person carrying on a specified futures broking
business or futures advice business in a specified capacity, being a capacity
referred to in any of paragraphs (4) (d) to (g), inclusive.
(7) A person is not an exempt broker or an exempt futures adviser except as
provided by this section.
(8) At and after the commencement of section 67 of the Co-operative Scheme
Legislation Amendment Act 1989, a declaration that, immediately before that
commencement, was in force under subsection 10 (2) of this Act as in force
before that commencement has effect as if it were a declaration made at that
commencement under subsection (2) of this section.
FUTURES INDUSTRY ACT 1986 - SECT 10A
Futures advice business
SECT
10A. (1) A reference to a futures advice business, in relation to a person,
is a reference to:
(a) a business of advising other persons about futures contracts; or
(b) a business in the course of which the person publishes futures reports.
(2) The remaining provisions of this section apply for the purposes of
determining:
(a) whether or not a person carries on a futures advice business;
(b) what constitutes a futures advice business carried on by a person;
and
(c) whether or not a person holds himself, herself or itself out to be a
futures adviser.
(3) The fact that the person advises other persons about futures contracts,
or publishes futures reports, in some or all of the following circumstances
shall be disregarded:
(a) in a newspaper or periodical:
(i) of which the person is the proprietor or publisher; and
(ii) that is generally available to the public otherwise than only
on subscription;
(b) in the course of, or by means of, transmissions that:
(i) the person makes by means of an information service; or
(ii) are made by means of an information service that the person
owns, operates or makes available;
and are generally available to the public;
(c) in sound recordings, video recordings, or data recordings, that the
person makes generally available to the public in either or both of the
following ways:
(i) by supplying copies of them to the public;
(ii) by causing the sound recordings to be heard by, the video
recordings to be seen and heard by, or the contents of the data recordings to
be displayed or reproduced for, the public, as the case may be.
(4) Subsection (3) does not apply in relation to a newspaper or periodical,
or transmissions, sound recordings, video recordings or data recordings, whose
sole or principal purpose is to advise other persons about futures contracts
or to publish futures reports.
(5) The fact that the person holds himself, herself or itself out as
advising other persons, or publishing futures reports, as mentioned in
subsection (3) shall be disregarded.
(6) An act that the person does:
(a) while employed by, or acting for or by arrangement with, another
person;
(b) as employee or agent of, or otherwise on behalf of, on account of, or
for the benefit of, the other person; and
(c) in connection with a futures advice business carried on by the other
person;
shall be disregarded.
FUTURES INDUSTRY ACT 1986 - SECT 10B
Proper authority; invalid authority
SECT
10B. (1) A reference, in relation to a person (in this subsection called the
"representative"), to a proper authority from a person (in this subsection
called the "principal") who holds a licence is a reference to a copy of the
licence on which are endorsed:
(a) a statement:
(i) certifying the copy to be a true copy of the licence;
(ii) stating that the representative is employed by, or acts for or by
arrangement with, the principal; and
(iii) signed by the principal; and
(b) in relation to each licensee (if any), other than the principal, of whom
the representative is a representative, a statement that:
(i) sets out the name of the licensee;
(ii) states that the representative is employed by, or acts for or by
arrangement with, the licensee;
(iii) states that the licensee consents to the representative being
employed by, or acting for or by arrangement with, the principal; and
(iv) is signed by the licensee.
(2) A reference, in relation to a person (in this subsection called the
"representative"), to an invalid authority from a person (in this subsection
called the "principal") is a reference to a document:
(a) on which is endorsed a statement:
(i) stating that the representative is employed by, or acts for or by
arrangement with, the principal; and
(ii) signed by the principal; and
(b) that purports to be a copy of a licence and to be a proper authority of
the representative from the principal, but is not in fact such a proper
authority;
whether or not:
(c) the principal is, or has ever been, a licensee; or
(d) the document is in fact a copy of a licence that exists or has ever
existed.
(3) For the purposes of this section, a statement is signed by a person if,
and only if, it is signed:
(a) if the person is a natural person - by the person; or
(b) if the person is a body corporate:
(i) by a director or secretary; or
(ii) by an executive officer who is authorised to sign the statement.
(4) In this section:
"licence" includes a recognised licence;
"licensee" includes a recognised licensee.
FUTURES INDUSTRY ACT 1986 - SECT 11
Recognised licensee must be connected with State or Territory concerned
SECT
11. Where a person holds a futures broker's licence or futures adviser's
licence under the provisions of a law of a participating State or
participating Territory that correspond with Part IV, the person is not a
recognised futures broker or recognised futures adviser, as the case may be,
and the licence is not a recognised licence, unless:
(a) if the person is a natural person who is not a partner in a firm dealing
in futures contracts or carrying on a futures advice business, as the case may
be - the person is ordinarily resident in that State or Territory;
(b) if the person is a natural person who is a partner in such a firm - the
firm's principal place of business is in that State or Territory;
or
(c) if the person is a body corporate - the body:
(i) is incorporated in that State or Territory; or
(ii) is incorporated outside Australia and the external Territories
and is registered under the provisions of a law of that State or Territory
that correspond with Division 5 of Part XIII of the Companies Act 1981.
FUTURES INDUSTRY ACT 1986 - SECT 11A
Representatives
SECT
11A. (1) Subject to subsection (2), a person is a representative of another
person if, and only if, the first-mentioned person is employed by, or cts for
or by arrangement with, the other person in connection with a futures broking
business or futures advice business carried on by the other person.
(2) Except for the purposes of paragraph 10B (1) (b):
(a) a person who holds a proper authority from a licensee or recognised
licensee is a representative of the licensee or recognised licensee; and
(b) a person who holds an invalid authority from another person is a
representative of the other person.
(3) Subject to subsection (4), a person does an act, or engages in conduct,
as a representative of another person if, and only if, the first-mentioned
person does the act, or engages in the conduct:
(a) in connection with a futures broking business or futures advice business
carried on by the other person;
(b) while the first-mentioned person is a representative of the other
person;
(c) as employee or agent of, or otherwise on behalf of, on account of, or
for the benefit of, the other person; and
(d) otherwise than in the course of work of a kind ordinarily done by
accountants, clerks or cashiers.
(4) Except for the purposes of Division 4 of Part IV, a person who holds
himself, herself or itself out to be a representative of another person does
an act as a representative of the other person.
FUTURES INDUSTRY ACT 1986 - PART II
PART II - ADMINISTRATION
FUTURES INDUSTRY ACT 1986 - DIVISION 1
Division 1 - General
FUTURES INDUSTRY ACT 1986 - SECT 12
Interpretation
SECT
12. In this Division:
"books" includes banker's books;
"clearing house" means:
(a) a person who provides clearing house facilities for a futures market;
or
(b) a body corporate in relation to which an approval as a clearing house
for a futures exchange is in force under subsection 48 (1).
FUTURES INDUSTRY ACT 1986 - SECT 13
Power of Commission to require production of books
SECT
13. (1) The powers of the Commission under subsection (3), or the powers of
an authorised person under subsection (4), to make a requirement of a person
shall not be exercised except:
(a) for the purpose of:
(i) the performance of a function, or the exercise of a power, by
the Commission under a relevant Act (other than the exercise of a power of the
Commission under subsection 6 (3) of the National Companies and Securities
Commission Act 1979);
or
(ii) ensuring compliance with the provisions of a relevant Act; or
(b) where the requirement relates to a matter that constitutes or may
constitute:
(i) a contravention of a provision of a relevant Act; or
(ii) an offence relating to futures contracts that involves fraud or
dishonesty.
(2) A reference in subsection (1) to a relevant Act includes a reference to
the provisions of a law of a participating State or participating Territory
that correspond with a relevant Act.
(3) The Commission may, at any time, by notice in writing:
(a) give a direction to:
(i) a futures exchange, a clearing house or a futures association;
(ii) a member of the Board of a futures exchange, a clearing
house or a futures association;
(iii) a person who is or has been (either alone or together with
another person or other persons) a futures broker or a futures adviser or is
or has been a futures broker's representative, a futures adviser's
representative or a member of a futures association;
(iv) a nominee controlled by a person referred to in subparagraph
(iii) or jointly controlled by 2 or more persons at least one of whom is a
person referred to in that subparagraph;
(v) a person who is or has been an officer or employee of, or an
agent, banker, solicitor, auditor or other person acting in any capacity for
or on behalf of, a futures exchange, a clearing house, a member of a futures
association or a person referred to in subparagraph (ii), (iii) or (iv); or
(vi) any other person who, in the opinion of the Commission,
has been a party to any dealing in futures contracts;
requiring the production, to a person authorised by the Commission to receive
them, at such time and place as are specified in the direction, of such books
as are so specified, being books relating to:
(vii) the business or affairs of a futures exchange, a clearing house
or a futures association;
(viii) any dealing in futures contracts;
(ix) any advice concerning futures contracts or the issuing or
publication of a report or analysis concerning futures contracts;
(x) the character or financial position of, or any business carried
on by, a person referred to in subparagraph (iii) or (iv); or
(xi) an audit of, or any report of an auditor concerning, a dealing
in futures contracts or any accounts or records of a futures broker or a
futures adviser; or
(b) give a direction to any person requiring the production, to a person
authorised by the Commission to receive them, at such time and place as are
specified in the direction, of any books relating to matters mentioned in
subparagraph (a) (vii), (viii), (ix), (x) or (xi) that are in the custody or
under the control of the person.
(4) The Commission may from time to time authorise a person, on producing
(if required to do so) such evidence of the person's authority as is
prescribed:
(a) to require by notice in writing a futures exchange, a clearing house, a
futures association or a person referred to in subparagraph (3) (a) (ii),
(iii), (iv), (v) or (vi) to produce to the authorised person forthwith or, if
a time and place at which the books are to be produced are specified in the
notice, at that time and place, such books relating to matters mentioned in
subparagraph (3) (a) (vii), (viii), (ix), (x) or (xi) as are specified by the
authorised person and as are in the custody or under the control of the
futures exchange, clearing house, futures association or person of whom the
requirement is made; or
(b) to require by notice in writing a futures exchange, a clearing house, a
futures association or any other person to produce to the authorised person
forthwith or, if a time and place at which the books are to be produced are
specified in the notice, at that time and place, any books relating to matters
mentioned in subparagraphs (3) (a) (vii), (viii), (ix), (x) and (xi) that are
in the custody or under the control of the futures exchange, clearing house,
futures association or other person.
(5) A reference in subsection (3) to a dealing in futures contracts or to a
business carried on by a person includes a reference to a dealing in futures
contracts by a person as a trustee or to a business carried on by a person as
a trustee, as the case may be.
(6) An authorisation under subsection (4) may be of general application or
may be limited to making requirements of a particular futures exchange,
clearing house, futures association or other person or particular futures
exchanges, clearing houses, futures associations or other persons.
(7) Where the Commission, or a person authorised by the Commission, requires
the production of any books under this section and a person has a lien on the
books, the production of the books does not prejudice the lien.
(8) Where the Commission, or a person authorised by the Commission,
exercises a power under this section to require another person to produce
books:
(a) in a case where the books are produced - the person to whom the books
are produced:
(i) may take possession of the books and make copies of, or take extracts
from, the books;
(ii) may require the other person, or any person who was a
party to the compilation of the books, to make a statement providing any
explanation that the person concerned is able to provide as to a matter
relating to the compilation of the books or as to any matter to which the
books relate;
(iii) may retain possession of the books for such period as is
necessary to enable the books to be inspected, and copies of, or extracts
from, the books to be made or taken, by or on behalf of the Commission; and
(iv) during that period shall permit a person who would be
entitled to inspect any one or more of the books if they were not in the
possession of the person to whom the books were produced to inspect at all
reasonable times such of the books as that person would be so entitled to
inspect; or
(b) in any other case - the Commission or the authorised person may require
the other person:
(i) to state, to the best of the other person's knowledge and
belief, where the books may be found; and
(ii) to identify the person who, to the best of the other person's
knowledge and belief, last had custody of the books and to state, to the best
of the other person's knowledge and belief, where that person may be found.
(9) A person who complies or proposes to comply with a direction given or
purporting to have been given under subsection (3) or a requirement made or
purporting to have been made under subsection (4) is not liable to any
proceedings in respect of that compliance or proposed compliance.
(10) A power conferred by this section to make a requirement of a person
extends, if the person is a body corporate, including a body corporate that is
in the course of being wound up, or was a body corporate, being a body
corporate that has been dissolved, to making that requirement of any person
who is or has been an officer of the body corporate.
(11) In subsection (10), "officer", in relation to a body corporate,
includes:
(a) a director, secretary, executive officer or employee of the body
corporate;
(b) a receiver, or a receiver and manager, of property of the body
corporate;
(c) an official manager or a deputy official manager of the body corporate;
(d) a liquidator or provisional liquidator of the body corporate; or
(e) a trustee or other person administering a compromise or arrangement made
between the body corporate and another person or other persons.
FUTURES INDUSTRY ACT 1986 - SECT 14
Power of magistrate to issue warrant to seize books
SECT
14. (1) If a magistrate is satisfied on information on oath or affirmation
laid by an employee of the Commission, or by another person authorised in
writing by the Commission, that there are reasonable grounds for suspecting
that there are on particular premises in the Territory any books the
production of which has been required by virtue of section 13 or by virtue of
a provision of a law of a participating State or of a participating Territory
that corresponds with section 13 and which have not been produced in
compliance with that requirement, the magistrate may issue a warrant
authorising any member of the Australian Federal Police, together with any
other person named in the warrant:
(a) to enter those premises (using such force as is necessary for the
purpose);
(b) to search the premises and to break open and search any cupboard,
drawer, chest, trunk, box, package or other receptacle, whether a fixture or
not, in the premises;
(c) to take possession of, or secure against interference, any books that
appear to be books the production of which was so required; and
(d) to deliver any books possession of which is so taken into the possession
of a person authorised by the Commission to receive them.
(2) The information laid for the purposes of subsection (1) shall state that
the person laying the information suspects that there are on particular
premises in the Territory books the production of which has been required
under section 13 or under a provision of a law of a participating State or of
a participating Territory that corresponds with section 13 and which have not
been produced in compliance with that requirement and shall specify the
grounds on which the person so suspects.
(3) Where a magistrate issues a warrant under subsection (1), the magistrate
shall state on the information laid under that subsection:
(a) which of the grounds set out in the information as required by
subsection (2) the magistrate has relied on to justify the issue of the
warrant; and
(b) particulars of any other grounds relied on by the magistrate to justify
the issue of the warrant.
(4) There shall be stated in a warrant issued under this section:
(a) whether entry is authorised to be made at any time of the day or night
or during specified hours of the day or night; and
(b) a date, being a date not later than 7 days after the date of issue of
the warrant, upon which the warrant ceases to have effect.
(5) Where, under this section, a person takes possession of, or secures
against interference, any books and a person has a lien on the books, the
taking of possession of the books or the securing of the books against
interference does not prejudice the lien.
(6) Where, under this section, a person takes possession of, or secures
against interference, any books, or has any books delivered to the person's
possession under paragraph (1) (d), the person:
(a) may make copies of, or take extracts from, the books;
(b) may require any person who was a party to the compilation of the books
to make a statement providing any explanation that that person is able to
provide as to any matter relating to the compilation of the books or as to any
matter to which the books relate;
(c) may retain possession of the books for such period as is necessary to
enable the books to be inspected, and copies of, or extracts from, the books
to be made or taken, by or on behalf of the Commission;
and
(d) during that period shall permit a person who would be entitled to
inspect any one or more of the books if they were not in the possession of the
first-mentioned person to inspect at all reasonable times such of the books as
that person would be so entitled to inspect.
(7) The powers conferred by this section are in addition to, and not in
derogation of, any other powers conferred by law.
(8) In this section, "premises" includes any structure, building, aircraft,
vehicle, vessel or place (whether built on or not) and any part of such a
structure, building, aircraft, vehicle, vessel or place.
FUTURES INDUSTRY ACT 1986 - SECT 15
Offences
SECT
15. (1) A person shall not, without reasonable excuse, refuse or fail to
comply with a requirement made under section 13 or 14.
Penalty: $10,000 or imprisonment for 2 years, or both.
(2) A person shall not, in purported compliance with a requirement made
under section 13 or 14, furnish information or make a statement that is false
or misleading in a material particular.
Penalty: $10,000 or imprisonment for 2 years, or both.
(3) It is a defence to a prosecution for an offence against subsection (2)if
it is established that the defendant believed on reasonable grounds that the
information or statement was true and was not misleading.
(4) A person shall not, without reasonable excuse, obstruct or hinder:
(a) the Commission or another person in the exercise of any power under
section 13; or
(b) a person executing a warrant under section 14.
Penalty: $10,000 or imprisonment for 2 years, or both.
(5) The occupier or person in charge of any premises that a person enters
pursuant to a warrant referred to in subsection 14 (1) shall provide the
last-mentioned person with all reasonable facilities and assistance for the
effective exercise of the last-mentioned person's powers under the warrant.
Penalty: $2,500 or imprisonment for 6 months, or both.
(6) A person is not excused from making a statement providing an explanation
as to any matter relating to the compilation of any books or as to any matter
to which any books relate pursuant to a requirement made of the person in
accordance with section 13 or 14 on the ground that the statement might tend
to incriminate the person but, where the person claims before making a
statement that the statement might tend to incriminate the person, the
statement is not admissible in evidence against the person in any criminal
proceedings other than proceedings under this section.
(7) Subject to subsection (6), a statement made by a person in compliance
with a requirement made under section 13 or 14 may be used in evidence in any
criminal or civil proceedings against the person.
FUTURES INDUSTRY ACT 1986 - SECT 16
Copies or extracts to be admitted in evidence
SECT
16. (1) Subject to this section, in any legal proceedings (whether
proceedings under this Act or otherwise), a copy of or extract from a book
relating to a matter mentioned in subparagraph 13 (3) (a) (vii), (viii), (ix),
(x) or (xi) is admissible in evidence as if it were the original book or the
relevant part of the original book.
(2) A copy of or extract from a book is not admissible in evidence under
subsection (1) unless it is proved that the copy or extract is a true copy of
the book or the relevant part of the book.
(3) For the purposes of subsection (2), evidence that a copy of or extract
from a book is a true copy of the book or part of a book may be given by a
person who has compared the copy or extract with the book or the relevant part
of the book and may be given either orally or by an affidavit sworn, or by a
declaration made, before a person authorised to take affidavits or statutory
declarations.
FUTURES INDUSTRY ACT 1986 - SECT 17
Privilege
SECT
17. (1) Where:
(a) the Commission, or a person authorised by the Commission, makes a
requirement under section 13 or 14 of a duly qualified legal practitioner in
respect of a book; and
(b) the book contains a privileged communication made by, on behalf of or to
the legal practitioner in his or her capacity as a legal practitioner;
the legal practitioner is entitled to refuse to comply with the requirement
unless the person to whom or by or on behalf of whom the communication was
made or, if the person is a body corporate that is under official management
or is in the course of being wound up, the official manager or the liquidator,
as the case may be, agrees to the legal practitioner complying with the
requirements but, where the legal practitioner so refuses to comply with a
requirement, he or she shall forthwith furnish, in writing, to the Commission
or authorised person:
(c) if the legal practitioner knows the name and address of the person to
whom or by or on behalf of whom the communication was made - that name and
address; and
(d) sufficient particulars to identify the book, or part of the book,
containing the communication.
(2) Where:
(a) under section 13 or 14, the Commission, or a person authorised by the
Commission, requires a duly qualified legal practitioner to make a statement
providing an explanation as to any matter relating to the compilation of books
or as to any matter to which books relate;
and
(b) the legal practitioner is not able to make that statement without
disclosing a privileged communication made by or on behalf of o to the legal
practitioner in his or her capacity as a legal practitioner;
the legal practitioner is entitled to refuse to comply with the requirement,
except to the extent that he or she is able to comply with the requirement
without disclosing any privileged communication referred to in paragraph (b),
unless the person to whom or by or on behalf of whom the communication was
made or, if the person is a body corporate that is under official management
or is in the course of being wound up, the official manager or the liquidator,
as the case may be, agrees to the legal practitioner complying with the
requirement but, where the legal practitioner so refuses to comply with a
requirement, he or she shall forthwith furnish, in writing, to the Commission
or authorised person:
(c) if the legal practitioner knows the name and address of the person to
whom or by or on behalf of whom the communication was made - that name and
address; and
(d) if the communication was made in writing - sufficient particulars to
identify the document containing the communication.
Penalty: $1,000 or imprisonment for 3 months, or both.
FUTURES INDUSTRY ACT 1986 - SECT 18
Disclosure to Commission
SECT
18. (1) The Commission may, in relation to any dealing by a futures broker
in a futures contract, require the broker to disclose to the Commission
whether or not the dealing was effected on behalf of another person and, if it
was so effected, the name of that person and the nature of the instructions
given to the broker in respect of the dealing.
(2) The Commission may require a person who instructed a futures broker to
deal in a futures contract to disclose to the Commission whether the person
gave the instructions as trustee for, or for or on behalf of, another person
and, if the person gave the instructions as trustee for, or for or on behalf
of, another person, to disclose the name of that other person and the nature
of the instructions.
(3) The Commission may require a futures exchange or a clearing house to
disclose to the Commission, in relation to a dealing in a futures contract on
a futures market of that futures exchange or in respect of which that clearing
house operates, the names of the members of that futures exchange or clearing
house who are concerned in any action, or in any failure to act, in relation
to the dealing.
(4) Where the Commission considers that it may be necessary to give a
direction under section 56 or that a person may have contravened section 129,
130, 131, 132, 133, 134, 135 or 139, the Commission may require a person whom
the Commission believes on reasonable grounds to be capable of giving
information concerning:
(a) any dealing in futures contracts;
(b) any advice given by a futures broker, a futures adviser, a futures
broker's representative or a futures adviser's representative concerning
futures contracts;
(c) the issuing or publication of a report or analysis by a futures broker,
a futures adviser, a futures broker's representative or a futures adviser's
representative concerning futures contracts;
(d) the financial position of any business carried on by a person who is or
has been (either alone or together with another person or other persons) a
futures broker or a futures adviser and has dealt in, or given advice
concerning, as the case may be, futures contracts;
(e) the financial position of any business carried on by a nominee
controlled by a person referred to in paragraph (d) or jointly controlled by 2
or more persons at least one of whom is a person referred to in that
paragraph; or
(f) an audit of, or any report of an auditor concerning, any accounts or
records of a futures broker or of a futures adviser, being accounts or records
relating to dealings in futures contracts;
to disclose to the Commission the information that the person has in relation
to the matters concerning which the Commission believes that the person is
capable of giving information.
(5) A person is not excused from disclosing information to the Commission
pursuant to a requirement made of the person under subsection (4) on the
ground that the disclosure of the information might tend to incriminate the
person.
(6) Where a person claims, before making an oral statement disclosing
information that the person is required to disclose by a requirement made of
the person under subsection (4), that the statement might tend to incriminate
the person, evidence of that statement is not admissible in evidence against
the person in criminal proceedings other than proceedings under this section.
(7) Where, pursuant to subsection (4), the Commission requires a person to
disclose information to the Commission, the Commission shall give, or cause to
be given, to the person, at the time when the requirement is made, a notice in
the prescribed form.
(8) A person shall not, without reasonable excuse, fail to comply with a
requirement of the Commission under subsection (1), (2), (3) or (4).
Penalty: $5,000 or imprisonment for 1 year, or both.
(9) A person shall not, in purported compliance with a requirement of the
Commission under subsection (1), (2), (3) or (4), disclose information, or
make a statement, that is false or misleading in a material particular.
Penalty: $10,000 or imprisonment for 2 years, or both.
(10) It is a defence to a prosecution for an offence against subsection (9)
if it is established that the defendant believed on reasonable grounds that
the information or statement was true and was not misleading.
(11) In this section, a reference to disclosing information includes, in
relation to information that is contained in a document, a reference to
furnishing the document.
(12) A person who complies or proposes to comply with a requirement made or
purporting to have been made under this section is not liable to any
proceedings in respect of that compliance or proposed compliance.
FUTURES INDUSTRY ACT 1986 - SECT 19
Investigation of certain matters
SECT
19. Where the Commission has reason to suspect that:
(a) an offence under a provision of a relevant Act or against any other law
with respect to dealing in futures contracts; or
(b) an offence relating to futures contracts that involves fraud or
dishonesty;
may have been committed, the Commission may make such investigation as the
Commission thinks expedient for the due administration of a relevant Act.
FUTURES INDUSTRY ACT 1986 - SECT 20
Power of Court to make certain orders
SECT
20. (1) Where:
(a) on the application of the Commission, it appears to the Court that a
person has contravened this Act, or any other law in force in the Territory
relating to dealing in futures contracts, or has contravened the conditions or
restrictions of a licence, the business rules of a futures exchange, a
clearing house or a futures association or is about to do an act with respect
to dealing in futures contracts that, if done, would be such a contravention;
or
(b) on the application of a futures exchange, clearing house or futures
association, it appears to the Court that a person has contravened the
business rules of the futures exchange, clearing house or futures association,
as the case may be;
the Court may make such order or orders as it thinks fit including, but
without limiting the generality of the foregoing, one or more of the following
orders:
(c) in the case of persistent or continuing breaches of this Act, or of any
other law in force in the Territory relating to dealing in futures contracts,
or the conditions or restrictions of a licence, or of the business rules of a
futures exchange, clearing house or futures association - an order restraining
a person from carrying on a business of dealing in futures contracts, acting
as a futures adviser or as a futures broker's representative or futures
adviser's representative, or from holding himself, herself or itself out as so
carrying on business or so acting;
(d) an order restraining a person from acquiring, disposing of or otherwise
dealing in any class of futures contracts that is specified in the order;
(e) an order appointing a receiver of property of a futures broker or of
property that is held by a futures broker for or on behalf of another person,
whether as trustee or otherwise;
(f) an order declaring a futures contract to be void or voidable;
(g) for the purpose of securing compliance with any other order under this
section, an order directing a person to do or refrain from doing a specified
act;
(h) any ancillary order deemed to be desirable in consequence of the making
of an order under any of the preceding paragraphs.
(2) Where an application is made to the Court for an order under subsection
(1), the Court may, if in the opinion of the Court it is desirable to do so,
before considering the application, grant an interim order, being an order of
the kind applied for that is expressed to have effect pending the
determination of the application.
(3) Where the Commission makes an application to the Court for the making of
an order under subsection (1), the Court shall not require the Commission or
any other person, as a condition of granting an interim order under subsection
(2), to give any undertaking as to damages.
(4) The Court shall not make an order under subsection (1) if it is
satisfied that the order would unfairly prejudice a person.
(5) The Court may, before making an order under subsection (1), direct that
notice of the application be given to such persons as it thinks fit or direct
that notice of the application be published in such manner as it thinks fit,
or both.
(6) A person appointed by order of the Court under subsection (1) as a
receiver of property of a futures broker:
(a) may require the broker to deliver to the person any property of which
the person has been appointed receiver or to give to the person all
information concerning that property that may reasonably be required;
(b) may acquire and take possession of any property of which the person has
been appointed receiver;
(c) may deal with any property that the person has acquired or of which the
person has taken possession in any manner in which the broker might lawfully
have dealt with the property; and
(d) has such other powers in respect of the property as the Court specifies
in the order.
(7) In paragraph (1) (e) and subsection (6), "property", in relation to a
futures broker, includes money or other property entrusted to or received on
behalf of any other person by the broker or another person in the course of or
in connection with a business of dealing in futures contracts carried on by
the futures broker.
(8) A person shall not, without reasonable excuse, contravene:
(a) an order under this section that is applicable to the person; or
(b) a requirement of a receiver appointed by order of the Court under
subsection (1).
Penalty: $10,000 or imprisonment for 2 years, or both.
(9) The Court may rescind, vary or discharge an order made by it under this
section or suspend the operation of such an order.
FUTURES INDUSTRY ACT 1986 - DIVISION 2
Division 2 - Investigations
FUTURES INDUSTRY ACT 1986 - SECT 21
Interpretation
SECT
21. (1) In this Division, unless the contrary intention appears:
"direction" means a direction given to the Commission in the exercise of a
power under subsection 22 (1), (2) or (3) in relation to the carrying out of
an investigation relating to dealing in futures contracts;
"inspector" means an inspector appointed under this Division;
"prescribed direction" means a direction given in the exercise of a power
under subsection 22 (1) or (2) otherwise than in response to a request made by
the Commission under subsection 22 (4), not being a direction that has been
approved by the Ministerial Council under subsection 22 (6);
"prescribed person" means a person suspected or believed by an inspector, on
reasonable grounds, to be capable of giving information concerning any matter
being, or to be, investigated by the inspector pursuant to this Division;
"relevant authority", in relation to a direction or in relation to an
investigation that is carried out, or is to be carried out, pursuant to a
direction, means:
(a) in the case of a direction given by the Minister other than a direction
that has been approved by the Ministerial Council under subsection 22 (6) -
the Minister; or
(b) in the case of a direction given by the Ministerial Council or approved
by the Ministerial Council under subsection 22 (6) - the Ministerial Council.
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