Corporations Amendment (No. 1) Act 2010

Administered by Department of the Treasury

Legislation au C2010A00131 In force Act

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Corporations Amendment (No. 1) Act 2010

 

No. 131, 2010

 

 

 

 

 

An Act to amend the law relating to corporations, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendments

Australian Securities and Investments Commission Act 2001

Corporations Act 2001

Telecommunications (Interception and Access) Act 1979

 

 

 

Corporations Amendment (No. 1) Act 2010

No. 131, 2010

 

 

 

An Act to amend the law relating to corporations, and for related purposes

[Assented to 24 November 2010]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Corporations
Amendment (No. 1) Act 2010.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

24 November 2010

2.  Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

13 December 2010
(see F2010L03188)

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in Column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Amendments

 

Australian Securities and Investments Commission Act 2001

1  Subsection 35(1)

Repeal the subsection, substitute:

 (1) Where a member or staff member has reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises in Australia, books whose production could be required under this Division, he or she may:

 (a) lay before a magistrate an information on oath or affirmation setting out those grounds; and

 (b) apply for the issue of a warrant to search the premises for those books.

Note: The heading to section 35 is altered by omitting “not produced”.

2  Subsection 36(1)

Repeal the subsection, substitute:

 (1) This section applies where, on an application under section 35, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, particular books whose production could be required under this Division.

3  After section 36

Insert:

36A  Execution of warrant

 (1) Before any person enters premises under a search warrant issued under section 36, a member of the Australian Federal Police must:

 (a) announce that the member is authorised to enter the premises; and

 (b) give any person at the premises an opportunity to allow entry to the premises.

 (2) However, the member of the Australian Federal Police is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.

 (3) If the occupier of the premises is present at the premises:

 (a) the member of the Australian Federal Police must make available to the occupier a copy of the warrant; and

 (b) the occupier is entitled to observe the search being conducted.

 (4) The occupier’s right to observe the search being conducted ends if the occupier impedes the search.

 (5) This section does not prevent 2 or more areas of the premises being searched at the same time.

 (6) If books are seized under the warrant, the member of the Australian Federal Police or a person assisting the member must provide a receipt for the books.

 (7) If 2 or more books are seized, they may be covered in the one receipt.

Corporations Act 2001

4  Subsection 173(1)

Omit “a hard copy of the information on the register”, substitute “the register by computer”.

5  Subsection 173(1A)

Repeal the subsection.

6  Paragraph 173(3)(a)

Repeal the paragraph, substitute:

 (a) makes an application to the company or registered scheme in accordance with subsection (3A); and

7  Subsection 173(3)

Omit “and the person asks for the data on floppy disk, the company or scheme must give the data to the person on floppy disk. The data must be readable but the floppy disk need not be formatted for the person’s preferred operating system”, substitute “, the company or registered scheme must give the copy to the person in the prescribed form”.

8  After subsection 173(3)

Insert:

 (3A) An application is in accordance with this subsection if:

 (a) the application states each purpose for which the person is accessing the copy; and

 (b) none of those purposes is a prescribed purpose; and

 (c) the application is in the prescribed form.

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

9  After subsection 177(1)

Insert:

 (1AA) A person must not:

 (a) use information obtained from a register kept under this Chapter for any purpose prescribed by regulations made for the purposes of paragraph 173(3A)(b); or

 (b) disclose information of that kind knowing that the information is likely to be used for any such purpose.

10  Subsections 177(1B), (2) and (3)

After “subsection (1)”, insert “or (1AA)”.

11  Section 761A

Insert:

annual turnover, of a body corporate during a 12‑month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12‑month period, other than:

 (a) supplies made from any of those bodies corporate to any other of those bodies corporate; or

 (b) supplies that are input taxed; or

 (c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999); or

 (d) supplies that are not made in connection with an enterprise that the body corporate carries on; or

 (e) supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

12  Subsection 1019G(1)

Repeal the subsection, substitute:

 (1) An offer to which this Division applies:

 (a) must remain open for at least 1 month after the date of offer; and

 (b) cannot remain open for more than 12 months after the date of offer.

13  Paragraph 1019K(1)(b)

Omit “subsection 1019G(1)”, substitute “paragraph 1019G(1)(b)”.

14  Paragraph 1021P(3)(c)

Repeal the paragraph, substitute:

 (c) any of the following apply:

 (i) the offer does not remain open for the period required by paragraph 1019G(1)(a);

 (ii) the offer remains open for longer than is permitted by paragraph 1019G(1)(b);

 (iii) in purporting to withdraw the offer, the person fails to comply with a requirement of subsection 1019G(2) or (3).

15  After subsection 1041B(1)

Insert:

 (1A) For the purposes of the application of the Criminal Code in relation to an offence based on subsection (1):

 (a) intention is the fault element for the physical element consisting of doing or omitting to do an act as mentioned in that subsection; and

 (b) recklessness is the fault element for the physical element consisting of having, or being likely to have, the effect of creating, or causing the creation of, a false or misleading appearance as mentioned in that subsection.

Note 1: For intention, see section 5.2 of the Criminal Code.

Note 2: For recklessness, see section 5.4 of the Criminal Code.

16  Section 1312

Before “Where”, insert “(1)”.

17  At the end of Section 1312

Add:

 (2) Subsection (1) does not apply in relation to the following provisions of this Act:

 (a) section 1041A;

 (b) subsection 1041B(1);

 (c) subsection 1041C(1);

 (d) section 1041D;

 (e) subsection 1041E(1);

 (f) subsection 1041F(1);

 (g) subsection 1041G(1);

 (h) subsection 1043A(1);

 (i) subsection 1043A(2).

Note: The penalties applicable to these provisions in relation to bodies corporate are set out in the relevant item of the table in Schedule 3.

18  At the end of Chapter 10

Add:

Part 10.16—Transitional provisions relating to the Corporations Amendment (No. 1) Act 2010

 

1516  Application of amendments

 (1) The amendments made by items 4 to 8 of Schedule 1 to the Corporations Amendment (No. 1) Act 2010 apply in relation to requests made after the commencement of that Schedule to inspect, or receive a copy of, a register.

 (2) The amendment made by item 9 of that Schedule applies in relation to information obtained from a register before, at or after the commencement of that Schedule.

 (3) The amendments made by items 12 to 14 of that Schedule apply in relation to offers made after the commencement of that Schedule.

19  Schedule 3 (table item 29)

Repeal the item, substitute:

29

Subsection 177(1)

50 penalty units.

29AA

Subsection 177(1AA)

50 penalty units.

20  Schedule 3 (table items 309B to 312A)

Repeal the items, substitute:

310

Section 1041A, subsections 1041B(1), and 1041C(1), section 1041D and subsections 1041E(1), 1041F(1), 1041G(1), 1043A(1) and 1043A(2)

In the case of an individual, imprisonment for 10 years or a fine the greater of the following:

(a) 4,500 penalty units;

(b) if the court can determine the total value of the benefits that have been obtained by one or more persons and are reasonably attributable to the commission of the offence—3 times that total value;

or both.

In the case of a body corporate, a fine the greatest of the following:

(a) 45,000 penalty units;

(b) if the court can determine the total value of the benefits that have been obtained by one or more persons and are reasonably attributable to the commission of the offence—3 times that total value;

(c) if the court cannot determine the total value of those benefits—10% of the body corporate’s annual turnover during the 12‑month period ending at the end of the month in which the body corporate committed, or began committing, the offence.

Telecommunications (Interception and Access) Act 1979

21  After subsection 5D(5B)

Insert:

Market misconduct

 (5C) An offence is also a serious offence if it is an offence against any of the following provisions of the Corporations Act 2001:

 (a) section 1041A;

 (b) subsection 1041B(1);

 (c) subsection 1041C(1);

 (d) section 1041D;

 (e) subsection 1041E(1);

 (f) subsection 1041F(1);

 (g) subsection 1041G(1);

 (h) subsection 1043A(1);

 (i) subsection 1043A(2).

22  Application of amendment

 The amendment made by item 3 of this Schedule applies in relation to warrants issued after the commencement of this Schedule.

 

 [Minister’s second reading speech made in—

House of Representatives on 29 September 2010

Senate on 27 October 2010]

(201/10)

 

Overview

The Corporations Amendment (No. 1) Act 2010 was enacted by the Parliament of Australia to amend existing corporate laws, primarily focusing on updating and enhancing regulatory measures to better address corporate misconduct and market integrity. This Act introduces a series of amendments to the Corporations Act 2001, the Australian Securities and Investments Commission Act 2001, and the Telecommunications (Interception and Access) Act 1979, among other things. The primary objective of these amendments is to strengthen the regulatory framework governing corporate activities, improve transparency, and ensure more stringent penalties for violations, thereby protecting investors and maintaining market stability. Among the key changes, the Act updates procedures for accessing corporate information, modifies the requirements for search warrants, and introduces new penalties for specific corporate offences. It also aligns certain provisions with modern technological standards, such as providing for electronic access to company registers. Additionally, the Act aims to ensure that the powers of enforcement agencies, like the Australian Federal Police, are exercised with appropriate checks and balances, maintaining a balance between effective law enforcement and individual rights.

Scope and Application

The Corporations Amendment (No. 1) Act 2010 applies to corporations, registered schemes, and other entities subject to the Corporations Act 2001. It also affects the Australian Securities and Investments Commission (ASIC) under the Australian Securities and Investments Commission Act 2001, and amends the Telecommunications (Interception and Access) Act 1979. The amendments pertain to the inspection of company registers, the execution of search warrants by ASIC, and the regulation of market misconduct offences. This Act has a national reach, impacting entities across Australia. Notably, the Act includes specific exclusions and limitations concerning the application of certain penalties and the scope of amendments, which are detailed in the legislative text. The application of the amendments is often extended or restricted through subordinate instruments, such as regulations or guidelines, which may provide further clarification or implementation details.

Key Provisions

The Corporations Amendment (No. 1) Act 2010 introduces a number of significant changes to the Corporations Act 2001, the Australian Securities and Investments Commission Act 2001, and the Telecommunications (Interception and Access) Act 1979. Firstly, it modifies the process for obtaining search warrants for documents related to suspected illegal activities, under the Australian Securities and Investments Commission Act 2001. It now requires an authorised person to lay an information before a magistrate and apply for a warrant, rather than just presenting the information. The warrant must be executed by a member of the Australian Federal Police, who must announce their authority and give the premises' occupant an opportunity to allow entry, unless immediate entry is necessary to prevent the warrant's execution from being frustrated. The occupant can observe the search unless they impede it. Under the Corporations Act 2001, the Act updates the method of providing information from the company register. Instead of supplying a hard copy of the information, the company or registered scheme must now provide the information in the prescribed form, which can be by computer. The Act also imposes restrictions on the use of information obtained from the register. Specifically, it prohibits using this information for certain prescribed purposes and forbids disclosing it if it is known to be likely used for such purposes. Furthermore, the Act alters the process for making an application for a copy of the register. The application must state the purpose for accessing the copy, ensure none of those purposes is a prescribed purpose, and be in the prescribed form. The Act imposes several obligations on parties governed by it. For example, it mandates that search warrants under the Australian Securities and Investments Commission Act 2001 must be executed by an authorised member of the Australian Federal Police, who must announce their authority and offer the premises' occupant an opportunity to allow entry. It also requires that offers under the Corporations Act 2001 remain open for at least one month and no longer than twelve months. Additionally, it mandates that applications for information from the company register must be in the prescribed form and state the purpose for accessing the copy. The Act establishes a range of penalties and consequences for breaches. Under the Corporations Act 2001, subsection 177(1) and 177(1AA) violations carry a penalty of 50 penalty units each. More severe breaches, such as those involving sections 1041A, 1041B(1), 1041C(1), 1041D, and subsections 1041E(1), 1041F(1), 1041G(1), 1043A(1), and 1043A(2), are subject to more substantial penalties. For individuals, the penalty is imprisonment for up to ten years or a fine of up to the greater of 4,500 penalty units or three times the total value of benefits obtained through the offence. For bodies corporate, the penalty is a fine of up to the greater of 45,000 penalty units, three times the total value of benefits obtained, or 10% of the body corporate's annual turnover during the relevant period.

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Area of Law
Corporate Law & Governance
Instrument
Act
Concepts
Commencement Provisions
Repeal & Amendment
Offence Provisions
Penalties & Sanctions
Regulatory Standards
Compliance Obligations

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.