Australian Securities and Investments Commission
Corporations Act 2001 - Subsection 341(1) - Variation
Pursuant to subsection 341(1) of the Corporations Act 2001 the Australian Securities and Investments Commission hereby varies ASIC Class Order [98/1417] by:
1. replacing the word "Law" where it appears in the heading with the words "Act 2001";
2. replacing the words "Corporations Law ("the Law")" where appearing in the first line with the words "Corporations Act 2001 (the "Act")";
3. at the end of paragraph (a) first appearing, after the words "and 314(2)(c)" adding the words "of the Act";
4. replacing the word "Law" with the word "Act" in each of the following places:
(a) in paragraph (b) first appearing;
(b) in paragraph (h);
(c) in paragraph (i);
(d) in paragraph (o);
(e) in both places in paragraph (p)(iii); and
(f) where first appearing in paragraph (u);
5. replacing paragraph (b) second appearing with the following paragraph :
"If the Company is a large proprietary company, subsection 319(4) of the Corporations Law, as taken to be included in the Act by s.1408(2) of the Act, does not apply to the Company;";
6. in paragraph (d) replacing the words "a borrowing corporation, the guarantor of a borrowing corporation" with the words "a borrower in relation to a debenture, the guarantor of such a borrower";
7. in paragraph (e)(iv), after the words "under s.340" adding the words "of the Act";
8. in paragraph (e)(iv) replacing "officer" with "Officer";
9. replacing paragraph (f) with the following paragraph:
"Before shareholders resolved in the manner contemplated by paragraph (e)(iv) they were provided, either in the notice of meeting or in material accompanying a circular resolution, with a statement by the directors stating whether, in their opinion, the cost of having the financial statements audited outweighs the expected benefits of the audit and setting out their reasons for that opinion;";
10. in paragraph (q) replacing "company" with "Company"; and
11. in paragraph (u) replacing the words "335(1A) of the Law" with the words "335(1A) of the Corporations Law".
Dated the 3rd day of October 2001
Signed by Brendan Byrne
as a delegate of the Australian Securities and Investments Commission
Overview
The Australian Securities and Investments Commission Corporations Act 2001 - Subsection 341(1) - Variation legislative instrument, enacted in 2001, was introduced to address the need for updating and aligning various references within the Corporations Act 2001 and related instruments, ensuring consistency and clarity in legal terminology and application. This legislative instrument was enacted by the Australian Securities and Investments Commission, a delegate of the Australian government, to streamline references within the act and its associated class orders, thereby enhancing the readability and enforcement of the legislation. The policy objective was to ensure that the Corporations Act 2001 and its related documents are coherent and reflect the most current legal terminology and provisions, which aids in the effective administration and compliance with corporate laws in Australia.
Scope and Application
The Corporations Act 2001 governs various aspects of company operations, financial reporting, and regulatory compliance within Australia, and the legislative instrument in question amends ASIC Class Order [98/1417] to align with the new terminology and provisions of the Act. This amendment applies to companies, directors, officers, and other entities as defined within the Corporations Act 2001, specifically addressing financial reporting requirements, auditing processes, and the dissemination of financial information to shareholders. The amendments have a nationwide reach, impacting entities across all Australian states and territories. Certain exclusions or exemptions are not explicitly stated in the legislative instrument, but the specific adjustments suggest targeted refinements to existing class order provisions rather than broad exemptions. The legislative instrument further extends the application of the Act through subordinate instruments, ensuring that the updated class order reflects the current legal framework established by the Corporations Act 2001.
Key Provisions
Pursuant to subsection 341(1) of the Corporations Act 2001, the Australian Securities and Investments Commission (ASIC) has made amendments to the ASIC Class Order [98/1417]. These changes are designed to update references to the old "Corporations Law" with the "Corporations Act 2001" and to clarify certain provisions related to financial statements and audits. For instance, section 1(1) updates the heading of the order by replacing "Law" with "Act 2001." Similarly, section 1(2) modifies the introductory text to reflect the new act, changing "Corporations Law" to "Corporations Act 2001." The subsequent sections, including 1(3) to 1(9), systematically replace "Law" with "Act" throughout the document, ensuring consistency and clarity.
The obligations imposed by these amendments include updating references and terminology to align with the new legal framework. Companies and other entities governed by the ASIC Class Order [98/1417] must ensure their practices and documentation reflect the updated terminology. For instance, section 1(4)(a) now refers to "subsection 314(2)(c) of the Act," indicating that the specific subsection of the Corporations Act 2001 should be cited. Furthermore, section 1(5) specifies that certain provisions do not apply to large proprietary companies, as outlined in subsection 319(4) of the Act. These obligations are critical for maintaining compliance with the regulatory requirements and ensuring that all references are up to date.
Breaches of the Corporations Act 2001 can result in significant consequences, both civil and criminal. While the specific penalties for breaching this particular class order are not detailed in the legislative instrument, general provisions of the Act apply. For example, under section 1317E, individuals or entities that contravene a civil penalty provision can face fines of up to $210,000 for a corporation and $42,000 for an individual. Additionally, section 1317G of the Act allows for pecuniary penalties up to $2,100 per offence for individuals and $10,500 for corporations. These penalties underscore the importance of adhering to the legislative requirements and maintaining compliance to avoid potential sanctions.