Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Technical and other minor amendments
Australian Securities and Investments Commission Act 2001
1 Paragraph 1(1)(d)
Omit "Corporations and Securities Panel", substitute "Takeovers Panel".
2 Subsection 5(1) (definition of Panel )
Omit "Corporations and Securities Panel", substitute "Takeovers Panel".
3 Part 10 (heading)
Repeal the heading, substitute:
Part 10 -- The Takeovers Panel
4 Subsection 172(1) (at the end of the note)
Add:
It was renamed by the Financial Services Reform Act 2001 .
5 Subsection 6(3)
Repeal the subsection.
6 Section 9 (definition of Advisory Committee )
Repeal the definition.
7 Section 9 (definition of appropriate dealer )
Repeal the definition.
8 Section 9 (definition of associate )
Repeal the definition, substitute:
"associate" has the meaning given by sections 10 to 17.
9 Section 9 (paragraph (b) of the definition of continuously quoted securities )
Repeal the paragraph, substitute:
(b) are securities of an entity in relation to which the following subparagraphs are satisfied:
(i) no exemption under section 111AS or 111AT, or modification under section 111AV, covered the entity, or any person as director or auditor of the entity, at any time in that 12 months; and
(ii) no exemption under paragraph 741(1)(a), or declaration under paragraph 741(1)(b), relating to a provision that is a disclosing entity provision for the purposes of Division 4 of Part 1.2A covered the entity, or any person as director or auditor of the entity, at any time in that 12 months; and
(iii) no order under section 340 or 341 covered the entity, or any person as director or auditor of the entity, at any time in that 12 months;
10 Section 9 (definition of nominee corporation )
Repeal the definition.
10A Section 9 (definition of old Corporations Law )
Omit "Part 11.1", substitute "Part 10.1".
11 Section 9 (definition of Panel )
Omit "Corporations and Securities Panel", substitute "Takeovers Panel".
12 Section 9 (definition of qualified accountant )
Repeal the definition, substitute:
"qualified accountant" has the meaning given by section 88B.
13 Section 9 (definition of subscriber )
Repeal the definition.
14 Section 9 (paragraph (b) of the definition of substantial holding )
Omit "takeover period", substitute "bid period".
14A Section 9 (definition of voting power )
Omit "company", substitute "body or managed investment scheme".
15 Section 12
Repeal the section, substitute:
12 References in Chapters 6 to 6C, and other references relating to voting power and takeovers etc.
(1) Subject to subsection 16(1), but despite anything else in this Part, this section applies for the purposes of interpreting a reference to an associate (the associate reference ), in relation to a designated body, if:
(a) the reference occurs in a provision of Chapter 6, 6A, 6B or 6C; or
(b) the reference occurs in a provision outside those Chapters that relates to any of the following matters:
(i) the extent, or restriction, of a power to exercise, or to control the exercise of, the votes attached to voting shares in the designated body;
(ii) the primary person's voting power in the designated body;
(iii) relevant interests in securities in the designated body;
(iv) a substantial holding in the designated body;
(v) a takeover bid for securities in the designated body;
(vi) the compulsory acquisition, or compulsory buy - out, of securities in the designated body.
(2) For the purposes of the application of the associate reference in relation to the designated body, a person (the second person ) is an associate of the primary person if, and only if, one or more of the following paragraphs applies:
(a) the primary person is a body corporate and the second person is:
(i) a body corporate the primary person controls; or
(ii) a body corporate that controls the primary person; or
(iii) a body corporate that is controlled by an entity that controls the primary person;
(b) the second person is a person with whom the primary person has, or proposes to enter into, a relevant agreement for the purpose of controlling or influencing the composition of the designated body's board or the conduct of the designated body's affairs;
(c) the second person is a person with whom the primary person is acting, or proposing to act, in concert in relation to the designated body's affairs.
(3) For the purposes of the application of this section in relation to a designated body that is a managed investment scheme:
(a) a reference to controlling or influencing the composition of the designated body's board is taken to be a reference to controlling or influencing:
(i) if the scheme is a registered scheme--whether a particular company becomes or remains the scheme's responsible entity; or
(ii) if the scheme is not a registered scheme--whether a particular person is appointed, or remains appointed, to the office (by whatever name it is known) in relation to the scheme that corresponds most closely to the office of responsible entity of a registered scheme; and
(b) a reference to voting shares in the designated body is taken to be a reference to voting interests in the managed investment scheme.
(4) In relation to a matter relating to securities in a designated body, a person may be an associate of the body and the body may be an associate of the person.
(5) In this section:
"designated body" means:
(a) a body; or
(b) a managed investment scheme.
16 Section 13
Omit "and relates to a matter that is not of a kind referred to in paragraph 12(1)(a), (b) or (c)".
17 After section 88A
Insert:
(1) For the purposes of this Act, a qualified accountant is a person covered by a declaration in force under subsection (2).
(2) ASIC may, in writing, declare that all members of a specified professional body, or all persons in a specified class of members of a specified professional body, are qualified accountants for the purposes of this Act.
(3) ASIC may, in writing, vary or revoke a declaration made under subsection (2).
18 Paragraph 111AF(a)
Omit "or", substitute "and".
19 Paragraph 111AH(1)(a)
Omit ", 601CZB or 1070", substitute "or 601CZB".
19A Section 610
Omit "body corporate" (wherever occurring), substitute "designated body".
Note: The heading to section 610 is altered by omitting " body corporate " and substituting " body or managed investment scheme ".
Note: The heading to subsection 610(1) is altered by omitting " body corporate " and substituting " body or managed investment scheme ".
20 Subsection 610(2) (note)
Omit "Corporations and Securities Panel", substitute "Takeovers Panel".
20A At the end of section 610
Add:
When a designated body is a managed investment scheme
(5) For the purposes of the application of this section in relation to a designated body that is a managed investment scheme:
(a) a reference to voting shares in the designated body is taken to be a reference to voting interests in the scheme; and
(b) a reference to the election of directors of the designated body is taken to be a reference to:
(i) if the scheme is a registered scheme--the appointment of a responsible entity for the scheme; or
(ii) if the scheme is not a registered scheme--the appointment of a person to the office (by whatever name it is known) in relation to the scheme that corresponds most closely to the office of responsible entity of a registered scheme; and
(c) a reference to the designated body's constitution is taken to be a reference to the scheme's constitution.
Meaning of designated body
(6) In this section:
"designated body" means:
(a) a body; or
(b) a managed investment scheme.
20B Subsection 629(2)
Omit all the words after "merely because" (including the note), substitute "of paragraph 12(2)(a)".
21 Subsection 650B(2)
Omit "The person is entitled to receive the improved consideration immediately, or immediately after the exercise of the election.".
22 After subsection 650B(2)
Insert:
(2A) The person is entitled to receive the improved consideration immediately, subject to the following paragraphs:
(a) if the time for payment of the consideration in accordance with subsection 620(2) has not yet occurred, the person is not entitled to receive the improved consideration until that time;
(b) if the person has to make an election before being entitled to the improved consideration, the person is not entitled to receive the improved consideration until the later of:
(i) the time when the election is made; and
(ii) the time applicable under paragraph (a).
23 Division 2 of Part 6.10 (heading)
Repeal the heading, substitute:
Division 2 -- The Takeovers Panel
24 Section 664B
After "and", insert ", subject to subsection (2),".
25 At the end of section 664B
Add:
(2) The 90% holder may pay different amounts for the securities in the class acquired if the differences are attributable to either or both of the following:
(a) the fact that there are differences in the accrued dividend or distribution entitlements of the securities;
(b) the fact that there are differences in the amounts paid up, or that remain unpaid, on the securities.
26 Subsections 670C(2) and (3)
Omit "takeover period", substitute "bid period or objection period".
27 Paragraph 708(13)(a)
Omit "company" (wherever occurring), substitute "body".
Note: The heading to section 720 " Consents for issue offers " is omitted.
Part 2 -- Telephone monitoring during takeovers
28 Section 9 (at the end of the definition of books )
Add:
; but does not include an index or recording made under Subdivision D of Division 5 of Part 6.5.
29 At the end of Division 5 of Part 6.5 of Chapter 6
Add:
Subdivision D -- Telephone monitoring
648J Requirement to record telephone calls made during bid period
(1) The bidder or target (the recorder ) must make a clear sound recording of all telephone calls the recorder makes during the bid period:
(a) to a person (the holder ) who holds:
(i) securities in the bid class; or
(ii) if the bid extends to securities that come to be in the bid class due to the conversion of or exercise of rights attached to other securities--those other securities;
(b) to discuss the takeover bid (whether or not for some other purpose as well).
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(1A) If the recorder invites the holder to call the recorder to discuss the takeover bid (whether or not for some other purpose as well), then the recorder must make a clear sound recording of all telephone calls that:
(a) the holder makes to the recorder during the bid period; and
(b) are made by the holder to discuss the takeover bid (whether or not for some other purpose as well).
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) A person who is involved in a contravention of subsection (1) contravenes this subsection.
Note 1: Section 79 defines involved .
Note 2: A contravention of this subsection is an offence (see subsection 1311(1)).
(3) Subsection (1) or (1A) does not apply if the holder is a wholesale holder.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code .
(4) A holder of securities is a wholesale holder if:
(a) the value of the securities equals or exceeds the amount specified in the regulations made for the purposes of this paragraph; or
(b) a qualified accountant has given the holder a certificate referred to in paragraph 761G(7)(c) within the preceding 6 months; or
(c) the holder is a professional investor; or
(d) the holder is a person, or a member of a class of persons, prescribed in the regulations made for the purposes of this paragraph.
648K Requirement to notify holder that call is being recorded
The recorder must notify the holder that the call is being recorded for the purposes of this Act.
Note: The recorder will commit an offence under the Telecommunications (Interception) Act 1979 if the recorder fails to notify the holder.
The recorder must mark the medium in which the recording is stored so as to identify:
(a) the parties to the conversation; and
(b) the date and time it was made.
Note: Failure to comply with this section is an offence (see subsection 1311(1)).
(1) The recorder must create an index (in electronic form or otherwise) of all recordings made by the recorder in relation to the takeover bid.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The index must state in relation to each recording:
(a) the parties to the conversation; and
(b) the time and date the recording was made; and
(c) the exact place where the recording is being stored; and
(d) any other matter required by the regulations to be stated in the index.
(3) The following (the recording custodian ) must maintain the index:
(a) if paragraph (b) or (c) does not apply--the recorder;
(b) if the recorder has been wound up--each person who was a director of the recorder immediately before it was wound up;
(c) any other person who is required by the regulations to do so.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
648N Keeping the index and storing the recordings
Index
(1) If the recording custodian has a registered office, the custodian must keep the index at that office.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The recording custodian must securely keep the index in a manner that protects it from:
(a) misuse and loss; and
(b) unauthorised access, modification and disclosure.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(3) The recording custodian must keep the index in the way prescribed by regulations made for the purposes of this subsection.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Recording
(4) The recording custodian must store the recording at the place specified in the index.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(5) To avoid doubt, the recording custodian may change the place where the recording is stored.
Note: If the recording custodian changes the place where the recording is stored, the custodian must update the index under section 648M to state the new storage place of the recording.
(6) The recording custodian must securely store the recording in a manner that protects it from:
(a) misuse, loss and modification; and
(b) unauthorised access and disclosure.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(7) The recording custodian must store the recording in the way prescribed by regulations made for the purposes of this subsection.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
648P Retention and destruction of index and recordings
(1) The recording custodian must keep the index and recording for 12 months after the end of the bid period or such longer period as is determined by ASIC in writing.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) ASIC must notify the recording custodian in writing of a determination it makes under subsection (1).
(3) The recording custodian must destroy the index and recording on the day after the last day they are required to be kept under subsection (1).
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
648Q Access to index and recordings
Index
(1) The recording custodian must not use, or disclose the contents of, the entries in the index if it is not necessary to do so for the purpose of ensuring compliance with the Corporations legislation.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The recording custodian must not allow another person to look at the entries in the index if subsection (3) does not require the custodian to do so.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(3) The recording custodian must, for the purpose of ensuring compliance with the Corporations legislation, allow:
(a) if the recording custodian is not the recorder--the recorder, or a person authorised in writing by the recorder, to look at the entries in the index; and
(b) the holder who was party to the telephone call, or a person authorised in writing by the holder, to look at the entry in the index that relates to the recording of the call; and
(c) if Division 3 of Part 3 of the Australian Securities and Investments Commission Act 2001 requires the custodian to allow ASIC to see the entries in the index--ASIC; and
(d) if the court has made an order (including an order to produce the index in court) requiring the custodian to allow a person or persons to see the entries in the index, or a specific entry in the index--that person or those persons to look at the entries or the specific entry.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4) A person who has looked at an entry in the index must not use, or disclose the contents of, the entry if it is not necessary to do so for the purpose of ensuring compliance with the Corporations legislation.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(5) The recording custodian must not give possession of the index to another person if:
(a) the court does not order the custodian to do so; and
(b) Division 3 of Part 3 of the Australian Securities and Investments Commission Act 2001 does not require the custodian to do so.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Recording
(6) The recording custodian must not use, or disclose the contents of, the recording if it is not necessary to do so for the purpose of ensuring compliance with the Corporations legislation.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(7) The recording custodian must not allow another person to listen to the recording if subsection (8) does not require the custodian to do so.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(8) The recording custodian must, for the purpose of ensuring compliance with the Corporations legislation, allow the following persons to listen to the recording:
(a) if the recording custodian is not the recorder--the recorder, or a person authorised in writing by the recorder;
(b) the holder who was party to the telephone call, or a person authorised in writing by the holder;
(c) if Division 3 of Part 3 of the Australian Securities and Investments Commission Act 2001 requires the custodian to allow ASIC to listen to the recording--ASIC;
(d) if the court has made an order (including an order to produce the recording in court) requiring the custodian to allow a person or persons to listen to the recording--that person or those persons.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(9) A person who has listened to the recording must not use, or disclose the contents of, the recording if it is not necessary to do so for the purpose of ensuring compliance with the Corporations legislation.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(10) The recording custodian must not give possession of the recording to another person if:
(a) the court does not order the custodian to do so; and
(b) Division 3 of Part 3 of the Australian Securities and Investments Commission Act 2001 does not require the custodian to do so.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Regulations
(11) The regulations may prescribe the way in which the recording custodian is to allow a person to access the index or recording under this section, and may allow the custodian to require a person to pay a reasonable fee for such access.
Court powers
(12) The court may make an order requiring the recording custodian:
(a) to allow a person to look at the entries, or a specific entry, in the index; or
(b) to allow a person to listen to the recording; or
(c) to require the custodian to produce the index or recording in court; or
(d) to require the custodian to give possession of the index or recording to another person.
648R Copying the index or recording
(1) A person must not make a copy of an entry in the index or the recording if the person is not authorised to do so under Division 3 of Part 3 of the Australian Securities and Investments Commission Act 2001 .
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The recording custodian must not allow a person to make a copy of an entry in the index or the recording if the person is not authorised to do so under Division 3 of Part 3 of the Australian Securities and Investments Commission Act 2001 .
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
648S Tampering with the index or recording
Index
(1) A person must not alter or interfere with the index other than for the purpose of maintaining it under section 648M.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(2) The recording custodian must not allow a person to alter or interfere with the index other than for the purpose of maintaining it under section 648M.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
Recording
(3) A person must not alter or interfere with the recording.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
(4) The recording custodian must not allow a person to alter or interfere with the recording.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
648T Index and recording to be a book for some purposes
The index and recording is a book for the purposes of Division 3 of Part 3, and section 67, of the Australian Securities and Investments Commission Act 2001 .
648U Application of Criminal Code applies to offences
The Criminal Code applies to all offences based on the provisions of this Subdivision.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For the meaning of offence based on a provision, see the definition in section 9.
30 Schedule 3 (after table item 201)
Insert:
201A | Subsections 648J(1), (1A) and (2) | 50 penalty units or imprisonment for 6 months, or both. |
201B | Section 648L | 50 penalty units. |
201C | Subsections 648M(1) and (3) | 50 penalty units. |
201D | Subsection 648N(1) | 50 penalty units. |
201E | Subsection 648N(2) | 50 penalty units or imprisonment for 6 months, or both. |
201F | Subsections 648N(3) and (4) | 50 penalty units. |
201G | Subsection 648N(6) | 50 penalty units or imprisonment for 6 months, or both. |
201H | Subsection 648N(7) | 50 penalty units. |
201J | Subsections 648P(1) and (3) | 50 penalty units. |
201K | Subsections 648Q(1), (2), (3), (4), (5), (6), (7), (8), (9) and (10) | 50 penalty units. |
201L | Subsections 648R(1) and (2) | 50 penalty units or imprisonment for 6 months, or both. |
201M | Subsections 648S(1), (2), (3) and (4) | 100 penalty units or imprisonment for 2 years, or both. |
Notes to the Financial Services Reform Act 2001
Note 1
Act No. 122, 2001; assented to 27 September 2001 .
Commencement: Sections 1, 2 and
Schedule 3 (items 1-27): Royal Assent
Remainder: 11 March 2002 ( see
Gazette 2001, No. GN42).