Telstra Corporation (Ownership — Interests in Shares) Regulations 1997 (Cth)
made under the
Consolidated as in force on 3 September 1999
(includes amendments up to 1999 No. 160)
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
made under the
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These Regulations are the
Telstra Corporation (Ownership — Interests in Shares) Regulations 1997 .
The object of these Regulations is to identify the interests in shares that are to be disregarded in giving effect to certain of the ownership provisions of the Act.
(1) In these Regulations, unless the contrary intention appears:
Act means theTelstra Corporation Act 1991 .
American Depositary Share means a security, known by that name, representing an interest in another security.
instalment receipt means a security, issued by a sale-scheme trustee for a Telstra sale scheme, that confers a beneficial interest in a Telstra share.
Interim American Depositary Share means an American Depository Share representing an interest in an instalment receipt.
investment fund means:
(a) a fund of the kind generally known as a unit trust (except a unit trust of the kind generally known as a discretionary trust); or
(b) a life insurance company, in respect only of its administration of a statutory fund, within the meaning of the
Life Insurance Act 1995 ; or(c) a superannuation entity, within the meaning of the
Superannuation Industry (Supervision) Act 1993 ; or(d) an exempt public sector superannuation scheme, within the meaning of the
Superannuation Industry (Supervision) Act 1993 .(2) An expression used in these Regulations, and in the Schedule to the Act, has the same meaning as it has in the Schedule.
Note 1 Examples of expressions affected by this subregulation are associate, company, direct control interest, foreign person, interest in a share, lending money, ownership provisions, share, stake and underwriter.
Note 2 Other expressions defined for the Act as a whole have the same respective meanings in the Regulations:Acts Interpretation Act 1901 , para. 46 (1) (a). For example,sale-scheme trustee andTelstra sale scheme .
(1) Unless the contrary intention appears, a reference in these Regulations to a person who holds a beneficial interest in the capital, or income, of an investment fund includes a reference to a person who holds:
(a) an interest of that kind jointly with another person; and
(b) an interest of that kind that is prospective, because the person:
(i) has entered into a contract to purchase a beneficial interest; or
(ii) has a right, otherwise than by reason of holding a present interest of any kind, to have a beneficial interest transferred to the person or to the person’s order (whether exercisable presently, or in the future, and whether or not subject to a condition); or
(iii) has a right to acquire a beneficial interest under an option (whether exercisable presently, or in the future, and whether or not subject to a condition).
(2) Subregulation (1) applies regardless of:
(a) the remoteness of the interest; or
(b) the way in which it arose; or
(c) the fact that the exercise of a right conferred by the interest is, or is capable of being made, subject to a restraint or restriction.
(3) For this regulation, an interest is not a beneficial interest if:
(a) the interest is held solely as security under a moneylending agreement that has not ceased to have effect; and
(b) the ordinary business of the holder includes the lending of money.
Note Reference is made to a person who holds a beneficial interest in the capital, or income, of an investment fund in regulation 16.
(1) This regulation applies to a person whose ordinary business includes the lending of money, if:
(a) in the course of the business, the person holds a beneficial interest of the kind to which regulation 4 applies as a loan security; and
(b) the loan security is enforced; and
(c) as a result of the enforcement, the person becomes the holder of the interest.
(2) The person is taken not to hold the interest at all times during the period beginning when the security was enforced and ending:
(a) at the end of 90 days; or
(b) if the Secretary, by written notice, allows a longer period — at the end of that longer period.
This Part prescribes certain kinds of interests in shares that must be disregarded for the purposes of the ownership provisions.
(1) For regulation 6:
(a) Division 2 sets out interests of a prescribed kind for paragraph 9 (1) (d) of the Schedule to the Act; and
(b) Division 3 prescribes persons for that paragraph.
(2) Also, for regulation 6:
(a) an interest in a share in Telstra that is transferred from the Commonwealth before 11.00pm on the first day on which instalment receipts are issued for a Telstra sale scheme is an interest of a prescribed kind; and
(b) a person who holds an interest in a share in Telstra that is transferred from the Commonwealth before 11.00pm on the first day on which instalment receipts are issued for a Telstra sale scheme is prescribed.
(3) Subregulation (2) ceases to have effect in relation to the interest in the share, and the person, at 11.00pm on the first day on which instalment receipts are issued for the Telstra sale scheme.
(4) In subregulations (2) and (3), a reference to a time of day is a reference to the time applicable on the day in the Australian Capital Territory.
An interest in a share is an interest of a prescribed kind if:
(a) the interest exists solely as a result of an action taken by the interest-holder, in relation to an investment fund:
(i) in the interest-holder’s capacity as trustee or manager of the fund; or
(ii) in the case of a statutory fund, within the meaning of the
Life Insurance Act 1995 — in the interest‑holder’s capacity as the life insurance company administering the fund; or(ii) because the interest-holder has a custodial responsibility of another kind in relation to the fund; and
(b) the interest-holder is a person prescribed by subregulation 16 (1).
(1) An interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action taken by the interest-holder in the interest-holder’s capacity as depositary or custodian for, or nominee of, another person.
(2
) For the avoidance of doubt, action of the kind mentioned in subregulation (1) includes action by a person who is:
(a) a depositary in connection with a program for the issue of Interim American Depositary Shares or American Depositary Shares; or
(b) a custodian for a depositary mentioned in paragraph (a); or
(c) a clearing agency registered under section 17a of the Securities Exchange Act of 1934, as amended, of the United States of America, as in force at the commencement of these Regulations, or a nominee of such a clearing agency.
Note A person whose interest is disregarded under this regulation is a person prescribed under regulation 17.
(1) An interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action that, because the interest-holder is a global coordinator (or related company), is taken by the interest-holder:
(a) for the purpose of:
(i) carrying out the function of a global coordinator; or
(ii) assisting any other global coordinator to carry out that function; or
(iii) meeting an obligation arising from an activity under subparagraph (i) or (ii); and
(b) before the end of 37 days after instalment receipts are first quoted on the securities exchange of Australian Stock Exchange Limited for a Telstra sale scheme.
(2) Subregulation (1) applies to an interest only if the interest is disposed of by the interest-holder before the end of:
(a) 90 days after its acquisition; or
(b) if the Secretary, by written notice, allows a longer period — that longer period.
(3) In this regulation:
allocation of instalment receipts includes allocation of Interim American Depositary Shares.
global coordinator means a person who, by agreement with the Commonwealth, undertakes to ensure that, following an allocation (including an over-allocation) of instalment receipts, a person entitled to receive a security of that kind does not fail to receive the security.
Note A person whose interest is disregarded under this regulation is a person prescribed under r 18.
An interest in a share is an interest of a prescribed kind if the interest exists solely as a result of an action taken by the interest-holder:
(a) in the interest-holder’s capacity as a broker in securities, in the ordinary course of business; and
(b) on the express instruction of a client of the interest-holder.
Note A person whose interest is disregarded under this regulation is a person prescribed under regulation 19.
An interest in a share is an interest of a prescribed kind if the interest exists solely as a result of the interest-holder being a shareholder in a company, other than Telstra, that is not a foreign person within the meaning of the
Foreign Acquisitions and Takeovers Act 1975 .
Note A person whose interest is disregarded under this regulation is a person prescribed under regulation 20.
An interest in a share is an interest of a prescribed kind if:
(a) the interest exists solely as a result of the interest-holder being a participant in an employee share plan administered by Telstra for its employees; and
(b) in connection with that interest or any other interest in Telstra, the person:
(i) is not directly, or indirectly, controlled by a foreign person; and
(ii) does not act in concert with a foreign person; and
(iii) is not accustomed, or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a foreign person.
Note A person whose interest is disregarded under this regulation is a person prescribed under regulation 21.
An interest in a share is an interest of a prescribed kind if, in connection with that interest or any interest in Telstra, the interest-holder, although being an associate of a foreign person:
(a) is not directly, or indirectly, controlled by a foreign person; and
(b) does not act in concert with a foreign person; and
(c) is not accustomed, or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a foreign person.
Note A person whose interest is disregarded under this regulation is a person prescribed under regulation 22.
(1) This regulation applies to an interest in a share held by a person (
the primary interest-holder ) whether or not the primary interest-holder, in connection with that interest or any interest in Telstra:
(a) is directly, or indirectly, controlled by a foreign person; or
(b) acts in concert with a foreign person; or
(c) is accustomed, or under an obligation, either formal or informal, to act in accordance with the directions, instructions or wishes of a foreign person.
(2) The interest is an interest of a prescribed kind when, after being counted for the ownership provisions in determining the particular type of stake in Telstra held, respectively, by the primary interest-holder and a foreign person (if any) mentioned in subregulation (1), the interest would, except for the operation of this regulation, also be counted for the ownership provisions in determining the particular type of stake held in Telstra by an irrelevant associate mentioned in subregulation (3).
(3) A person is an irrelevant associate if, in connection with that interest or any interest in Telstra, although the primary interest-holder is an associate of the person:
(a) the primary interest-holder is not directly, or indirectly, controlled by the person; and
(b) the primary interest-holder does not act in concert with the person; and
(c) the primary interest-holder is not accustomed, or under an obligation, either formal or informal, to act in accordance with the directions, instructions or wishes of the person.
Note A person whose interest is disregarded under this regulation is a person prescribed under regulation 23.
(1) This regulation applies to an interest in a share held by a person (
the interest-holder ) who, although an associate of persons in a group to which subclause 11 (3) of the Schedule to the Act applies, is not a person in the group.(2) The interest is an interest of a prescribed kind when, after being counted once for the ownership provisions in determining the total of the stakes of a particular type that the group holds in Telstra, the interest could, except for the operation of this regulation, be counted again for that purpose.
Note A person whose interest is disregarded under this regulation is a person prescribed under regulation 24.
(1) The interest-holder mentioned in paragraph 7 (a) is a prescribed person if the investment fund in relation to which the person has a function mentioned in subparagraph 7 (a) (i), (ii) or (iii) is a substantially Australian investment fund.
(2) In subregulation (1),
substantially Australian investment fund means an investment fund that, in the reasonable opinion of the interest-holder, is a fund:
(a) in which a beneficial interest in less than 40% of the capital, and 40% of income for distribution, is held by persons who are foreign; or
(b) in the case of a life insurance company, in its administration of a statutory fund, within the meaning of the
Life Insurance Act 1995 — in which not more than 40% of policyholder liabilities of the statutory fund are owed to foreign persons.
The interest-holder first mentioned in subregulation 8 (1) is a prescribed person if that interest-holder does not:
(a) hold a beneficial interest in the share; or
(b) have authority, by proxy or any other arrangement with the holder of the beneficial interest, to exercise in a discretionary way the voting rights attaching to the share.
The interest-holder mentioned in subregulation 9 (1) is a prescribed person.
The interest-holder mentioned in regulation 10 is a prescribed person if that interest-holder does not:
(a) hold a beneficial interest in the share; or
(b) have authority, by proxy or any other arrangement with the holder of the beneficial interest, to exercise in a discretionary way the voting rights attaching to the share.
The interest-holder mentioned in regulation 11 is a prescribed person.
The interest-holder mentioned in regulation 12 is a prescribed person if the interest-holder is not a foreign person.
The interest-holder mentioned in regulation 13 is a prescribed person if the interest-holder is not a foreign person.
The primary interest-holder mentioned in regulation 14 is a prescribed person.
The interest-holder mentioned in regulation 15 is a prescribed person if the interest-holder is not a foreign person.
(1) For this regulation, information about an unacceptable foreign-ownership situation is information relevant to an ownership matter within the meaning of section 8bn of the Act.
(2) Telstra must give the Minister written notice that an unacceptable foreign-ownership situation may exist in relation to Telstra if:
(a) Telstra has reason to believe that a situation of that kind may exist; and
(b) the Minister has directed Telstra to give notices of that kind.
(3) The Minister’s direction may require the information to be given:
(a) under particular circumstances; and
(b) in a particular manner; and
(c) within a certain time (not being a time earlier than
14 days after the notice is given).
(4) The information in the notice must include:
(a) the reason for the belief; and
(b) the steps taken, or intended to be taken, by Telstra to determine whether, in fact, the unacceptable foreign‑ownership situation does exist; and
(c) the steps intended to be taken by Telstra to remedy the unacceptable foreign-ownership situation, if that situation does exist.
(1) The Minister may require, by written notice given to Telstra, that Telstra give the Minister written information about an ownership matter mentioned in the notice.
(2) The notice may require the information to be given in a particular manner and within a certain time (not being a time earlier than 14 days after the notice is given).
(3) Telstra must comply with the Minister’s notice within the time mentioned in the notice, or, if no time is mentioned, before the end of 14 days after the notice is received
The
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am. = amended rep. = repealed rs. = repealed and substituted | |
R. 1.......................................... | rs. 1999 No. 160 |
R. 5.......................................... | am. 1999 No. 160 |
R. 6.......................................... | rs. 1999 No. 160 |
R. 6A....................................... | ad. 1999 No. 160 |
R. 9.......................................... | am. 1999 No. 160 |
Notes 1 and 2 to r. 9............. | rep. 1999 No. 160 |
Note to r. 9.............................. | ad. 1999 No. 160 |
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