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Schedule 3—Corporate collective investment vehicles: amendments of other Acts

Schedule 3 Corporate collective investment vehicles: amendments of other Acts

   

Australian Securities and Investments Commission Act 2001

1  Subsection 5(1) (paragraph (a) of the definition of eligible person )

After “body corporate”, insert “(other than a CCIV)”.

2  Subsection 5(1) (after paragraph (a) of the definition of eligible person )

Insert:

                    (aa)  if the first-mentioned person is a CCIV—is or has been:

                              (i)  an officer of the CCIV; or

                             (ii)  an officer of an officer of the CCIV; or

3  Subsection 5(1) (at the end of the definition of eligible person )

Add:

Note:          For paragraph (aa), officer is defined in this subsection.

4  Subsection 5(1) (at the end of the definition of financial service )

Add:

Note:          Some provisions of Chapter 7 of that Act have a modified meaning when applying to CCIVs (see Part 8B.7 of that Act).

5  After paragraph 12BAB(1)(g)

Insert:

                    (ga)  operate the business and conduct the affairs of a CCIV, and the person is the corporate director of the CCIV; or

6  At the end of subsection 12BAB(1)

Add:

Note:          Paragraph (ga) means persons other than the corporate director will not be treated as providing that financial service if they operate the business and conduct the affairs of the CCIV while:

(a)    acting as an agent of the CCIV, or as an agent or employee of the corporate director; or

(b)    taking steps to wind up a sub-fund of the CCIV.

7  After paragraph 12BAB(14)(d)

Insert:

                   (da)  operating as a CCIV;

                   (db)  operating the business and conducting the affairs of a CCIV;

                   (dc)  holding the money or property of a CCIV;

8  At the end of subsection 12BAB(14)

Add:

Note:          Holding the assets of a sub-fund of a CCIV (within the meaning of section 1233H of Corporations Act) is covered by paragraph (dc) and does not constitute providing a custodial or depository service .

9  Paragraph 12GI(2)(b)

After “body corporate”, insert “(other than a CCIV)”.

10  After paragraph 12GI(2)(b)

Insert:

                 or (c)  in the case of a defendant being a CCIV:

                              (i)  an agent, or the corporate director, of the defendant; or

                             (ii)  a director, employee or agent of the corporate director of the defendant;

11  Subsection 59(6)

Repeal the subsection, substitute:

             (6)  A body corporate may be represented at a hearing by:

                     (a)  unless paragraph (b) applies—an officer or employee of the body corporate approved by ASIC; or

                     (b)  if the body corporate is a CCIV—any of the following persons approved by ASIC:

                              (i)  an officer of the CCIV (other than the corporate director of the CCIV);

                             (ii)  an officer or employee of the corporate director of the CCIV.

12  Section 84

Repeal the section, substitute:

84   Requirement made of a body corporate

                   If a provision of this Part empowers a person to make a requirement of a body corporate, the provision also empowers the person to make that requirement of a person who is or has been:

                     (a)  unless paragraph (b) applies—an officer or employee of the body corporate; or

                     (b)  if the body corporate is a CCIV:

                              (i)  an officer of the CCIV; or

                             (ii)  an officer or employee of the corporate director of the CCIV.

13  At the end of Part 3A

Add:

93BA   Undertakings by corporate director of a CCIV

             (1)  ASIC may accept a written undertaking given by the corporate director of a CCIV in connection with a matter:

                     (a)  concerning the CCIV; and

                     (b)  in relation to which ASIC has a power or function under the corporations legislation (other than the excluded provisions).

             (2)  The corporate director may withdraw or vary the undertaking at any time, but only with ASIC’s consent.

             (3)  If ASIC considers that the corporate director has breached any of the terms of the undertaking, ASIC may apply to the Court for an order under subsection (4).

             (4)  If the Court is satisfied that the corporate director has breached a term of the undertaking, the Court may make all or any of the following orders:

                     (a)  an order directing the corporate director to comply with that term of the undertaking;

                     (b)  an order directing the corporate director to transfer to the CCIV an amount up to the amount of any financial benefit that the corporate director has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (c)  any order that the Court considers appropriate directing the corporate director to compensate any person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the Court considers appropriate.

             (5)  ASIC must keep a record of the full text of the undertaking.

             (6)  ASIC must make available to a person who asks for it a copy of the text of the undertaking, but ASIC must delete from the copy information:

                     (a)  that the corporate director has asked it not to release; and

                     (b)  that ASIC is satisfied:

                              (i)  is commercial in confidence; or

                             (ii)  should not be disclosed because it would be against the public interest to do so; or

                            (iii)  consists of personal details of an individual.

             (7)  If ASIC makes available a copy that has information deleted from it, the copy must include a note stating that information has been deleted.

14  After section 243E

Insert:

243F   Treat the corporate director of a CCIV as providing financial services etc. being provided by the CCIV

             (1)  This section applies to a provision of this Act that applies in relation to:

                     (a)  a service, or matter, that is a financial service for the purposes of that provision; or

                     (b)  a financial services business; or

                     (c)  a matter that is prescribed by the regulations for the purposes of this paragraph.

General rule

             (2)  For the purposes of that provision of this Act:

                     (a)  treat any conduct engaged in by, or on behalf of, a CCIV as also being engaged in by, or on behalf of, the corporate director of the CCIV; and

                     (b)  treat any conduct relating to the CCIV that is engaged in by a person (other than the corporate director of the CCIV) as also being engaged in by that person in relation to the corporate director of the CCIV.

             (3)  In subsection (2), conduct means an act, an omission to perform an act or a state of affairs.

Exceptions

             (4)  If the CCIV issues a security in the CCIV, then subsection (2) does not treat the corporate director of the CCIV as also being the issuer of the security.

             (5)  If the CCIV is a participant (within the meaning of Chapter 7 of the Corporations Act) in:

                     (a)  a clearing and settlement facility; or

                     (b)  a financial market;

subsection (2) does not treat the corporate director of the CCIV as also being a participant (within the meaning of Chapter 7 of the Corporations Act) in relation to the facility or market.

             (6)  Subsection (2) does not apply in any circumstances prescribed by the regulations for the purposes of this subsection.

Personal Property Securities Act 2009

15  At the end of section 267

Add:

Effect of winding up of a sub-fund of a CCIV

             (4)  Paragraph (1)(a) applies in relation to a grantor if:

                     (a)  the grantor is a CCIV (within the meaning of the Corporations Act 2001 ); and

                     (b)  the security interest is in personal property that is an asset of a sub-fund of the CCIV (within the meaning of that Act); and

                     (c)  an order is made, or a resolution is passed, for the winding up of the sub-fund.