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Corporations Bill 2001

Part 1.2 Interpretation

Division 1 General

6   Effect of this Part

             (1)  The provisions of this Part have effect for the purposes of this Act, except so far as the contrary intention appears in this Act.

             (2)  This Part applies for the purposes of:

                     (a)  Part 5.7; and

                     (b)  Chapter 5 as applying by virtue of Part 5.7; and

                     (c)  Part 9.2;

as if a reference in this Part to a person or to a body corporate included a reference to a Part 5.7 body.

             (3)  This Part applies for the purposes of Chapter 6 as if a reference in this Part to a body corporate included a reference to a Chapter 6 body.

             (4)  Where, because of Part 11.2, provisions of this Act, as in force at a particular time, continue to apply:

                     (a)  in relation to someone or something; or

                     (b)  for particular purposes;

then, for the purposes of those provisions as so applying:

                     (c)  this Part as in force at that time continues to have effect; and

                     (d)  this Part as in force at a later time does not have effect.

7   Location of other interpretation provisions

             (1)  Most of the interpretation provisions for this Act are in this Part.

             (2)  However, interpretation provisions relevant only to Chapters 6, 7 and 8, respectively, are to be found at the beginning of those Chapters.

             (3)  Also, interpretation provisions relevant to a particular Part, Division or Subdivision may be found at the beginning of that Part, Division or Subdivision.

             (4)  Occasionally, an individual section contains its own interpretation provisions, not necessarily at the beginning.

9   Dictionary

                   Unless the contrary intention appears:

AASB means the Australian Accounting Standards Board.

accounting standard means:

                     (a)  an instrument in force under section 334; or

                     (b)  a provision of such an instrument as it so has effect.

ACN (short for “Australian Company Number”) is the number given by ASIC to a company on registration (see sections 118 and 601BD).

acquire :

                     (a)  in relation to a futures contract—has the meaning given by sections 23, 26, 27 and 28; and

                     (b)  in relation to shares—has, in Chapter 7, the meaning given by section 51.

act includes thing.

adjustment agreement means a standardised agreement the effect of which is that:

                     (a)  a particular person will either be under a Chapter 8 obligation to pay, or will have a Chapter 8 right to receive, an amount of money; and

                     (b)  whether the person will be under such an obligation to pay, or will have such a right to receive, the amount of money will depend on a particular state of affairs existing at a particular future time, including, without limiting the generality of the foregoing, a state of affairs that relates to fluctuations in the value or price of a commodity or other property, or in an index or other factor; and

                     (c)  the amount of money will be calculated in a particular manner by reference to that state of affairs;

whether or not the agreement has any other effect or is capable of being varied or discharged before that future time.

administration , in relation to a company, has the meaning given by:

                     (a)  section 435C; and

                     (b)  section 1381.

administrator :

                     (a)  in relation to a body corporate but not in relation to a deed of company arrangement:

                              (i)  means an administrator of the body or entity appointed under Part 5.3A; and

                             (ii)  has a meaning affected by section 1381; and

                            (iii)  if 2 or more persons are appointed under that Part as administrators of the body or entity—has a meaning affected by paragraph 451A(2)(b); or

                     (b)  in relation to a deed of company arrangement:

                              (i)  means an administrator of the deed appointed under Part 5.3A; and

                             (ii)  if 2 or more persons are appointed under that Part as administrators of the deed—has a meaning affected by paragraph 451B(2)(b).

admit to quotation : securities are admitted to quotation on a stock market of a securities exchange if the exchange has given unconditional permission for quotation of the securities on the stock market.

Advisory Committee means the Companies and Securities Advisory Committee.

affairs , in relation to a body corporate, has, in the provisions referred to in section 53, a meaning affected by that section.

affidavit includes affirmation.

agency means an agency, authority, body or person.

AGM means an annual general meeting of a company that section 250N requires to be held.

agreement means:

                     (a)  in Chapter 6 or 7—a relevant agreement; or

                     (b)  in Chapter 8—a Chapter 8 agreement.

amount includes a nil amount and zero.

ancillary offence , in relation to another offence, means an offence against:

                     (a)  section 5, 6, 7 or 7A of the Crimes Act 1914 ; or

                     (b)  subsection 86(1) of that Act by virtue of paragraph 86(1)(a) of that Act;

being an offence that is related to that other offence.

annual return :

                     (a)  of a company—means the return that subsection 345(1) requires the company to lodge with ASIC; and

                     (b)  of a registered managed investment scheme—means the return that subsection 345(2) requires the responsible entity of the scheme to lodge with ASIC.

appropriate dealer for a market bid means a member of the relevant securities exchange.

approved foreign bank , in relation to a member of a futures organisation, means a bank, established by or under the law of a foreign country, in relation to which there is in force an approval given by the futures organisation in accordance with its business rules (within the meaning of Chapter 8).

approved securities organisation means a body corporate in relation to which an approval under section 770 is in force.

APRA means the Australian Prudential Regulation Authority.

arbitrage transaction means a purchase or sale of securities effected in the ordinary course of trading on a stock market together with an offsetting sale or purchase of those securities effected at the same time, or at as nearly the same time as practicable, in the ordinary course of trading on another stock market for the purpose of obtaining a profit from the difference between the prices of those securities in the 2 stock markets.

ARBN (short for “Australian Registered Body Number”) is the number given by ASIC to a registrable body on registration under Part 5B.2.

arrangement , in Part 5.1, includes a reorganisation of the share capital of a body corporate by the consolidation of shares of different classes, by the division of shares into shares of different classes, or by both of those methods.

ARSN (short for “Australian Registered Scheme Number”) is the number given by ASIC to a registered scheme on registration (see section 601EB).

ASIC means the Australian Securities and Investments Commission.

ASIC Act means the Australian Securities and Investments Commission Act 2001 and includes the regulations made under that Act.

ASIC database means so much of the national companies database kept by ASIC as consists of:

                     (a)  some or all of a register kept by ASIC under this Act; or

                     (b)  information set out in a document lodged under this Act;

but does not include ASIC’s document imaging system.

assets means:

                     (a)  in relation to the holder of a futures brokers licence—all the assets of the holder, whether or not used in connection with a business of dealing in futures contracts; and

                     (b)  in relation to the holder of a dealers licence—all the assets of the holder, whether or not used in connection with a securities business.

associate : the following are the associates of a bidder making a takeover offer, a substantial holder or a 90% holder:

                     (a)  if the bidder or holder is a body corporate:

                              (i)  a body corporate it controls; or

                             (ii)  a body corporate that controls it; or

                            (iii)  a body corporate that is controlled by an entity that controls it;

                     (b)  a person with whom the bidder or holder has, or proposes to enter into, a relevant agreement for the purpose of controlling or influencing the composition of the body’s board or the conduct of the body’s affairs;

                     (c)  a person with whom the bidder or holder is acting, or proposes to act, in concert in relation to the body’s affairs.

Otherwise a person’s associates are determined under sections 10 to 17.

ASX means Australian Stock Exchange Limited.

Australia , when used in a geographical sense, does not include an external Territory.

Note:          Paragraph 17(a) of the Acts Interpretation Act 1901 would otherwise provide that Australia included the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

Australian ADI means:

                     (a)  an ADI (authorised deposit-taking institution) within the meaning of the Banking Act 1959 ; and

                     (b)  a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

Australian bank means an Australian ADI that is permitted under section 66 of the Banking Act 1959 to assume or use:

                     (a)  the word bank, banker or banking; or

                     (b)  any other word (whether or not in English) that is of like import to a word referred to in paragraph (a).

Australian court means a federal court or a court of a State or Territory.

Australian law means a law of the Commonwealth or of a State or Territory.

Australian register of a foreign company means a branch register of members kept under section 601CM.

authorised trustee corporation means a body corporate that is declared by the regulations to be an authorised trustee corporation for the purposes of the provision in which the expression appears.

bank or banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959 .

banker’s books means:

                     (a)  books of an Australian ADI, including documents used in the ordinary business of an Australian bank; or

                     (b)  cheques, orders for the payment of money, bills of exchange and promissory notes in an Australian ADI’s possession; or

                     (c)  scrip in an Australian ADI’s possession, whether by way of pledge or otherwise; or

                     (d)  documents that create or evidence futures contracts and are in an Australian ADI’s possession.

banking corporation means a body corporate that carries on, as its sole or principal business, the business of banking (other than State banking not extending beyond the limits of the State concerned).

banning order means:

                     (a)  in Chapter 7—an order by ASIC in force under Division 5 of Part 7.3; and

                     (b)  in Chapter 8—an order by ASIC in force under Division 5 of Part 8.3.

begin , in relation to a winding up, has the meaning given by Division 1A of Part 5.6.

benefit :

                     (a)  means any benefit, whether by way of payment of cash or otherwise; and

                     (b)  when used in Division 2 of Part 2D.2 (sections 200A to 200J)—means:

                              (i)  a payment or other valuable consideration; or

                             (ii)  an interest in property of any kind; or

                            (iii)  any other benefit.

bid class of securities for a takeover bid is the class of securities to which the securities being bid for belong.

bidder for a takeover bid means the person who makes or proposes to make, or each of the people who make or propose to make, the offers under the bid (whether personally or by an agent or nominee).

Note:          The dealer who announces a market bid is not the bidder; the bidder is the person or people on whose behalf the announcement is made.

bidder’s statement means a bidder’s statement under sections 636 and 637 as supplemented.

bid period :

                     (a)  for an off-market bid—starts when the bidder’s statement is given to the target and ends:

                              (i)  1 month later if no offers are made under the bid; or

                             (ii)  at the end of the offer period; and

                     (b)  for a market bid—starts when the bid is announced to the relevant securities exchange and ends at the end of the offer period.

Board means:

                     (a)  in Part 7.10—the board of SEGC; or

                     (b)  in Part 9.2—the Companies Auditors and Liquidators Disciplinary Board.

board or managerial office (when used in Division 2 of Part 2D.2 (sections 200A to 200J) in relation to a body corporate) means:

                     (a)  an office of director of the body corporate; and

                     (b)  any other office in connection with the management of the body corporate’s affairs that is held by:

                              (i)  a person who also holds an office of director of the body corporate or a related body corporate; or

                             (ii)  a person who has held an office of director of the body corporate or a related body corporate at any time within the 12 months immediately before the loss of, or retirement from, that office.

body means a body corporate or an unincorporated body and includes, for example, a society or association.

body corporate :

                     (a)  includes a body corporate that is being wound up or has been dissolved; and

                     (b)  in this Chapter (except section 66A) and section 206E includes an unincorporated registrable body.

books includes:

                     (a)  a register; and

                     (b)  any other record of information; and

                     (c)  financial reports or financial records, however compiled, recorded or stored; and

                     (d)  a document.

borrower , in relation to a debenture, means the body that is or will be liable to repay money under the debenture.

bought position means:

                     (a)  in relation to a commodity agreement, or in relation to a futures contract, being a commodity agreement—the position of a person who, by virtue of the agreement, is under a Chapter 8 obligation to accept delivery in accordance with the agreement; or

                     (b)  in relation to a futures contract, being an adjustment agreement—the position of a person who, by virtue of the agreement:

                              (i)  will, if the value or worth of the agreement (as determined in accordance with the agreement) as at a particular future time is less by a particular amount than the value or worth of the agreement (as so determined) as at a particular earlier time, be under a Chapter 8 obligation to pay that amount; and

                             (ii)  will, if the value or worth of the agreement (as so determined) as at a particular future time exceeds by a particular amount the value or worth of the agreement (as so determined) as at a particular earlier time, have a Chapter 8 right to receive that amount.

business affairs , in relation to an entity, has a meaning affected by sections 53AA, 53AB, 53AC and 53AD.

business day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned.

buy-back by a company means the acquisition by the company of shares in itself.

buy-back agreement by a company means an agreement by the company to buy back its own shares (whether the agreement is conditional or not).

Capital Territory means the Australian Capital Territory and the Jervis Bay Territory.

carry on has a meaning affected by Division 3.

cash management trust interest means an interest that:

                     (a)  is an interest in a registered scheme; and

                     (b)  relates to an undertaking of the kind commonly known as a cash management trust.

cause includes procure.

certified means:

                     (a)  in relation to a copy of, or extract from, a document—certified by a statement in writing to be a true copy of, or extract from, the document; or

                     (b)  in relation to a translation of a document—certified by a statement in writing to be a correct translation of the document into English.

Chapter 8 agreement means:

                     (a)  a relevant agreement; or

                     (b)  a proposed relevant agreement; or

                     (c)  a relevant agreement as varied, or as proposed to be varied; or

                     (d)  where a relevant agreement has been varied—the relevant agreement as in force at any time before the variation; or

                     (e)  where a relevant agreement has been discharged—the relevant agreement as in force at any time before its discharge.

Chapter 8 obligation has the meaning given by section 55.

Chapter 8 right has the meaning given by section 55.

charge means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise.

chargeable matter has the same meaning as in the Corporations (Fees) Act 2001 .

chargee means the holder of a charge and includes a person in whose favour a charge is to be given or executed, whether on demand or otherwise, under an agreement.

civil matter means a matter other than a criminal matter.

civil penalty disqualification has the meaning given by subsection 91(4A).

civil penalty order means any of the following:

                     (a)  a declaration of contravention under section 1317F;

                     (b)  a pecuniary penalty order under section 1317G;

                     (c)  a compensation order under section 1317H;

                     (d)  an order under section 206C disqualifying a person from managing corporations.

civil penalty provision has the meaning given in subsection 1317E(1).

class has:

                     (a)  in relation to futures contracts—a meaning affected by subsection 72(3); and

                     (b)  in relation to shares or interests in a managed investment scheme—a meaning affected by section 57; and

                     (c)  when used in relation to securities for the purposes of Chapter 6, 6A or 6C—a meaning affected by subsection 605(2).

clearing house means:

                     (a)  in relation to a body corporate:

                              (i)  in any case—a person who provides, or proposes to provide, clearing house facilities for a futures market conducted by that body; or

                             (ii)  in the case of a futures exchange—a body corporate in relation to which an approval as a clearing house for that futures exchange is in force under subsection 1131(2); and

                     (b)  in relation to a futures market:

                              (i)  in any case—a person who provides, or proposes to provide, clearing house facilities for that futures market; or

                             (ii)  in the case of a futures market of a futures exchange—a body corporate in relation to which an approval as a clearing house for that futures exchange is in force under subsection 1131(2).

clearing house facilities , in relation to a futures market, means facilities for the registration of futures contracts acquired or disposed of on that futures market.

client , in relation to a futures broker, means, except in Division 2 of Part 8.3, a person on whose behalf the broker deals, or from whom the broker accepts instructions to deal, in futures contracts.

clients’ segregated account , in relation to a person who is a member of a futures organisation, means an account that:

                     (a)  the person maintains, whether in Australia or elsewhere, with:

                              (i)  an Australian ADI; or

                             (ii)  an approved foreign bank in relation to the person; and

                     (b)  is maintained for the sole purpose of containing money deposited by the person into the account under section 1209.

close out , in relation to a futures contract, means:

                     (a)  discharge the Chapter 8 obligations of the person in the bought position, or sold position, under the futures contract as a result of the matching up of the futures contract with a futures contract of the same kind under which the person has assumed an offsetting sold position, or offsetting bought position, as the case may be; or

                     (b)  otherwise discharge the Chapter 8 obligations of a party to the futures contract.

coastal sea :

                     (a)  in relation to Australia—means:

                              (i)  the territorial sea of Australia; and

                             (ii)  the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;

                            and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; and

                     (b)  in relation to a State or Territory—means so much of the coastal sea of Australia as is within the area described in Schedule 2 to the Petroleum (Submerged Lands) Act 1967 under the heading that refers to that State or Territory.

commence , in relation to a winding up, has the meaning given by Division 1A of Part 5.6.

commencement , in relation to an accounting standard, means:

                     (a)  in the case of an accounting standard as originally in effect—the time when the accounting standard took effect; or

                     (b)  in the case of an accounting standard as varied by a particular provision of an instrument made under section 334—the time when that provision took effect.

Commission delegate has the same meaning as in the ASIC Act.

committee of creditors , in relation to a company under administration, means a committee of creditors of the company appointed at a meeting convened under section 436E.

commodity means:

                     (a)  any thing that is capable of delivery pursuant to an agreement for its delivery; or

                     (b)  without limiting the generality of paragraph (a), an instrument creating or evidencing a thing in action.

commodity agreement means a standardised agreement the effect of which is that:

                     (a)  a person is under a Chapter 8 obligation to make delivery; or

                     (b)  a person is under a Chapter 8 obligation to accept delivery;

at a particular future time of a particular quantity of a particular commodity for a particular price or for a price to be calculated in a particular manner, whether or not:

                     (c)  the subject matter of the agreement is in existence; or

                     (d)  the agreement has any other effect; or

                     (e)  the agreement is capable of being varied or discharged before that future time.

Commonwealth authority means an authority or other body (whether incorporated or not) that is established or continued in existence by or under an Act.

company means a company registered under this Act and:

                     (a)  in Chapter 2K (other than sections 273A to 273E), includes a registrable body that is registered under Division 1 or 2 of Part 5B.2 of this Act; and

                     (b)  in sections 273A to 273E, includes a registered body that carries on business outside its place of origin; and

                     (c)  in Parts 5.7B and 5.8 (except sections 595 and 596), includes a Part 5.7 body; and

                     (d)  in Part 5B.1, includes an unincorporated registrable body.

company limited by guarantee means a company formed on the principle of having the liability of its members limited to the respective amounts that the members undertake to contribute to the property of the company if it is wound up.

company limited by shares means a company formed on the principle of having the liability of its members limited to the amount (if any) unpaid on the shares respectively held by them.

condition , in relation to a licence, means a condition or restriction to which the licence is subject, or will be subject, as the case requires.

conduct :

                     (a)  in relation to a futures market, a stock market, or any other market, exchange, place or facility—includes maintain or provide; and

                     (b)  in Chapter 7—has a meaning affected by section 762.

connected entity , in relation to a corporation, means:

                     (a)  a body corporate that is, or has been, related to the corporation; or

                     (b)  an entity that is, or has been, connected (as defined by section 64B) with the corporation.

consolidated entity means a company, registered managed investment scheme or disclosing entity together with all the entities it is required by the accounting standards to include in consolidated financial statements.

constitution means (depending on the context):

                     (a)  a company’s constitution, which (where relevant) includes rules and consequential amendments that are part of the company’s constitution because of the Life Insurance Act 1995 ; or

                     (b)  a managed investment scheme’s constitution; or

                     (c)  in relation to any other kind of body:

                              (i)  the body’s charter or memorandum; or

                             (ii)  any instrument or law (other than this Act) constituting, or defining the constitution of, the body or governing the activities of the body or its members.

Note:          The Life Insurance Act 1995 has rules about how benefit fund rules become part of a company’s constitution. They override this Act. See Subdivision 2 of Division 4 of Part 2A of that Act.

continuous disclosure notice means:

                     (a)  a document used to notify a securities exchange of information relating to a body under provisions of the securities exchange’s listing rules referred to in subsection 1001A(1); or

                     (b)  a document under section 1001B lodged in relation to the body.

continuously quoted securities are securities that:

                     (a)  are in a class of securities that were quoted ED securities at all times in the 12 months before the date of the prospectus; and

                     (b)  are securities of an entity that was not covered by any of the following at any time in that 12 months:

                              (i)  an exemption under section 111AS or 111AT, or a modification under section 111AV;

                             (ii)  an exemption under paragraph 741(1)(a), or a 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;

and, for these purposes, securities are not in different classes merely because of a temporary difference in the dividend, or distribution rights, attaching to the securities or because different amounts have been paid up on the securities.

contributing member , in relation to a futures organisation, means:

                     (a)  in the case of a futures exchange—a member or member organisation of the futures exchange; or

                     (b)  in the case of a futures association:

                              (i)  a member of that futures association that is a member of no futures exchange; or

                             (ii)  a member organisation of that futures association that is a member organisation of no futures exchange.

contributory means:

                     (a)  in relation to a company (other than a no liability company):

                              (i)  a person liable as a member or past member to contribute to the property of the company if it is wound up; and

                             (ii)  for a company with share capital—a holder of fully paid shares in the company; and

                            (iii)  before the final determination of the persons who are contributories because of subparagraphs (i) and (ii)—a person alleged to be such a contributory; and

                     (b)  in relation to a Part 5.7 body:

                              (i)  a person who is a contributory by virtue of section 586; and

                             (ii)  before the final determination of the persons who are contributories by virtue of that section—a person alleged to be such a contributory; and

                     (c)  in relation to a no liability company—subject to section 385, a member of the company.

control has the meaning given by section 50AA.

control day , in relation to a controller of property of a corporation, means:

                     (a)  unless paragraph (b) applies:

                              (i)  in the case of a receiver, or receiver and manager, of that property—the day when the receiver, or receiver and manager, was appointed; or

                             (ii)  in the case of any other person who is in possession, or has control, of that property for the purpose of enforcing a charge—the day when the person entered into possession, or took control, of property of the corporation for the purpose of enforcing that charge; or

                     (b)  if the controller became a controller of property of the corporation:

                              (i)  to act with an existing controller of such property; or

                             (ii)  in place of a controller of such property who has died or ceased to be a controller of such property;

                            the day that is, because of any other application or applications of this definition, the control day in relation to the controller referred to in subparagraph (i) or (ii).

controller , in relation to property of a corporation, means:

                     (a)  a receiver, or receiver and manager, of that property; or

                     (b)  anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a charge.

convertible note has the same meaning as in Division 3A of Part III of the Income Tax Assessment Act 1936 .

convertible securities : securities are convertible into another class of securities if the holder may have the other class of securities issued to them by the exercise of rights attached to those securities. An option may be a convertible security even if it is non-renounceable.

corporation has the meaning given by section 57A.

Corporations legislation means:

                     (a)  this Act; and

                     (b)  the ASIC Act; and

                     (c)  rules of court made by the Federal Court, the Supreme Court of the Capital Territory, or the Family Court, because of a provision of this Act; and

                     (d)  rules of court applied by the Supreme Court, or a State Family Court, of a State when exercising jurisdiction conferred by Division 1 of Part 9.6A (including jurisdiction conferred by virtue of any previous application or applications of this paragraph).

court has the meaning given by section  58AA .

Court has the meaning given by section 58AA.

court of summary jurisdiction means any justice or justices of the peace or other magistrate sitting as a court for the making of summary orders or the summary punishment of offences:

                     (a)  under a law of the Commonwealth or of a State or Territory; or

                     (b)  by virtue of his or her commission or their commissions.

creditors’ voluntary winding up means a winding up under Part 5.5, other than a members’ voluntary winding up.

current market bid price for securities covered by a market bid is the price specified in the announcement of the bid as increased or decreased during the offer period.

daily newspaper means a newspaper that is ordinarily published on each day that is a business day in the place where the newspaper is published, whether or not the newspaper is ordinarily published on other days.

date of a takeover bid is:

                     (a)  for an off-market bid—the date on which offers are first made under the bid; or

                     (b)  for a market bid—the date on which the bid is announced to the relevant securities exchange.

deal :

                     (a)  in relation to a futures contract—has the meaning given by Division 4; and

                     (b)  in relation to securities—subject to subsection 93(4), means (whether as principal or agent) acquire, dispose of, subscribe for or underwrite the securities, or make or offer to make, or induce or attempt to induce a person to make or to offer to make, an agreement:

                              (i)  for or with respect to acquiring, disposing of, subscribing for or underwriting the securities; or

                             (ii)  the purpose or purported purpose of which is to secure a profit or gain to a person who acquires, disposes of, subscribes for or underwrites the securities or to any of the parties to the agreement in relation to the securities.

dealer means:

                     (a)  a person who carries on a securities business; or

                     (b)  2 or more persons who together carry on a securities business.

dealers licence means a dealers licence granted under Part 7.3.

debenture of a body means a chose in action that includes an undertaking by the body to repay as a debt money deposited with or lent to the body. The chose in action may (but need not) include a charge over property of the body to secure repayment of the money. However, a debenture does not include:

                     (a)  an undertaking to repay money deposited with or lent to the body by a person if:

                              (i)  the person deposits or lends the money in the ordinary course of a business carried on by the person; and

                             (ii)  the body receives the money in the ordinary course of carrying on a business that neither comprises nor forms part of a business of borrowing money and providing finance; or

                     (b)  an undertaking by an Australian ADI to repay money deposited with it, or lent to it, in the ordinary course of its banking business; or

                     (c)  an undertaking to pay money under:

                              (i)  a cheque; or

                             (ii)  an order for the payment of money; or

                            (iii)  a bill of exchange; or

                     (d)  an undertaking to pay money under a promissory note that has a face value of at least $50,000; or

                     (e)  an undertaking by a body corporate to pay money to a related body corporate; or

                      (f)  an undertaking to repay money that is prescribed by the regulations.

For the purposes of this definition, if a chose in action that includes an undertaking by a body to pay money as a debt is offered as consideration for the acquisition of securities under an off-market takeover bid, or is issued under a compromise or arrangement under Part 5.1, the undertaking is taken to be an undertaking to repay as a debt money deposited with or lent to the body.

decision period , in relation to a chargee in relation to a charge on property of a company under administration, means the period beginning on the day when:

                     (a)  if notice of the appointment of the administrator must be given to the chargee under subsection 450A(3)—such notice is so given; or

                     (b)  otherwise—the administration begins;

and ending at the end of the tenth business day after that day.

deed includes a document having the effect of a deed.

deed of company arrangement means a deed of company arrangement executed under Part 5.3A or such a deed as varied and in force from time to time.

de facto spouse , in relation to a person, means an individual of the opposite sex to that person who is living with that person as his or her spouse on a genuine domestic basis although not legally married to that person.

defalcation , in Part 7.9, includes a contravention of subsection 870(3).

defeating condition for a takeover bid means a condition that:

                     (a)  will, in circumstances referred to in the condition, result in the rescission of, or entitle the bidder to rescind, a takeover contract; or

                     (b)  prevents a binding takeover contract from resulting from an acceptance of the offer unless or until the condition is fulfilled.

defect , in relation to a statutory demand, includes:

                     (a)  an irregularity; and

                     (b)  a misstatement of an amount or total; and

                     (c)  a misdescription of a debt or other matter; and

                     (d)  a misdescription of a person or entity.

deregistered means:

                     (a)  in relation to a company—deregistered under Chapter 5A; and

                     (b)  in relation to any other body corporate—deregistered in a way that results in the body corporate ceasing to exist.

director of a company or other body means:

                     (a)  a person who:

                              (i)  is appointed to the position of a director; or

                             (ii)  is appointed to the position of an alternate director and is acting in that capacity;

                            regardless of the name that is given to their position; and

                     (b)  unless the contrary intention appears, a person who is not validly appointed as a director if:

                              (i)  they act in the position of a director; or

                             (ii)  the directors of the company or body are accustomed to act in accordance with the person’s instructions or wishes.

Subparagraph (b)(ii) does not apply merely because the directors act on advice given by the person in the proper performance of functions attaching to the person’s professional capacity, or the person’s business relationship with the directors or the company or body.

Note:          Paragraph (b)—Contrary intention—Examples of provisions for which a person referred to in paragraph (b) would not be included in the term “director” are:

·        section 249C (power to call meetings of a company’s members)

·        subsection 251A(3) (signing minutes of meetings)

·        section 205B (notice to ASIC of change of address).

disclosing entity has the meaning given by section 111AC.

disclosure document for an offer of securities means:

                     (a)  a prospectus for the offer; or

                     (b)  a profile statement for the offer; or

                     (c)  an offer information statement for the offer.

discretionary account has the meaning given by section 61.

dispose of a futures contract has the meaning given by sections 24, 26, 27 and 28. For the purposes of Chapter 6, a person who has a relevant interest in securities disposes of the securities if, and only if, they cease to have a relevant interest in the securities.

document of title , in relation to securities, includes an instrument of transfer relating to the securities.

domestic corporation means a corporation that is incorporated or formed in Australia or an external Territory.

ED securities has the meaning given by section 111AD.

eligible applicant , in relation to a corporation, means:

                     (a)  ASIC; or

                     (b)  a liquidator or provisional liquidator of the corporation; or

                     (c)  an administrator of the corporation; or

                     (d)  an administrator of a deed of company arrangement executed by the corporation; or

                     (e)  a person authorised in writing by ASIC to make:

                              (i)  applications under the Division of Part 5.9 in which the expression occurs; or

                             (ii)  such an application in relation to the corporation.

eligible commodity agreement means a commodity agreement (in this definition called the relevant agreement ), where, at the time when the relevant agreement:

                     (a)  unless paragraph (b) applies—is entered into; or

                     (b)  if the relevant agreement is not a commodity agreement at the time when it is entered into—becomes a commodity agreement;

it appears likely, having regard to all relevant circumstances (other than the respective intentions of the person in the sold position, and the person in the bought position, under the relevant agreement), including, without limiting the generality of the foregoing:

                     (c)  the provisions of any agreement; and

                     (d)  the rules and practices of any market; and

                     (e)  the manner in which the respective Chapter 8 obligations of persons in sold positions, and persons in bought positions, under agreements of the same kind as the first-mentioned agreement are generally discharged;

that:

                      (f)  the Chapter 8 obligation of the person in the sold position under the relevant agreement to make delivery in accordance with the relevant agreement will be discharged otherwise than by the person so making delivery; or

                     (g)  the Chapter 8 obligation of the person in the bought position under the relevant agreement to accept delivery in accordance with the relevant agreement will be discharged otherwise than by the person so accepting delivery; or

                     (h)  the person in the sold position, or bought position, under the relevant agreement will assume an offsetting bought position, or offsetting sold position, as the case may be, under an agreement of the same kind as the relevant agreement.

eligible exchange-traded option means a contract that is entered into on a futures market of a futures exchange and under which a party acquires from another party an option or right, exercisable at or before a specified time:

                     (a)  to purchase from, or to sell to, that other party a specified quantity of a specified commodity at a price specified in, or to be determined in accordance with, the contract; or

                     (b)  to be paid by that other party an amount of money to be determined by reference to the amount by which a specified number is greater or less than the number of a specified index, being the Australian Stock Exchanges All Ordinaries Price Index or a prescribed index, as at the time when the option or right is exercised.

eligible money market dealer means a body corporate in respect of which a declaration is in force under section 65.

eligible securities conduct means conduct in the course of, for the purposes of, or otherwise in connection with:

                     (a)  dealing in securities; or

                     (b)  advising a person about securities; or

                     (c)  giving to a person a securities report.

emoluments means the amount or value of any money, consideration or benefit given, directly or indirectly, to a director of a body corporate in connection with the management of affairs of the body or of any holding company or subsidiary of the body, whether as a director or otherwise, but does not include amounts in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the body.

employee share scheme for a company means a scheme under which shares (or units in shares) in the company or a holding company may be acquired:

                     (a)  by, or for the benefit of:

                              (i)  employees of the company, or of a related body corporate; or

                             (ii)  directors of the company, or of a related body corporate, who hold a salaried employment or office in the company or in a related body corporate; or

                     (b)  by a corporation all of whose members are:

                              (i)  employees of the company, or of a related body corporate; or

                             (ii)  directors of the company, or of a related body corporate, who hold a salaried employment or office in the company or in a related body corporate.

employee share scheme buy-back means a buy-back under a scheme that:

                     (a)  has as its purpose the acquisition of shares in a company by, or on behalf of:

                              (i)  employees of the company, or of a related body corporate; or

                             (ii)  directors of the company, or a related body corporate, who hold a salaried employment or office in the company or in a related body corporate; and

                     (b)  has been approved by the company in general meeting.

enforce , in relation to a charge on property of a company under administration, includes:

                     (a)  appoint a receiver of property of the company under a power contained in an instrument relating to the charge; or

                     (b)  obtain an order for the appointment of a receiver of such property for the purpose of enforcing the charge; or

                     (c)  enter into possession, or assume control, of such property for that purpose; or

                     (d)  appoint a person so to enter into possession or assume control (whether as agent for the chargee or for the company); or

                     (e)  exercise, as chargee or as a receiver or person so appointed, a right, power or remedy existing because of the charge, whether arising under an instrument relating to the charge, under a written or unwritten law, or otherwise.

enforcement process , in relation to property, means:

                     (a)  execution against that property; or

                     (b)  any other enforcement process in relation to that property that involves a court or a sheriff.

enter into : a person who:

                     (a)  enters into, or becomes a party to, a relevant agreement in relation to voting shares or other securities; or

                     (b)  exercises an option to have voting shares or other securities issued or granted;

is taken to enter into a transaction in relation to the shares or securities. Enter into , in relation to a futures contract, has a meaning affected by subsection 72(2).

entitlements of an employee of a company has the meaning given by subsections 596AA(2) and (3).

entity : for the purposes of Chapter 2E an entity is any of the following:

                     (a)  a body corporate;

                     (b)  a partnership;

                     (c)  an unincorporated body;

                     (d)  an individual;

                     (e)  for a trust that has only 1 trustee—the trustee;

                      (f)  for a trust that has more than 1 trustee—the trustees together.

Otherwise, entity has the meaning given by section 64A.

equal access scheme has the meaning given by subsections 257B(2) and (3).

event includes any happening, circumstance or state of affairs.

examinable affairs , in relation to a corporation means:

                     (a)  the promotion, formation, management, administration or winding up of the corporation; or

                     (b)  any other affairs of the corporation (including anything that is included in the corporation’s affairs because of section 53); or

                     (c)  the business affairs of a connected entity of the corporation, in so far as they are, or appear to be, relevant to the corporation or to anything that is included in the corporation’s examinable affairs because of paragraph (a) or (b).

examinable assets and liabilities , in relation to an entity, means all of the following:

                     (a)  the entity’s property and assets:

                              (i)  whether present or future; and

                             (ii)  whether held alone or jointly with any other person or persons; and

                            (iii)  whether or not held as agent, bailee or trustee;

                     (b)  the entity’s liabilities:

                              (i)  whether present or future; and

                             (ii)  whether actual or contingent; and

                            (iii)  whether owed alone or jointly with any other person or persons; and

                            (iv)  whether or not owed as trustee.

examinable officer , in relation to a corporation, means:

                     (a)  a director, secretary or executive officer of the corporation; or

                     (b)  a receiver, or receiver and manager, of property of the corporation (whether appointed under a provision contained in an instrument, or by a court); or

                     (c)  an administrator of the corporation; or

                     (d)  an administrator of a deed of company arrangement executed by the corporation; or

                     (e)  a liquidator or provisional liquidator of the corporation (whether or not appointed by a court); or

                      (f)  a trustee or other person administering a compromise or arrangement made between the corporation and any other person or persons.

examinable operations , in relation to an entity, means all of the following:

                     (a)  the entity’s business, trading, transactions and dealings:

                              (i)  whether alone or jointly with any other entity or entities; and

                             (ii)  whether or not as agent, bailee or trustee;

                     (b)  the entity’s profits, income and receipts;

                     (c)  the entity’s losses, outgoings and expenditure.

Exchange means Australian Stock Exchange Limited.

exchange member , in relation to a futures exchange, means:

                     (a)  a corporation that is a member of the futures exchange; or

                     (b)  a partnership that is a member of the futures exchange; or

                     (c)  a member of such a partnership.

Exchange subsidiary , in Chapter 7, means a securities exchange that is a subsidiary of the Exchange.

exchange traded option means an option declared by a securities exchange to be an exchange traded option.

excluded security means:

                     (a)  where:

                              (i)  there is attached to a share or debenture a right to participate in a retirement village scheme; and

                             (ii)  each of the other rights, and each interest (if any), attached to the share or debenture is a right or interest that is merely incidental to the right referred to in subparagraph (i);

                            the share or debenture or a unit in the share or debenture; or

                     (b)  an interest in a managed investment scheme constituted by a right to participate in a retirement village scheme.

executive officer of a body corporate means a person who is concerned in, or takes part in, the management of the body (regardless of the person’s designation and whether or not the person is a director of the body).

exempt body has the meaning given by section 66A.

exempt broker means a person who is an exempt broker by virtue of section 67.

exempt dealer has the meaning given by section 68.

exempt foreign company means a foreign company of a kind referred to in subsection 601CK(8), whether or not Division 2 of Part 5B.2 applies to it.

exempt futures market means a futures market in relation to which a declaration under section 1127 is in force.

exempt investment adviser has the meaning given by section 68.

exempt public authority means a body corporate that is incorporated within Australia or an external Territory and is:

                     (a)  a public authority; or

                     (b)  an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.

exempt stock market means a stock market in relation to which, or a stock market in a class of stock markets in relation to which, a declaration is in force under section 771.

expert , in relation to a matter, means a person whose profession or reputation gives authority to a statement made by him or her in relation to that matter.

extend , in relation to a period:

                     (a)  includes further extend; and

                     (b)  has a meaning affected by section 70.

externally-administered body corporate means a body corporate:

                     (a)  that is being wound up; or

                     (b)  in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; or

                     (c)  that is under administration; or

                    (ca)  that has executed a deed of company arrangement that has not yet terminated; or

                     (d)  that has entered into a compromise or arrangement with another person the administration of which has not been concluded.

extraordinary resolution , in relation to a registered scheme, means a resolution:

                     (a)  of which notice as set out in paragraph 252J(c) has been given; and

                     (b)  that has been passed by at least 50% of the total votes that may be cast by members entitled to vote on the resolution (including members who are not present in person or by proxy).

Family Court means the Family Court of Australia.

Federal Court means the Federal Court of Australia.

fidelity fund means:

                     (a)  in relation to a futures organisation—the fidelity fund (if any) that section 1228 requires the futures organisation to keep; or

                     (b)  in relation to a securities exchange within the meaning of Chapter 7—the fidelity fund (if any) that section 895 requires or required the securities exchange to keep.

financial benefit (when used in Chapter 2E) has a meaning that is affected by section 229.

financial corporation means a financial corporation within the meaning of paragraph 51(20) of the Constitution.

financial records includes:

                     (a)  invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; and

                     (b)  documents of prime entry; and

                     (c)  working papers and other documents needed to explain:

                              (i)  the methods by which financial statements are made up; and

                             (ii)  adjustments to be made in preparing financial statements.

financial report means an annual financial report or a half-year financial report prepared under Chapter 2M.

Note:          Section 295 deals with the contents of annual financial reports and section 302 deals with the contents of half-year financial reports.

financial statements means annual financial statements under section 295 or half-year financial statements under section 303.

financial year has the meaning given by section 323D.

find , in the case of a reference to a court finding a person guilty of an offence, has a meaning affected by section 73A.

floating charge includes a charge that conferred a floating security at the time of its creation but has since become a fixed or specific charge.

for , in relation to a fee or tax, includes in respect of.

foreign company means:

                     (a)  a body corporate that is incorporated in an external Territory, or outside Australia and the external Territories, and is not:

                              (i)  a corporation sole; or

                             (ii)  an exempt public authority; or

                     (b)  an unincorporated body that:

                              (i)  is formed in an external Territory or outside Australia and the external Territories; and

                             (ii)  under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and

                            (iii)  does not have its head office or principal place of business in Australia.

foreign holder of securities means a holder of the securities whose address, as shown in the register in which details of their holding is recorded, is a place outside Australia and the external Territories.

franchise means an arrangement under which a person earns profits or income by exploiting a right, conferred by the owner of the right, to use a trade mark or design or other intellectual property or the goodwill attached to it in connection with the supply of goods or services. An arrangement is not a franchise if the person engages the owner of the right, or an associate of the owner, to exploit the right on the person’s behalf.

Full Court , in relation to a Supreme Court of a State or Territory, includes any court of the State or Territory to which appeals lie from a single judge of that Supreme Court.

fully paid share means a share on which no amount remains unpaid.

function includes a duty.

Fund means the National Guarantee Fund continued in existence by section 928B.

futures advice business has the meaning given by section 71.

futures adviser means a person who carries on, or 2 or more persons who together carry on, a futures advice business.

futures advisers licence means a futures advisers licence granted under Part 8.3.

futures association , in this Chapter and Chapter 8, means a body corporate in relation to which an approval under section 1132 is in force.

futures broker means:

                     (a)  except in section 1209 and Part 8.5:

                              (i)  a person who carries on, or 2 or more persons who together carry on, a futures broking business, whether or not the person, or any of the persons, also deals in futures contracts on the person’s own account; or

                             (ii)  the holder of a futures brokers licence; and

                     (b)  in section 1209 or Part 8.5—the holder of a futures brokers licence.

futures brokers licence , in this Chapter or Chapter 8, means a futures brokers licence granted under Part 8.3.

futures broking business , in relation to a person, means, subject to subsection 25(4), a business of dealing in futures contracts on behalf of other persons.

futures contract has the meaning given by section 72.

futures exchange , in this Chapter and Chapter 8, means a body corporate in relation to which an approval under section 1126 is in force.

futures law means a provision of Chapter 8.

futures licence means a futures brokers licence or a futures advisers licence.

futures licensee means a person who holds a futures licence.

futures market means a market, exchange or other place at which, or a facility by means of which, futures contracts are regularly acquired or disposed of.

futures option means an option or Chapter 8 right to assume, at a specified price or value and within a specified period, a bought position, or a sold position, in relation to an eligible commodity agreement or in relation to an adjustment agreement.

futures organisation means:

                     (a)  in this Chapter and Chapter 8 (other than Part 8.6)—a futures exchange or a futures association; and

                     (b)  in Part 8.6—a futures exchange or a futures association (other than a futures association each of whose members is also a member of a futures exchange).

futures report means an analysis or report about futures contracts.

futures representative has the meaning given by section 73.

Gazette notice means a notice published in the Gazette .

general law means the principles and rules of the common law and equity.

guarantor , in relation to a debenture, means a body that has guaranteed, or has agreed to guarantee, the repayment of any money deposited or lent to the borrower under the debenture.

guilty , in the case of a reference to a court finding a person guilty of an offence, has a meaning affected by section 73A.

half-year has the meaning given by subsection 323D(5).

have , in relation to information, includes be in possession of the information.

highest outside purchase price for a takeover bid is the highest amount paid or payable by the bidder for a security in the bid class under a purchase made outside the bid and during the bid period.

hold , in relation to a person, in relation to a document that is, or purports to be, a copy of a licence, means have in the person’s possession.

holding company , in relation to a body corporate, means a body corporate of which the first body corporate is a subsidiary.

in Australia has the meaning given by section 102C.

included , in relation to an official list, has the meaning given by section 75.

incorporated in Australia , in relation to a body corporate, includes incorporated by or under a law of:

                     (a)  the Commonwealth; or

                     (b)  a State; or

                     (c)  an internal Territory.

incorporation :

                     (a)  of a company—means the company’s first registration under this Act; and

                     (b)  of any other incorporated body—means the body’s incorporation by or under a law (other than this Act).

industrial instrument means:

                     (a)  a contract of employment; or

                     (b)  a law, award, determination or agreement relating to terms or conditions of employment.

information includes complaint.

information service means:

                     (a)  a broadcasting service; or

                     (b)  an interactive or broadcast videotext or teletext service or a similar service; or

                     (c)  an online database service or a similar service; or

                     (d)  any other prescribed service.

injury compensation means compensation payable under any law relating to workers compensation.

inside information , in relation to a futures contract, means information that is not generally available but, if it were generally available, would be likely to affect materially the price for dealing in:

                     (a)  that futures contract; or

                     (b)  a futures contract of the same kind as that futures contract.

insolvent has the meaning given by subsection 95A(2) and, in Part 7.10, has a meaning affected by section 922.

insolvent transaction has the meaning given by section 588FC.

insolvent under administration means a person who:

                     (a)  under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or

                     (b)  under the law of an external Territory or the law of a foreign country, has the status of an undischarged bankrupt;

and includes:

                     (c)  a person any of whose property is subject to control under:

                              (i)  section 50 or Division 2 of Part X of the Bankruptcy Act 1966 ; or

                             (ii)  a corresponding provision of the law of an external Territory or the law of a foreign country; or

                     (d)  a person who has executed a deed of assignment or a deed of arrangement under:

                              (i)  Part X of the Bankruptcy Act 1966 ; or

                             (ii)  the corresponding provisions of the law of an external Territory or the law of a foreign country;

                            where the terms of the deed have not been fully complied with; or

                     (e)  a person whose creditors have accepted a composition under:

                              (i)  Part X of the Bankruptcy Act 1966 ; or

                             (ii)  the corresponding provisions of the law of an external Territory or the law of a foreign country;

                            where a final payment has not been made under that composition.

interest in a managed investment scheme means a right to benefits produced by the scheme (whether the right is actual, prospective or contingent and whether it is enforceable or not).

invalid futures authority has the meaning given by subsection 87(2).

invalid securities authority has the meaning given by subsection 88(2).

investment advice business has the meaning given by section 77.

investment adviser means a person who carries on, or 2 or more persons who together carry on, an investment advice business.

investment advisers licence , in this Chapter or Chapter 7, means an investment advisers licence granted under Part 7.3.

investment contract means any contract, scheme or arrangement that, in substance and irrespective of its form, involves the investment of money in or under such circumstances that the investor acquires or may acquire an interest in, or right in respect of, property, whether in this jurisdiction or elsewhere, that, under, or in accordance with, the terms of investment will, or may at the option of the investor, be used or employed in common with any other interest in, or right in respect of, property, whether in this jurisdiction or elsewhere, acquired in or under like circumstances.

involved , in relation to a contravention, has the meaning given by section 79.

issue includes:

                     (a)  in relation to interests in a managed investment scheme—make available; and

                     (b)  otherwise—circulate, distribute and disseminate.

Judge means a judge of the Court.

judgment means a judgment, decree or order, whether final or interlocutory.

large proprietary company has the meaning given by subsection 45A(3).

law of a State or Territory means a law of, or in force in, the State or Territory.

Note:          This definition does not affect the meaning of law when used otherwise than in a phrase such as “law of a State or Territory”. Examples of such a use is in the phrase “any provision of any law” in section 100A and the phrase “law of the Commonwealth” in section 156.

lawyer means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person.

leave of absence means long service leave, extended leave, recreation leave, annual leave, sick leave or any other form of leave of absence from employment.

licence means:

                     (a)  in Chapter 7—a securities licence; and

                     (b)  in Chapter 8—a futures licence.

licensee means:

                     (a)  in Chapter 7—a securities licensee; and

                     (b)  in Chapter 8—a futures licensee; and

                     (c)  in relation to a licence—the person who holds the licence.

limited company means:

                     (a)  a company limited by shares; or

                     (b)  a company limited by guarantee; or

                     (c)  a company limited both by shares and guarantee;

but does not include a no liability company.

linked : the incurring of a debt and a contravention of section 596AB are linked if they are linked under subsection 596AB(4).

liquidating trade means a transaction whereby, for the purpose of closing out a futures contract, the person in the bought position, or sold position, under the futures contract assumes an offsetting sold position, or offsetting bought position, as the case may be, under another futures contract.

liquidator , in Chapters 7 and 8, includes a provisional liquidator.

listed : a company, managed investment scheme or other body is listed if it is included in the official list of a securities exchange.

listed corporation means a body corporate that is included in an official list of a securities exchange (as defined, for the purposes of this definition, by the regulations) in Australia or an external Territory.

listed disclosing entity has the meaning given by subsection 111AL(1).

listing rules , when used in Chapter 7, has the meaning given by section 761.

local agent , in relation to a foreign company, means a person who is a local agent of the foreign company by virtue of subsection 601CG(5).

lodge means lodge with ASIC in this jurisdiction.

lower court means a court of a State or Territory that is not a superior court.

machine-copy , in relation to a document, means a copy made of the document by any machine in which, or process by which, an image of the contents of the document is reproduced.

managed investment scheme means:

                     (a)  a scheme that has the following features:

                              (i)  people contribute money or money’s worth as consideration to acquire rights ( interests ) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not);

                             (ii)  any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members ) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders);

                            (iii)  the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or

                     (b)  a time-sharing scheme;

but does not include the following:

                     (c)  a partnership that has more than 20 members but does not need to be incorporated or formed under an Australian law because of regulations made for the purposes of subsection 115(2);

                     (d)  a body corporate (other than a body corporate that operates as a time sharing scheme);

                     (e)  a scheme in which all the members are bodies corporate that are related to each other and to the body corporate that promotes the scheme;

                      (f)  a franchise;

                     (g)  a statutory fund maintained under the Life Insurance Act 1995 ;

                     (h)  a regulated superannuation fund, an approved deposit fund, a pooled superannuation trust, or a public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993 ;

                      (i)  a scheme operated by an Australian ADI in the ordinary course of its banking business;

                      (j)  the issue of debentures or convertible notes by a body corporate;

                     (k)  a barter scheme under which each participant may obtain goods or services from another participant for consideration that is wholly or substantially in kind rather than in cash;

                      (l)  a retirement village scheme operating within or outside Australia:

                              (i)  under which the participants, or a majority of them, are provided, or are to be provided, with residential accommodation within a retirement village (whether or not the entitlement of a participant to be provided with accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is, or is to be, provided); and

                             (ii)  which is not a time-sharing scheme;

                    (m)  a scheme that is operated by a co-operative company registered under Part VI of the Companies (Co-operative) Act 1943 of Western Australia or under a previous law of Western Australia that corresponds to that Part;

                     (n)  a scheme of a kind declared by the regulations not to be a managed investment scheme.

Note:          Paragraph (c)—A partnership with less than 20 members will usually not require registration because of paragraph 601ED(1)(a) and under section 115 a partnership with more than 20 members can only operate if covered by regulations made for the purposes of subsection 115(2).

manager has a meaning affected by section 90.

managing controller , in relation to property of a corporation, means:

                     (a)  a receiver and manager of that property; or

                     (b)  any other controller of that property who has functions or powers in connection with managing the corporation.

marketable securities means debentures, stocks, shares or bonds of any Government, of any local government authority or of any body corporate, association or society, and includes any right or option in respect of shares in any body corporate and any prescribed interest.

market bid means a takeover bid made under Chapter 6 as a market bid (see section 616).

member :

                     (a)  in relation to a managed investment scheme ¾ means a person who holds an interest in the scheme; or

                     (b)  when used in Chapter 6 or Chapter 7 (except Part 7.1A and the provisions mentioned in paragraph (aa) of this definition) in relation to a securities exchange or stock exchange, means:

                              (i)  a person who is a member organisation of that exchange; or

                             (ii)  a person who is a partner in a partnership that is a member organisation of that exchange; or

                     (c)  when used in section 769, 769A or 772A, subsection 776(2), section 779, subsection 786(8) or 910(3) or section 913 or 1115, in relation to a securities exchange or stock exchange, means:

                              (i)  a person who is a member organisation of that exchange; or

                             (ii)  a person who is a partner in a partnership that is a member organisation of that exchange; or

                            (iii)  a person who is recognised under the business rules of the exchange as a suitably qualified affiliate of the exchange and who is involved in the carrying on of a business of dealing in securities (whether as an employee, director or in any other capacity); or

                     (d)  in relation to a body corporate that is, or proposes to become, a futures organisation—has a meaning affected by section 56; or

                     (e)  in relation to a company—a person who is a member under section 231.

member firm , in relation to a securities exchange, means a partnership that is a member organisation of the securities exchange.

member organisation means:

                     (a)  in relation to a securities exchange or stock exchange:

                              (i)  a person who is recognised under the business rules of the exchange as a suitably qualified participant of the exchange and who carries on a business of dealing in securities otherwise than in partnership; or

                             (ii)  a partnership that is recognised under the business rules of the exchange as a suitably qualified participant of the exchange and that carries on a business of dealing in securities; and

                     (b)  in relation to a futures organisation:

                              (i)  a member of the futures organisation that carries on a business of dealing in futures contracts otherwise than in partnership; or

                             (ii)  a partnership that the futures organisation recognises as a member organisation, that carries on a business of dealing in futures contracts and each partner in which is a member of some futures organisation.

members’ voluntary winding up means a winding up under Part 5.5 where a declaration has been made and lodged pursuant to section 494.

minerals means minerals in any form, whether solid, liquefied or gaseous and whether organic or inorganic.

minimum holding buy-back means a buy-back of all of a holder’s shares in a listed corporation if the shares are less than a marketable parcel within the meaning of the rules of the relevant securities exchange.

mining purposes means any or all of the following purposes:

                     (a)  prospecting for ores, metals or minerals;

                     (b)  obtaining, by any mode or method, ores, metals or minerals;

                     (c)  the sale or other disposal of ores, metals, minerals or other products of mining;

                     (d)  the carrying on of any business or activity necessary for, or incidental to, any of the foregoing purposes;

whether in Australia or elsewhere, but does not include quarrying operations for the sole purpose of obtaining stone for building, roadmaking or similar purposes.

misconduct includes fraud, negligence, default, breach of trust and breach of duty.

modifications includes additions, omissions and substitutions.

money includes a payment order.

national business names register means the record or records of information identified by the Minister in a notice under subsection 147(5).

national newspaper means a daily newspaper that circulates generally in each State and each internal Territory.

NCSC means the National Companies and Securities Commission.

necessary transfer documents for the transfer of securities to a person means the documents that are sufficient to enable the person to become the holder of the securities.

negative , in relation to a document, means a transparent negative photograph used, or intended to be used, as a medium for reproducing the contents of the document, and includes a transparent photograph made from surface contact with the original negative photograph.

negotiable instrument , in relation to a body corporate, means:

                     (a)  a bill of exchange, promissory note, cheque or other negotiable instrument; or

                     (b)  an indorsement on, or order in, a bill of exchange, promissory note, cheque or other negotiable instrument; or

                     (c)  a letter of credit;

of, or purporting to be issued or signed by or on behalf of, the body.

no liability company means a company that is registered as, or converts to, a no liability company under this Act.

Note 1:       A no liability company can be registered under section 118 or 601BD. A company can convert to a no liability company under Part 2B.7.

Note 2:       A no liability company must have solely mining purposes and have no contractual right to recover unpaid calls (see subsection 112(2)).

nominee corporation means a body corporate whose principal business is the business of holding marketable securities as a trustee or nominee.

non-broker means a person who is neither a futures broker nor one of 2 or more persons who together constitute a futures broker.

non-dealer means a person who is neither a dealer nor one of 2 or more persons who together constitute a dealer.

non-voting share , in relation to a body corporate, means an issued share in the body that is not a voting share in the body.

notice includes a circular and an advertisement.

of , in relation to securities, means, in the case of interests in a managed investment scheme, made available by.

offence means an offence against a law of the Commonwealth or a State or Territory.

offer information statement means an offer information statement that is lodged with ASIC.

offer period for a takeover bid is the period for which offers under the bid remain open.

officer of a corporation means:

                     (a)  a director or secretary of the corporation; or

                     (b)  a person:

                              (i)  who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

                             (ii)  who has the capacity to affect significantly the corporation’s financial standing; or

                            (iii)  in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation); or

                     (c)  a receiver, or receiver and manager, of the property of the corporation; or

                     (d)  an administrator of the corporation; or

                     (e)  an administrator of a deed of company arrangement executed by the corporation; or

                      (f)  a liquidator of the corporation; or

                     (g)  a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

Note:          Section 201B contains rules about who is a director of a corporation.

officer of the Commonwealth has the same meaning as in paragraph 75(v) of the Constitution.

official liquidator means a person registered as an official liquidator under section 1283.

official manager means a person appointed as an official manager under Part 5.3.

off-market bid means a takeover bid made under Chapter 6 as an off-market bid (see section 616).

old Corporations Law , in relation to a State or Territory, has the same meaning as it has in Part 11.1.

old Division 11 of Part 11.2 transitionals means the following:

                     (a)  the provisions of Division 11 of Part 11.2 of the old Corporations Law of each State or Territory in this jurisdiction, to the extent they continue to have effect because of section 1408 of this Act; and

                     (b)  if regulations for the purposes of subsection 1408(3) deal with a matter or matters dealt with in those provisions—the regulations that so deal with the matter or matters.

old Division 12 of Part 11.2 transitionals means the following:

                     (a)  the provisions of Division 12 of Part 11.2 of the old Corporations Law of each State or Territory in this jurisdiction, to the extent they continue to have effect because of section 1408 of this Act; and

                     (b)  if regulations for the purposes of subsection 1408(3) deal with a matter or matters dealt with in those provisions—the regulations that so deal with the matter or matters.

on , in relation to a stock market or futures market, includes at or by means of.

on behalf of includes on the instructions of.

on-market : a transaction of any kind is an on-market transaction if it is effected on a stock market of a securities exchange and is:

                     (a)  an on-market transaction as defined in the rules governing the operation of the exchange; or

                     (b)  if those rules do not define on-market transactions—effected in the ordinary course of trading on the stock market.

on-market buy-back means a buy-back by a listed corporation at an official meeting of a securities exchange in the ordinary course of trading on a stock market of the exchange.

option contract , in Chapter 7, means:

                     (a)  a contract under which a party acquires from another party an option or right, exercisable at or before a specified time, to buy from, or to sell to, that other party a number of specified securities, or of a specified class of securities, being securities of a kind referred to in paragraph 92(1)(a), (b), (c) or (d), at a price specified in, or to be determined in accordance with, the contract; or

                     (b)  a contract entered into on a stock market of a securities exchange or on an exempt stock market, being a contract under which a party to the contract acquires from another party to the contract an option or right, exercisable at or before a specified time:

                              (i)  to buy from, or to sell to, that other party an amount of a specified foreign currency, or a quantity of a specified commodity, at a price specified in, or to be determined in accordance with, the contract; or

                             (ii)  to be paid by that other party an amount of money to be determined by reference to the amount by which a specified number is greater or less than the number of a specified index, being the Australian Stock Exchanges All Ordinaries Price Index or a prescribed index, as at the time when the option or right is exercised.

outside this jurisdiction has a meaning affected by subsection 102B(2).

outstanding property , in relation to a body corporate that has been dissolved or deregistered, means outstanding property (other than unpaid capital, whether called or uncalled) that was vested in the body, to which it was entitled, or over which it had a disposing power, when it was dissolved or deregistered, but that neither the body nor its liquidator got in, realised on or otherwise disposed of or dealt with.

own account has:

                     (a)  in relation to a person dealing in a futures contract—a meaning affected by section 29; or

                     (b)  in relation to a person dealing in, or entering into a transaction in relation to, securities—a meaning affected by section 84.

Panel means the Corporations and Securities Panel.

Part 5.1 body means:

                     (a)  a company; or

                     (b)  a registrable body that is registered under Division 1 or 2 of Part 5B.2.

Part 5.7 body means:

                     (a)  a registrable body that is a registrable Australian body and:

                              (i)  is registered under Division 1 of Part 5B.2; or

                             (ii)  is not registered under that Division but carries on business in this jurisdiction and outside its place of origin; or

                     (b)  a registrable body that is a foreign company and:

                              (i)  is registered under Division 2 of Part 5B.2; or

                             (ii)  is not registered under that Division but carries on business in Australia; or

                     (c)  a partnership, association or other body (whether a body corporate or not) that consists of more than 5 members and that is not a registrable body.

Part 10.1 transitionals means the provisions of Part 10.1 and of regulations for the purposes of those provisions.

party :

                     (a)  in relation to a transaction—includes, if the transaction has been completed or given effect to, or has been terminated, a person who was a party to the transaction; and

                     (b)  in relation to a Chapter 8 agreement—means, in the case of a proposed or discharged relevant agreement, a person who would be a party to the relevant agreement if it were in effect.

payment (when used in Division 2 of Part 2D.2 (sections 200A to 200J) includes a payment by way of damages for breach of contract.

payment order means a cheque (including a cheque that a bank or other institution draws on itself), bank draft, money order or postal order.

person :

                     (a)  has a meaning affected by section 85A; and

                     (b)  when used in Division 2 of Part 2D.2 (sections 200A to 200J)—includes a superannuation fund.

place of origin :

                     (a)  in relation to a body corporate at a particular time, means:

                              (i)  in the case of a body incorporated at that time in a State or Territory—that State or Territory; or

                             (ii)  otherwise—the place of the body’s incorporation at that time; or

                     (b)  in relation to an unincorporated body—the State or Territory, or other place, in which the body is formed.

possession has a meaning affected by section 86.

power includes an authority.

premises includes:

                     (a)  a structure, building, aircraft, vehicle or vessel; and

                     (b)  any land or place (whether enclosed or built on or not); and

                     (c)  a part of a structure, building, aircraft, vehicle or vessel or of such a place.

price , in relation to a commodity agreement or a futures contract, or in Chapter 8, includes any amount payable for the delivery of a commodity under an agreement.

printed includes type-written, lithographed or reproduced by any mechanical means.

procure includes cause.

profile statement means a profile statement that is lodged with ASIC.

proper authority has:

                     (a)  in relation to a futures licensee—the meaning given by subsection 87(1); and

                     (b)  in relation to a securities licensee—the meaning given by subsection 88(1).

proper SCH transfer means:

                     (a)  an SCH-regulated transfer of a quoted security or quoted right effected in accordance with the SCH business rules; or

                     (b)  a transfer that is taken by section 1097D to be a proper SCH transfer.

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action.

proportional takeover approval provisions , in relation to a company, means provisions of the kind referred to in subsection 648D(1) that are contained in, or that it is proposed to insert in, the constitution of the company.

proportional takeover bid means an off-market bid for a specified proportion of the securities in the bid class (see paragraph 618(1)(b)).

proprietary company has the meaning given by subsection 45A(1).

prospectus means a prospectus that is lodged with ASIC.

prove includes establish in any way (for example, but without limitation, through the operation of a presumption for which this Act or a law of a State or Territory provides).

providing finance means:

                     (a)  lending money; or

                     (b)  giving guarantees or security for loans made by someone else; or

                     (c)  drawing, accepting, indorsing, negotiating or discounting a bill of exchange, cheque, payment order or promissory note so that someone can obtain funds.

provision of a law includes:

                     (a)  a subsection, section, Subdivision, Division, Part or Chapter of the law; and

                     (b)  a Schedule, or an item in a Schedule, to the law.

public company means a company other than a proprietary company and:

                     (a)  in section 195 and Chapter 2E, includes a body corporate (other than a prescribed body corporate) that:

                              (i)  is incorporated in a State or an internal Territory, but not under this Act; and

                             (ii)  is included in the official list of a securities exchange; and

                     (b)  in Chapter 2E does not include a company that does not have “Limited” in its name because of section 150 or 151.

public document , in relation to a body corporate, has the meaning given by section 88A.

publish :

                     (a)  in relation to a notice—means, in Chapter 7, publish by any means, including in a newspaper or periodical, by broadcasting or televising or in a cinematograph film; and

                     (b)  in any case—includes issue.

qualified accountant means a member of a professional body that is approved by ASIC in writing for the purposes of this definition.

qualified privilege has the meaning given by section 89.

quarter day means 31 March, 30 June, 30 September or 31 December.

quotation , in relation to securities, in relation to a stock market of a securities exchange, or of a stock exchange, within the meaning of the provision where the expression occurs, includes the displaying or providing, on a stock market of the securities exchange or stock exchange, of information concerning:

                     (a)  if offers to sell, purchase or exchange the securities at particular prices, or for particular consideration, are made or accepted on that stock market—those prices or that consideration; or

                     (b)  if offers or invitations are made on that stock market, being offers or invitations that are intended, or may reasonably be expected, to result in the making or acceptance of offers to sell, purchase or exchange the securities at particular prices, or for particular consideration—those prices or that consideration; or

                     (c)  in any case—the price at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange the securities.

quoted ED securities has the meaning given by section 111AM.

quoted right has the meaning given by section 1097A.

Note:          The meaning of quoted right may be extended by the SCH business rules (under section 1097B) or by an ASIC declaration (under section 1097C).

quoted security has the meaning given by section 1097A.

Note:          The meaning of quoted security may be extended by the SCH business rules (under section 1097B) or by an ASIC declaration (under section 1097C).

receiver and manager has a meaning affected by section 90.

recognised futures exchange means a body corporate that:

                     (a)  conducts a futures market outside Australia; and

                     (b)  is prescribed for the purposes of this definition.

redeemable preference share means a preference share in a body corporate that is, or at the body’s option is to be, liable to be redeemed.

referring State has the meaning given by section 4.

register means register under this Act.

registered Australian body means a registrable Australian body that is registered under Division 1 of Part 5B.2.

registered body mean a registered Australian body or a registered foreign company.

registered company auditor :

                     (a)  means a person registered as an auditor under Part 9.2; and

                     (b)  in relation to a body corporate that is not a company—includes a person qualified to act as the body’s auditor under the law of the body’s incorporation.

registered foreign company means a foreign company that is registered under Division 2 of Part 5B.2.

registered liquidator means a person registered as a liquidator under subsection 1282(2).

registered office , in relation to a body corporate, means the body’s registered office under section 142 or 601CT, as the case requires.

registered scheme means a managed investment scheme that is registered under section 601EB.

registrable Australian body means:

                     (a)  a body corporate, not being:

                              (i)  a company; or

                             (ii)  an exempt public authority; or

                            (iii)  a corporation sole; or

                     (b)  an unincorporated body that, under the law of its place of formation:

                              (i)  may sue or be sued; or

                             (ii)  may hold property;

                            in the name of its secretary or of an officer of the body duly appointed for that purpose;

but does not include a foreign company.

registrable body means a registrable Australian body or a foreign company.

related body corporate , in relation to a body corporate, means a body corporate that is related to the first-mentioned body by virtue of section 50.

related entity , in relation to a body corporate, means any of the following:

                     (a)  a promoter of the body;

                     (b)  a relative, or de facto spouse, of such a promoter;

                     (c)  a relative of a spouse, or of a de facto spouse, of such a promoter;

                     (d)  a director or member of the body or of a related body corporate;

                     (e)  a relative, or de facto spouse, of such a director or member;

                      (f)  a relative of a spouse, or of a de facto spouse, of such a director or member;

                     (g)  a body corporate that is related to the first-mentioned body;

                     (h)  a beneficiary under a trust of which the first-mentioned body is or has at any time been a trustee;

                      (i)  a relative, or de facto spouse, of such a beneficiary;

                      (j)  a relative of a spouse, or of a de facto spouse, of such a beneficiary;

                     (k)  a body corporate one of whose directors is also a director of the first-mentioned body;

                      (l)  a trustee of a trust under which a person is a beneficiary, where the person is a related entity of the first-mentioned body because of any other application or applications of this definition.

related party (when used in Chapter 2E) has the meaning given by section 228.

relation-back day , in relation to a winding up of a company or Part 5.7 body, means:

                     (a)  if, because of Division 1A of Part 5.6, the winding up is taken to have begun on the day when an order that the company or body be wound up was made—the day on which the application for the order was filed; or

                     (b)  otherwise—the day on which the winding up is taken because of Division 1A of Part 5.6 to have begun.

relative , in relation to a person, means the spouse, parent or remoter lineal ancestor, son, daughter or remoter issue, or brother or sister of the person.

relevant agreement means an agreement, arrangement or understanding:

                     (a)  whether formal or informal or partly formal and partly informal; and

                     (b)  whether written or oral or partly written and partly oral; and

                     (c)  whether or not having legal or equitable force and whether or not based on legal or equitable rights.

relevant date , in relation to a winding up, means the day on which the winding up is taken because of Division 1A of Part 5.6 to have begun.

Note:          Subsection 553(1B) modifies the operation of this definition for debts and claims that arise while a company is under a deed of company arrangement if the deed terminates immediately before the winding up.

relevant interest , in relation to securities, has a meaning given by sections 608 and 609.

relevant securities exchange for a listed company, or listed registered managed investment scheme, means:

                     (a)  the securities exchange on whose stock market the company or scheme is listed; or

                     (b)  if the company or scheme is listed on 2 or more exchanges—each of those exchanges.

remedial order means an order that:

                     (a)  restrains a person from exercising any voting or other rights attached to securities; or

                     (b)  directs a body corporate not to make or to defer payment of an amount due from the body corporate in respect of securities; or

                     (c)  restrains a person from acquiring securities or an interest in securities; or

                     (d)  directs a person to dispose of, or not to dispose of, securities or interests in securities; or

                     (e)  directs the disposal referred to in paragraph (d):

                              (i)  to be made within a specified time; or

                             (ii)  to be made subject to specified conditions; or

                            (iii)  not to be made to a specified person or persons or to a specified class or classes of persons;

                      (f)  directs a specified person to pay to the body corporate an amount equal to any profit or benefit that the person obtains because of the disposal referred to in paragraph (d); or

                     (g)  vests securities, or an interest in securities, in ASIC; or

                     (h)  directs a body corporate not to register the transfer or transmission of securities; or

                      (i)  cancels securities issued as consideration for offers under a takeover bid; or

                      (j)  declares that an exercise of the voting or other rights attached to securities be disregarded; or

                     (k)  cancels or declares voidable:

                              (i)  an agreement or offer relating to a takeover bid, or a proposed takeover bid; or

                             (ii)  any other agreement or offer in connection with the acquisition of securities or relevant interests in securities;

                      (l)  directs a person to give specified information to the holders of securities of a body corporate; or

                    (m)  directs a body corporate not to issue securities to a person; or

                     (n)  if an order of a kind referred to in paragraphs (a) to (m) is in force in respect of securities—directs the registered holder of the securities to give written notice of the order to any person whom the holder knows to be entitled to exercise a right to vote attached to those securities; or

                     (o)  directs a body corporate to repeal or modify its existing constitution or adopt a particular constitution; or

                     (p)  if a person has failed to comply with a requirement of Chapter 6, 6A, 6B or 6C directs that person to comply with that requirement.

remuneration of an officer or employee of a corporation. A benefit given to an officer or employee of a corporation is remuneration if and only if the benefit, were it received by a director of the corporation, would be remuneration of the director for the purposes of an accounting standard that deals with disclosure in companies’ financial reports of information about related parties. For the purposes of this definition, the following are not officers of a corporation:

                     (a)  a receiver, or receiver and manager, of the property of the corporation;

                     (b)  an administrator of the corporation;

                     (c)  an administrator of a deed of company arrangement executed by the corporation;

                     (d)  a liquidator of the corporation;

                     (e)  a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

renounceable option means an assignable option to have an allotment of shares in a body corporate made to the holder of the option.

representative means:

                     (a)  in Chapter 7—a securities representative; or

                     (b)  in Chapter 8—a futures representative.

reproduction , in relation to a document, means a machine-copy of the document or a print made from a negative of the document.

resolution , in relation to creditors or contributories, means a resolution passed at a meeting of the creditors or contributories.

resolution for voluntary winding up means the special resolution referred to in section 491.

responsible entity of a registered scheme means the company named in ASIC’s record of the scheme’s registration as the responsible entity or temporary responsible entity of the scheme.

responsible officer means:

                     (a)  in relation to a body corporate that is, or proposes to be, a member of another body corporate:

                              (i)  a director or executive officer of the first-mentioned body; or

                             (ii)  a person who has control or substantial control of the first-mentioned body; and

                     (b)  in relation to a body corporate that applies for a licence—an officer of the body who would perform duties in connection with the holding of the licence.

result includes:

                     (a)  when used as a verb—result indirectly; and

                     (b)  when used as a noun—an indirect result.

retirement village scheme means a scheme, undertaking or enterprise (in this definition called the relevant scheme ), whether in Australia or elsewhere, that is being, or is proposed to be, carried out or undertaken with the intention that the participants, or a majority of the participants, in the relevant scheme be provided, in connection with the relevant scheme, with residential accommodation within a retirement community, whether or not the entitlement of a participant to be provided with such accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is provided, but does not include a time-sharing scheme.

revoke , in relation to an accounting standard, means, in the case of a provision of an accounting standard, vary the last-mentioned accounting standard by omitting the provision.

rules means:

                     (a)  rules of the Federal Court; or

                     (b)  rules of the Supreme Court of a State or internal Territory;

as the case requires.

same kind , in relation to a Chapter 8 agreement, has the meaning given by section 54.

SCH is short for securities clearing house.

SCH business rules means the business rules (within the meaning of Chapter 7) of the securities clearing house.

SCH certificate cancellation provisions means the provisions of the SCH business rules that deal with:

                     (a)  brokers cancelling certificates or other documents of title to quoted securities or quoted rights; and

                     (b)  matters incidental to brokers cancelling such certificates or documents.

scheme property of a registered scheme means:

                     (a)  contributions of money or money’s worth to the scheme; and

                     (b)  money that forms part of the scheme property under provisions of this Act or the ASIC Act; and

                     (c)  money borrowed or raised by the responsible entity for the purposes of the scheme; and

                     (d)  property acquired, directly or indirectly, with, or with the proceeds of, contributions or money referred to in paragraph (a), (b) or (c); and

                     (e)  income and property derived, directly or indirectly, from contributions, money or property referred to in paragraph (a), (b), (c) or (d).

Note 1:     Paragraph (a)—if what a member contributes to a scheme is rights over property, the rights in the property that the member retains do not form part of the scheme property.

Note 2:     For provisions that are relevant to paragraph (b), see subsections 177(4), 1317HA(1A), 1317HB(3) and 1317HD(3) of this Act and subsection 93A(5) of the ASIC Act.

SCH participant means a person who, or a partnership that, under the SCH business rules, is entitled to participate in the facilities provided by the securities clearing house.

SCH-regulated transfer means a transfer (within the meaning of Division 3 of Part 7.13) of a quoted security or a quoted right that, according to the SCH business rules, is an SCH-regulated transfer.

SCH subregister means a subregister of quoted securities or quoted rights maintained by the SCH under the SCH business rules.

scrip means documents that are, or are documents of title to, securities.

section 513C day , in relation to the administration of a company, has the meaning given by section 513C.

section 770A stock market means a stock market in relation to which an approval under section 770A is in force.

securities has the meaning given by section 92.

securities adviser means a dealer, an investment adviser or a securities representative of a dealer or of an investment adviser.

securities business has the meaning given by section 93.

Note:          The activities of the securities clearing house will not generally constitute a securities business—see subsection 779J(1).

securities clearing house means the body corporate in relation to which an approval under section 779B is in force.

securities exchange means:

                     (a)  in a provision (other than a provision of this Chapter or Chapter 6, 6C, 6D or 7) for the purposes of which a regulation is in force defining that expression—a securities exchange as defined by that regulation; or

                     (b)  in Chapters 6 and 6C:

                              (i)  the Exchange;

                             (ii)  Australian Stock Exchange (Adelaide) Limited; or

                            (iii)  Australian Stock Exchange (Brisbane) Limited; or

                            (iv)  Australian Stock Exchange (Hobart) Limited; or

                             (v)  Australian Stock Exchange (Melbourne) Limited; or

                            (vi)  Australian Stock Exchange (Perth) Limited; or

                           (vii)  Australian Stock Exchange (Sydney) Limited; or

                          (viii)  a body corporate that is declared by the regulations to be a securities exchange for the purposes of that Chapter; or

                     (c)  in this Chapter or Chapter 6D or 7:

                              (i)  a stock exchange; or

                             (ii)  a body corporate in relation to which an approval under section 770 is in force.

securities law means a provision of Chapter 5C, 6, 6A, 6B, 6C, 6D or 7.

securities licence means a dealers licence or an investment advisers licence.

securities licensee means a person who holds a securities licence.

securities recommendation means a recommendation with respect to securities or a class of securities, whether made expressly or by implication.

securities report means an analysis or report about securities.

securities representative has the meaning given by section 94.

SEGC means a body corporate in relation to which a nomination as the Securities Exchanges Guarantee Corporation is in force under subsection 925A(1).

selective buy-back means a buy-back that is none of the following:

                     (a)  a buy-back under an equal access scheme within the meaning of subsections 257B(2) and (3);

                     (b)  a minimum holding buy-back;

                     (c)  an on-market buy-back;

                     (d)  an employee share scheme buy-back.

serious fraud means an offence involving fraud or dishonesty, being an offence:

                     (a)  against an Australian law or any other law; and

                     (b)  punishable by imprisonment for life or for a period, or maximum period, of at least 3 months.

sheriff includes a person charged with the execution of a writ or other process.

small proprietary company has the meaning given by subsection 45A(2).

sold position means:

                     (a)  in relation to a commodity agreement, or in relation to a futures contract, being a commodity agreement—the position of a person who, by virtue of the agreement, is under a Chapter 8 obligation to make delivery in accordance with the agreement; or

                     (b)  in relation to a futures contract, being an adjustment agreement—the position of a person who, by virtue of the agreement:

                              (i)  will, if the value or worth of the agreement (as determined in accordance with the agreement) as at a particular future time exceeds by a particular amount the value or worth of the agreement (as so determined) as at a particular earlier time, be under a Chapter 8 obligation to pay that amount; and

                             (ii)  will, if the value or worth of the agreement (as so determined) as at a particular future time is less by a particular amount than the value or worth of the agreement (as so determined) as at a particular earlier time, have a Chapter 8 right to receive that amount.

sole trader means a person who is a member organisation of a securities exchange.

solvent has the meaning given by subsection 95A(1).

special resolution means:

                     (a)  in relation to a company, a resolution:

                              (i)  of which notice as set out in paragraph 249L(c) has been given; and

                             (ii)  that has been passed by at least 75% of the votes cast by members entitled to vote on the resolution; or

                     (b)  in relation to a registered scheme, a resolution:

                              (i)  of which notice as set out in paragraph 252J(c) has been given; and

                             (ii)  that has been passed by at least 75% of the votes cast by members entitled to vote on the resolution.

staff member , in relation to ASIC, means a person who is a staff member for the purposes of the ASIC Act.

standardised agreement means a Chapter 8 agreement that is one of 2 or more Chapter 8 agreements each of which is a Chapter 8 agreement of the same kind as the other, or as each of the others, as the case may be.

standard opening hours means 10 am to 12 noon and 2 pm to 4 pm each business day.

State , when used in a geographical sense, includes the coastal sea of the State.

State Fair Trading Act means the following Acts for each State and Territory:

 

State Fair Trading Acts

 

State or Territory

Act

1

New South Wales

Fair Trading Act 1987

2

Victoria

Fair Trading Act 1999

3

Queensland

Fair Trading Act 1987

4

South Australia

Fair Trading Act 1987

5

Western Australia

Fair Trading Act 1987

6

Tasmania

Fair Trading Act 1990

7

Northern Territory

Fair Trading Act 1990

8

Australian Capital Territory

Fair Trading Act 1992

State Family Court , in relation to a State, means a court of that State to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

statement , in Chapter 7, includes matter that is not written but conveys a message.

State or Territory court means a court of a State, the Capital Territory or the Northern Territory.

State or Territory Supreme Court means the Supreme Court of:

                     (a)  a State; or

                     (b)  the Capital Territory; or

                     (c)  the Northern Territory.

statutory demand means:

                     (a)  a document that is, or purports to be, a demand served under section 459E; or

                     (b)  such a document as varied by an order under subsection 459H(4).

statutory minimum means:

                     (a)  if an amount greater than $2,000 is prescribed—the prescribed amount; or

                     (b)  otherwise—$2,000.

stock exchange means:

                     (a)  in a provision (other than a provision of this Chapter or Chapter 6 or 7) for the purposes of which a regulation is in force defining that expression—a stock exchange as defined by that regulation; or

                     (b)  in Chapter 6:

                              (i)  the Exchange;

                             (ii)  Australian Stock Exchange (Adelaide) Limited; or

                            (iii)  Australian Stock Exchange (Brisbane) Limited; or

                            (iv)  Australian Stock Exchange (Hobart) Limited; or

                             (v)  Australian Stock Exchange (Melbourne) Limited; or

                            (vi)  Australian Stock Exchange (Perth) Limited; or

                           (vii)  Australian Stock Exchange (Sydney) Limited; or

                          (viii)  a body corporate that is declared by the regulations to be a stock exchange for the purposes of that Chapter; or

                     (c)  in this Chapter or Chapter 7—any of the following:

                              (i)  the Exchange;

                             (ii)  Australian Stock Exchange (Adelaide) Limited;

                            (iii)  Australian Stock Exchange (Brisbane) Limited;

                            (iv)  Australian Stock Exchange (Hobart) Limited;

                             (v)  Australian Stock Exchange (Melbourne) Limited;

                            (vi)  Australian Stock Exchange (Perth) Limited;

                           (vii)  Australian Stock Exchange (Sydney) Limited;

                          (viii)  the Stock Exchange of Bendigo Limited;

                            (ix)  the Stock Exchange of Ballarat Limited;

                             (x)  the Stock Exchange of Newcastle Limited;

                            (xi)  a body corporate in relation to which an approval under section 769 is in force.

stock market means, subject to section 97, a market, exchange or other place at which, or a facility by means of which:

                     (a)  offers to sell, purchase or exchange securities are regularly made or accepted; or

                     (b)  offers or invitations are regularly made, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange securities; or

                     (c)  information is regularly provided about the prices at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange securities.

subscriber for securities that are interests in a managed investment scheme means any person:

                     (a)  accepting an offer, or making an offer pursuant to an invitation, in respect of the interests; or

                     (b)  subscribing for or buying the interests.

subsection 1337B(3) proceeding means a proceeding with respect to a matter referred to in subsection 1337B(3).

subsidiary , in relation to a body corporate, means a body corporate that is a subsidiary of the first-mentioned body by virtue of Division 6.

substantial holding : A person has a substantial holding in a body corporate, or listed registered managed investment scheme, if:

                     (a)  the total votes attached to voting shares in the body, or voting interests in the scheme, in which they or their associates:

                              (i)  have relevant interests; and

                             (ii)  would have a relevant interest but for subsection 609(6) (exchange traded options) or 609(7) (conditional agreements);

                            is 5% or more of the total number of votes attached to voting shares in the body, or interests in the scheme; or

                     (b)  the person has made a takeover bid for voting shares in the body, or voting interests in the scheme, and the takeover period has started and not yet ended.

Note:          For relevant interest , see section 608.

substantial part , in relation to activities, includes the whole of those activities.

superior court means the Federal Court of Australia, the Supreme Court of a State or Territory, the Family Court or a State Family Court.

superior court matter means a civil matter that this Act clearly intends (for example, by use of the expression the Court ) to be dealt with only by a superior court.

suspend , in relation to a licence, includes, except in sections 827 and 1192, make under section 827 or 1192, as the case requires, an order prohibiting the licensee as mentioned in paragraph 827(1)(d) or 1192(1)(d).

takeover bid means an off-market bid or market bid made under Chapter 6.

takeover contract means a contract that results from the acceptance of an offer made under a takeover bid.

target for a takeover bid means the company, listed body or managed investment scheme whose securities are to be acquired under the bid.

target’s statement means a target’s statement under sections 638 to 640 as supplemented.

territorial sea has the same meaning as in the Seas and Submerged Lands Act 1973 .

Territory means:

                     (a)  the Capital Territory; or

                     (b)  the Northern Territory; or

                     (c)  an external Territory;

and, when used in a geographical sense, includes the coastal sea of the Territory.

this Act includes the regulations.

this jurisdiction means the geographical area that consists of:

                     (a)  each referring State (including its coastal sea); and

                     (b)  the Capital Territory (including the coastal sea of the Jervis Bay Territory); and

                     (c)  the Northern Territory (including its coastal sea).

time-sharing scheme means a scheme, undertaking or enterprise, whether in Australia or elsewhere:

                     (a)  participants in which are, or may become, entitled to use, occupy or possess, for 2 or more periods during the period for which the scheme, undertaking or enterprise is to operate, property to which the scheme, undertaking or enterprise relates; and

                     (b)  that is to operate for a period of not less than 3 years.

trade , in relation to securities, in relation to a stock market, includes:

                     (a)  make or accept on that stock market an offer to sell, buy or exchange the securities; and

                     (b)  make on that stock market an offer or invitation that is intended, or may reasonably be expected, to result in the making or acceptance of an offer to sell, buy or exchange the securities.

trading day of a securities exchange or stock exchange means a day on which a stock market of the exchange or stock exchange is open for trading in securities.

trading floor , in relation to a futures market conducted by a body corporate, means a place or facility that the body maintains or provides for the acquisition or disposal of futures contracts by members of the body, or by such members and other persons.

transaction , in Part 5.7B, in relation to a body corporate or Part 5.7 body, means a transaction to which the body is a party, for example (but without limitation):

                     (a)  a conveyance, transfer or other disposition by the body of property of the body; and

                     (b)  a charge created by the body on property of the body; and

                     (c)  a guarantee given by the body; and

                     (d)  a payment made by the body; and

                     (e)  an obligation incurred by the body; and

                      (f)  a release or waiver by the body; and

                     (g)  a loan to the body;

and includes such a transaction that has been completed or given effect to, or that has terminated.

transmission means a transmission, by means of electric or electromagnetic energy, of:

                     (a)  sounds, including speech and music; or

                     (b)  visual images; or

                     (c)  signals for the communication, whether as between persons and persons, persons and things or things and things, of any matter otherwise than in the form of sounds or visual images; or

                     (d)  signals for the actuation or control of machinery or apparatus.

transparency , in relation to a document, means:

                     (a)  a developed negative or positive photograph of that document (in this definition called an original photograph ) made, on a transparent base, by means of light reflected from, or transmitted through, the document; or

                     (b)  a copy of an original photograph made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with the original photograph; or

                     (c)  any one of a series of copies of an original photograph, the first of the series being made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b), and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series.

Tribunal means the Administrative Appeals Tribunal.

ultimate holding company , in relation to a body corporate, means a body corporate that:

                     (a)  is a holding company of the first-mentioned body; and

                     (b)  is itself a subsidiary of no body corporate.

unauthorised futures market means a futures market that is neither a futures market of a futures exchange nor an exempt futures market.

unauthorised stock market means a stock market that is not:

                     (a)  a stock market of a securities exchange; or

                     (b)  a section 770A stock market; or

                     (c)  an exempt stock market.

unclaimed money account means an account that:

                     (a)  ASIC maintains under section 63J of the Audit Act 1901 ; and

                     (b)  is maintained for the sole purpose of containing money that is unclaimed property.

unclaimed property means:

                     (a)  property paid or transferred to ASIC under a provision of this Act that provides for property to be transferred, or for the Court to direct that property be transferred, to ASIC to be dealt with under Part 9.7; or

                     (b)  any other property that a provision of this Act provides for ASIC to deal with under Part 9.7; or

                     (c)  property that vests in ASIC under section 1404; or

                     (d)  an accretion to, or substitution for, property that is unclaimed property because of any other application or applications of this definition; or

                     (e)  without limiting paragraph (d), money paid, or required to be paid, under paragraph 1339(2)(b) into an unclaimed money account;

but does not include income that the Minister has applied under subsection 1339(3).

uncommercial transaction has the meaning given by section 588FB.

underlying securities means:

                     (a)  in relation to an option over securities—those securities; and

                     (b)  in relation to scrip that is constituted by documents that are, or are documents of title to, securities—those securities.

undertaking , in relation to a managed investment scheme, means the undertaking, scheme, enterprise, contract or arrangement to which the scheme relates.

underwrite includes sub-underwrite.

unfair loan has the meaning given by section 588FD.

unfair preference has the meaning given by section 588FA.

unit , in relation to a share, debenture or other interest, means a right or interest, whether legal or equitable, in the share, debenture or other interest, by whatever term called, and includes an option to acquire such a right or interest in the share, debenture or other interest.

unlimited company means a company whose members have no limit placed on their liability.

unlisted disclosing entity has the meaning given by subsection 111AL(2).

unsecured , in relation to a debt, has in Part 5.7B a meaning affected by section 588D.

value , in relation to an asset, includes amount.

voting interest , in relation to a managed investment scheme, means an issued interest in the scheme that confers a right to vote, not being a right to vote that is exercisable only in one or more of the following circumstances:

                     (a)  on a proposal that affects rights attached to the interests;

                     (b)  on a proposal to wind up the scheme;

                     (c)  on a proposal for the disposal of the whole of the scheme property, business and undertaking;

                     (d)  during the winding up of the scheme.

voting power in a company has the meaning given by section 610.

voting share in a body corporate means an issued share in the body that carries any voting rights beyond the following:

                     (a)  a right to vote while a dividend (or part of a dividend) in respect of the share is unpaid;

                     (b)  a right to vote on a proposal to reduce the body’s share capital;

                     (c)  a right to vote on a resolution to approve the terms of a buy-back agreement;

                     (d)  a right to vote on a proposal that affects the rights attached to the share;

                     (e)  a right to vote on a proposal to wind the body up;

                      (f)  a right to vote on a proposal for the disposal of the whole of the body’s property, business and undertaking;

                     (g)  a right to vote during the body’s winding up.

wages , in relation to a company, means amounts payable to or in respect of an employee of the company (whether the employee is remunerated by salary, wages, commission or otherwise) under an industrial instrument, including amounts payable by way of allowance or reimbursement but excluding amounts payable in respect of leave of absence.

wholly-owned subsidiary , in relation to a body corporate, means a body corporate none of whose members is a person other than:

                     (a)  the first-mentioned body; or

                     (b)  a nominee of the first-mentioned body; or

                     (c)  a subsidiary of the first-mentioned body, being a subsidiary none of whose members is a person other than:

                              (i)  the first-mentioned body; or

                             (ii)  a nominee of the first-mentioned body; or

                     (d)  a nominee of such a subsidiary.

winding up by the Court includes winding up in insolvency.

wound up by the Court includes wound up in insolvency.



 

Division 2 Associates

10   Effect of Division

             (1)  This Division has effect for the purposes of interpreting a reference (in this Division called the associate reference ), in relation to a person (in this Division called the primary person ), to an associate.

             (2)  A person is not an associate of the primary person except as provided in this Division.

             (3)  Nothing in this Division limits the generality of anything else in it.

11   Associates of bodies corporate

                   If the primary person is a body corporate, the associate reference includes a reference to:

                     (a)  a director or secretary of the body; and

                     (b)  a related body corporate; and

                     (c)  a director or secretary of a related body corporate.

12   Matters relating to voting shares

             (1)  If the associate reference relates to:

                     (a)  the extent of a power to exercise, or to control the exercise of, the voting power attached to voting shares in a body corporate; or

                     (b)  the primary person’s voting power in a body corporate; or

                     (c)  a takeover bid for securities in a body corporate;

it includes a reference to a person with whom the primary person has, or proposes to enter into, a relevant agreement:

                     (d)  because of which one of those persons has or will have power (even if it is in any way qualified):

                              (i)  to exercise; or

                             (ii)  to control, directly or indirectly, the exercise of; or

                            (iii)  to influence substantially the exercise of;

                            any voting power attached to shares in the body;

                     (e)  for the purpose of controlling or influencing:

                              (i)  the composition of the body’s board; or

                             (ii)  the conduct of affairs of the body;

                      (f)  under which one of those persons:

                              (i)  will or may acquire; or

                             (ii)  may be required by the other to acquire;

                            shares in the body in which the other has a relevant interest; or

                     (g)  under which one of those persons may be required to dispose of shares in the body in accordance with the other’s directions;

whatever other effect the relevant agreement may have.

             (2)  In relation to a matter relating to shares in a body corporate, a person may be an associate of the body and the body may be an associate of a person.

13   References in Chapter 7

                   If the associate reference occurs in Chapter 7 and relates to a matter that is not of a kind referred to in paragraph 12(1)(a), (b) or (c), it includes a reference to:

                     (a)  a person in partnership with whom the primary person carries on a securities business; and

                     (b)  subject to subsection 16(2), a person who is a partner of the primary person otherwise than because of carrying on a securities business in partnership with the primary person; and

                     (c)  a trustee of a trust in relation to which the primary person benefits, or is capable of benefiting, otherwise than because of transactions entered into in the ordinary course of business in connection with the lending of money; and

                     (d)  a director of a body corporate of which the primary person is also a director and that carries on a securities business; and

                     (e)  subject to subsection 16(2), a director of a body corporate of which the primary person is also a director and that does not carry on a securities business.

14   References in Chapter 8

                   If it occurs in section 29 or 1323 or Chapter 8, the associate reference includes a reference to:

                     (a)  a person in partnership with whom the primary person carries on a business of dealing in futures contracts; and

                     (b)  subject to subsection 16(2), a person who is a partner of the primary person otherwise than because of carrying on in partnership with the primary person a business of dealing in futures contracts; and

                     (c)  a trustee of a trust in relation to which the primary person benefits, or is capable of benefiting, otherwise than because of transactions entered into in the ordinary course of business in connection with the lending of money; and

                     (d)  a director of a body corporate of which the primary person is also a director and that carries on a business of dealing in futures contracts; and

                     (e)  subject to subsection 16(2), a director of a body corporate of which the primary person is also a director and that does not carry on a business of dealing in futures contracts.

15   General

             (1)  The associate reference includes a reference to:

                     (a)  a person in concert with whom the primary person is acting, or proposes to act; and

                     (b)  a person who, under the regulations, is, for the purposes of the provision in which the associate reference occurs, an associate of the primary person; and

                     (c)  a person with whom the primary person is, or proposes to become, associated, whether formally or informally, in any other way;

in respect of the matter to which the associate reference relates.

             (2)  If the primary person has entered, or proposes to enter, into a transaction, or has done, or proposes to do, any act or thing, in order to become associated with another person as mentioned in an applicable provision of this Division, the associate reference includes a reference to that other person.

16   Exclusions

             (1)  A person is not an associate of another person by virtue of section 12 or subsection 15(1), or by virtue of subsection 15(2) as it applies in relation to section 12 or subsection 15(1), merely because of one or more of the following:

                     (a)  one gives advice to the other, or acts on the other’s behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship;

                     (b)  one, a client, gives specific instructions to the other, whose ordinary business includes dealing in securities, to acquire shares on the client’s behalf in the ordinary course of that business;

                     (c)  one had sent, or proposes to send, to the other an offer under a takeover bid for shares held by the other;

                     (d)  one has appointed the other, otherwise than for valuable consideration given by the other or by an associate of the other, to vote as a proxy or representative at a meeting of members, or of a class of members, of a body corporate.

             (2)  For the purposes of proceedings under this Act in which it is alleged that a person was an associate of another person by virtue of paragraph 13(b) or (e) or 14(b) or (e), the first-mentioned person is not taken to have been an associate of the other person in relation to a matter by virtue of that paragraph unless it is proved that the first-mentioned person knew, or ought to have known, at that time, the material particulars of that matter.

17   Associates of composite persons

                   A reference to an associate, in relation to a dealer, investment adviser, futures broker or futures adviser, is, if 2 or more persons constitute the dealer, investment adviser, futures broker or futures adviser, a reference to an associate of any of those persons.



 

Division 3 Carrying on business

18   Carrying on business: otherwise than for profit

                   A reference to a person carrying on business, carrying on a business, or carrying on a business of a particular kind, includes a reference to the person carrying on business, carrying on a business, or carrying on a business of that kind, as the case may be:

                     (a)  in any case—otherwise than for profit; or

                     (b)  in the case of a body corporate—otherwise than for the profit of the members or corporators of the body.

19   Businesses of a particular kind

                   A reference to a business of a particular kind includes a reference to a business of that kind that is part of, or is carried on in conjunction with, any other business.

20   Carrying on a business: alone or together with others

                   A reference in this Act to a person carrying on a business, or a business of a particular kind, is a reference to the person carrying on a business, or a business of that kind, whether alone or together with any other person or persons.

21   Carrying on business in Australia or a State or Territory

             (1)  A body corporate that has a place of business in Australia, or in a State or Territory, carries on business in Australia, or in that State or Territory, as the case may be.

             (2)  A reference to a body corporate carrying on business in Australia, or in a State or Territory, includes a reference to the body:

                     (a)  establishing or using a share transfer office or share registration office in Australia, or in the State or Territory, as the case may be; or

                     (b)  administering, managing, or otherwise dealing with, property situated in Australia, or in the State or Territory, as the case may be, as an agent, legal personal representative or trustee, whether by employees or agents or otherwise.

             (3)  Despite subsection (2), a body corporate does not carry on business in Australia, or in a State or Territory, merely because, in Australia, or in the State or Territory, as the case may be, the body:

                     (a)  is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute; or

                     (b)  holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or

                     (c)  maintains a bank account; or

                     (d)  effects a sale through an independent contractor; or

                     (e)  solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be; or

                      (f)  creates evidence of a debt, or creates a charge on property; or

                     (g)  secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts; or

                     (h)  conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or

                      (j)  invests any of its funds or holds any property.



 

Division 4 Dealing in futures contracts

23   Acquiring a futures contract

             (1)  A person acquires a futures contract (other than a futures option or an eligible exchange-traded option) if, and only if, the person enters into, or takes an assignment of, the futures contract, whether or not on another’s behalf.

             (2)  A person acquires a futures option or an eligible exchange-traded option if, and only if, the person takes the option, or takes an assignment of the option, whether or not on another’s behalf.

             (3)  This section has effect subject to sections 26 and 27.

24   Disposing of a futures contract

             (1)  A person disposes of a futures contract (other than a futures option or an eligible exchange-traded option) if, and only if, the person takes, or causes to be taken, such action as closes out the futures contract, whether or not the action is taken on another’s behalf.

             (2)  A person disposes of a futures option or an eligible exchange-traded option if, and only if, the person:

                     (a)  grants, assigns or exercises the option; or

                     (b)  takes, or causes to be taken, such action as releases the option; or

                     (c)  allows the option to lapse;

whether or not on another’s behalf.

             (3)  This section has effect subject to sections 26 and 27.

25   Dealing in futures contracts: general

             (1)  Subject to sections 26 and 27, a person deals in a futures contract if, and only if, the person:

                     (a)  acquires, or disposes of, the futures contract; or

                     (b)  offers to acquire, or to dispose of, the futures contract; or

                     (c)  induces, or attempts to induce, another person to acquire, or to dispose of, the futures contract.

             (2)  Subject to sections 26 and 27, a person deals in a futures contract on another person’s behalf if, and only if, the first-mentioned person acquires, or disposes of, the futures contract on the other person’s behalf, or offers so to acquire, or so to dispose of, the futures contract.

             (3)  In determining whether or not a person who is not a resident of Australia or of an external Territory deals in a futures contract on another person’s behalf, an act that the holder of a futures brokers licence or an exempt broker does on the first-mentioned person’s behalf is to be disregarded.

             (4)  Subsection (5) has effect for the purposes of determining:

                     (a)  whether or not a person deals in a futures contract on another person’s behalf; and

                     (c)  what constitutes such a business carried on by a person.

             (5)  An act that the person does:

                     (a)  while employed by, or acting for or by arrangement with, a futures broker; and

                     (b)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the broker; and

                     (c)  in connection with a business of dealing in futures contracts that the broker carries on;

is to be disregarded.

             (6)  Subsections (3), (4) and (5) do not have effect for the purposes of sections 26, 27, 28, 1126 and 1132.

26   Dealing in futures contracts through intermediaries: first step

                   Where a person acquires, disposes of, or otherwise deals in, a futures contract on another person’s behalf, the other person is also taken to acquire, dispose of, or deal in, as the case may be, the futures contract.

27   Dealing in futures contracts through intermediaries: second and later steps

             (1)  Where:

                     (a)  because of instructions given, or any other act done, by a person (in this section called the intermediary ), the intermediary is, by virtue of:

                              (i)  an application of section 26; or

                             (ii)  an application of section 26 and an application, or 2 or more applications, of this section;

                            taken to acquire, dispose of, or deal in, a futures contract; and

                     (b)  the intermediary gave the instructions, or did that other act, on behalf of another person (in this section called the principal );

this section has effect, except for the purposes of section 26.

             (2)  The principal is also taken to acquire, dispose of, or deal in, as the case may be, the futures contract.

             (3)  The intermediary and:

                     (a)  if subparagraph (1)(a)(i) applies—the person who acquires, disposes of, or otherwise deals in, as the case may be; or

                     (b)  if subparagraph (1)(a)(ii) applies—the persons who, by virtue of the applications referred to in that subparagraph, are each taken to acquire, dispose of, or deal in, as the case may be;

the futures contract on the intermediary’s behalf is each taken to acquire, dispose of, or deal in, as the case may be, the futures contract on the principal’s behalf.

28   Dealing in futures contracts, through intermediaries, on futures markets

             (1)  This section has effect where a person acquires, disposes of, or otherwise deals in, a futures contract on a futures market and by virtue of:

                     (a)  an application of section 26; or

                     (b)  an application of section 26 and an application or applications of section 27;

another person:

                     (c)  is also taken to acquire, dispose of, or deal in, the futures contract; or

                     (d)  is taken to acquire, dispose of, or deal in, the futures contract on a third person’s behalf.

             (2)  The other person is taken to acquire, dispose of, or deal in, the futures contract on that futures market, or on the third person’s behalf on that futures market, as the case may be.

29   Own account dealings and transactions: futures contracts

             (1)  A reference to a person dealing in a futures contract, or entering into a transaction in relation to a futures contract, on the person’s own account includes a reference to a person so dealing, or entering into such a transaction, as the case may be, as principal or on behalf of:

                     (a)  in any case—an associate of the person; or

                     (b)  in any case—a body corporate in which the person has a controlling interest; or

                     (c)  if the person carries on a futures broking business in partnership—a body corporate in which the person’s interests and the interests of the other partners together constitute a controlling interest.

             (2)  A futures broker who is a member of a futures exchange or of a recognised futures exchange does not deal in a futures contract, or enter into a transaction in relation to a futures contract, on the broker’s own account merely because the dealing is with, or the transaction is entered into with, another futures broker who is a member of a futures exchange or of a recognised futures exchange.

             (3)  Despite Division 2, a person is not an associate of another person for the purposes of subsection (1) merely because the first-mentioned person is either or both of the following:

                     (a)  a partner of the other person otherwise than because of carrying on in partnership with the other person a business of dealing in futures contracts;

                     (b)  a director of a body corporate of which the other person is also a director, whether or not the body carries on a business of dealing in futures contracts.



 

Division 5A Types of company

45A   Proprietary companies

             (1)  A proprietary company is a company that is registered as, or converts to, a proprietary company under this Act.

Note 1:       A proprietary company can be registered under section 118 or 601BD. A company can convert to a proprietary company under Part 2B.7.

Note 2:       A proprietary company must:

·        be limited by shares or be an unlimited company with a share capital

·        have no more than 50 non-employee shareholders

·        not do anything that would require disclosure to investors under Chapter 6D (except in limited circumstances).

                   (see section 113).

Small proprietary company

             (2)  A proprietary company is a small proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

                     (a)  the consolidated gross operating revenue for the financial year of the company and the entities it controls (if any) is less than $10 million;

                     (b)  the value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is less than $5 million;

                     (c)  the company and the entities it controls (if any) have fewer than 50 employees at the end of the financial year.

Note:          A small proprietary company generally has reduced financial reporting requirements (see subsection 292(2)).

Large proprietary company

             (3)  A proprietary company is a large proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

                     (a)  the consolidated gross operating revenue for the financial year of the company and the entities it controls (if any) is $10 million or more;

                     (b)  the value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is $5 million or more;

                     (c)  the company and the entities it controls (if any) have 50 or more employees at the end of the financial year.

When a company controls an entity

             (4)  For the purposes of this section, the question whether a proprietary company controls an entity is to be decided in accordance with the accounting standards made for the purposes of paragraph 295(2)(d) (even if the standards do not otherwise apply to the company).

Counting employees

             (5)  In counting employees for the purposes of subsections (2) and (3), take part-time employees into account as an appropriate fraction of a full-time equivalent.

Accounting standards

             (6)  Consolidated gross operating revenue and the value of consolidated gross assets are to be calculated for the purposes of this section in accordance with accounting standards in force at the relevant time (even if the standard does not otherwise apply to the financial year of some or all of the companies concerned).



 

Division 6 Subsidiaries and related bodies corporate

46   What is a subsidiary

                   A body corporate (in this section called the first body ) is a subsidiary of another body corporate if, and only if:

                     (a)  the other body:

                              (i)  controls the composition of the first body’s board; or

                             (ii)  is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first body; or

                            (iii)  holds more than one-half of the issued share capital of the first body (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

                     (b)  the first body is a subsidiary of a subsidiary of the other body.

47   Control of a body corporate’s board

                   Without limiting by implication the circumstances in which the composition of a body corporate’s board is taken to be controlled by another body corporate, the composition of the board is taken to be so controlled if the other body, by exercising a power exercisable (whether with or without the consent or concurrence of any other person) by it, can appoint or remove all, or the majority, of the directors of the first-mentioned body, and, for the purposes of this Division, the other body is taken to have power to make such an appointment if:

                     (a)  a person cannot be appointed as a director of the first-mentioned body without the exercise by the other body of such a power in the person’s favour; or

                     (b)  a person’s appointment as a director of the first-mentioned body follows necessarily from the person being a director or other officer of the other body.

48   Matters to be disregarded

             (1)  This section applies for the purposes of determining whether a body corporate (in this section called the first body ) is a subsidiary of another body corporate.

             (2)  Any shares held, or power exercisable, by the other body in a fiduciary capacity are treated as not held or exercisable by it.

             (3)  Subject to subsections (4) and (5), any shares held, or power exercisable:

                     (a)  by a person as a nominee for the other body (except where the other body is concerned only in a fiduciary capacity); or

                     (b)  by, or by a nominee for, a subsidiary of the other body (not being a subsidiary that is concerned only in a fiduciary capacity);

are treated as held or exercisable by the other body.

             (4)  Any shares held, or power exercisable, by a person by virtue of the provisions of debentures of the first body, or of a trust deed for securing an issue of such debentures, are to be disregarded.

             (5)  Any shares held, or power exercisable, otherwise than as mentioned in subsection (4), by, or by a nominee for, the other body or a subsidiary of it are to be treated as not held or exercisable by the other body if:

                     (a)  the ordinary business of the other body or that subsidiary, as the case may be, includes lending money; and

                     (b)  the shares are held, or the power is exercisable, only by way of security given for the purposes of a transaction entered into in the ordinary course of business in connection with lending money, not being a transaction entered into with an associate of the other body, or of that subsidiary, as the case may be.

49   References in this Division to a subsidiary

                   A reference in paragraph 46(b) or 48(3)(b) or subsection 48(5) to being a subsidiary, or to a subsidiary, of a body corporate includes a reference to being a subsidiary, or to a body corporate that is a subsidiary, as the case may be, of the first-mentioned body by virtue of any other application or applications of this Division.

50   Related bodies corporate

                   Where a body corporate is:

                     (a)  a holding company of another body corporate; or

                     (b)  a subsidiary of another body corporate; or

                     (c)  a subsidiary of a holding company of another body corporate;

the first-mentioned body and the other body are related to each other.

50AA   Control

             (1)  For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

             (2)  In determining whether the first entity has this capacity:

                     (a)  the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

                     (b)  any practice or pattern of behaviour affecting the second entity’s financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).

             (3)  The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity’s financial and operating policies.

             (4)  If the first entity:

                     (a)  has the capacity to influence decisions about the second entity’s financial and operating policies; and

                     (b)  is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity’s members;

the first entity is taken not to control the second entity.



 

Division 7 Interpretation of other expressions

51   Acquisition and disposal of shares

                   For the purposes of the definition of deal in section 9 and of Chapter 7, a person acquires shares in a body corporate if, and only if:

                     (a)  the person acquires a relevant interest in those shares as a result of a transaction entered into by or on behalf of the person in relation to those shares, in relation to any other securities of that body corporate or in relation to securities of any other body corporate; or

                     (b)  the person acquires any legal or equitable interest in securities of that body corporate or in securities of any other body corporate and, as a result of the acquisition, another person acquires a relevant interest in those shares.

52   Doing acts

                   A reference to doing an act or thing includes a reference to causing or authorising the act or thing to be done.

52A   Signing

                   Without affecting the law on agency, if this Act requires that something be signed, it can be signed by an individual using a power of attorney from the person required to sign.

53   Affairs of a body corporate

                   For the purposes of the definition of examinable affairs in section 9, section 53AA 232, 233 or 234, paragraph 461(1)(e), section 487, subsection 1307(1) or section 1309, or of a prescribed provision of this Act, the affairs of a body corporate include:

                     (a)  the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with any other person or persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with any other person or persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the body; and

                     (b)  in the case of a body corporate (not being an authorised trustee corporation) that is a trustee (but without limiting the generality of paragraph (a))—matters concerned with the ascertainment of the identity of the persons who are beneficiaries under the trust, their rights under the trust and any payments that they have received, or are entitled to receive, under the terms of the trust; and

                     (c)  the internal management and proceedings of the body; and

                     (d)  any act or thing done (including any contract made and any transaction entered into) by or on behalf of the body, or to or in relation to the body or its business or property, at a time when:

                              (i)  a receiver, or a receiver and manager, is in possession of, or has control over, property of the body; or

                             (ii)  the body is under administration; or

                           (iia)  a deed of company arrangement executed by the body has not yet terminated; or

                            (iii)  a compromise or arrangement made between the body and any other person or persons is being administered; or

                            (iv)  the body is being wound up;

                            and, without limiting the generality of the foregoing, any conduct of such a receiver or such a receiver and manager, of an administrator of the body, of an administrator of such a deed of company arrangement, of a person administering such a compromise or arrangement or of a liquidator or provisional liquidator of the body; and

                     (e)  the ownership of shares in, debentures of, and interests in a managed investment scheme made available by, the body; and

                      (f)  the power of persons to exercise, or to control the exercise of, the rights to vote attached to shares in the body or to dispose of, or to exercise control over the disposal of, such shares; and

                     (g)  matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the body or are or have been able to control or materially to influence the policy of the body; and

                     (h)  the circumstances under which a person acquired or disposed of, or became entitled to acquire or dispose of, shares in, debentures of, or interests in a managed investment scheme made available by, the body; and

                      (j)  where the body has made available interests in a managed investment scheme—any matters concerning the financial or business undertaking, scheme, common enterprise or investment contract to which the interests relate; and

                     (k)  matters relating to or arising out of the audit of, or working papers or reports of an auditor concerning, any matters referred to in a preceding paragraph.

53AA   Business affairs of a body corporate

                   A body corporate’s business affairs include (without limitation):

                     (a)  any of the body’s affairs (including anything that is included in the body’s affairs because of section 53); and

                     (b)  matters concerned with ascertaining the corporations with which the body is or has been connected.

53AB   Business affairs of a natural person

                   A natural person’s business affairs include (without limitation):

                     (a)  the person’s examinable operations and examinable assets and liabilities; and

                     (b)  any act done (including any contract made and any transaction entered into) by or on behalf of the person, or to or in relation to the person or his or her business or property, at a time when:

                              (i)  the person was, under the Bankruptcy Act 1966 or the law of an external Territory, a bankrupt in respect of a bankruptcy from which the person had not been discharged; or

                             (ii)  the person had, under a law of an external Territory or of a foreign country, the status of an undischarged bankrupt; or

                            (iii)  the person’s property was subject to control under Division 2 of Part X of the Bankruptcy Act 1966 because of an authority given by the person under section 188 of that Act; or

                            (iv)  a deed of assignment, deed of arrangement, or composition, under Part X of the Bankruptcy Act 1966 or under the corresponding provisions of the law of an external Territory or of a foreign country was in effect in relation to the person or the person’s property; and

                     (c)  without limiting the generality of paragraph (b), any conduct of the trustee of such a bankrupt estate or of such a deed of assignment or arrangement, a person acting under such an authority or a person administering such a composition; and

                     (d)  matters concerned with ascertaining the corporations with which the person is or has been connected.

53AC   Business affairs of a partnership

                   A partnership’s business affairs include (without limitation):

                     (a)  the partnership’s promotion, formation, membership, control, examinable operations and examinable assets and liabilities; and

                     (b)  the partnership’s management and proceedings; and

                     (c)  any act done (including any contract made and any transaction entered into) by or on behalf of the partnership, or to or in relation to the partnership, at a time when the partnership is being wound up; and

                     (d)  matters concerned with ascertaining the corporations with which the partnership is or has been connected.

53AD   Business affairs of a trust

                   A trust’s business affairs include (without limitation):

                     (a)  the creation of the trust; and

                     (b)  matters arising under, or otherwise relating to, the terms of the trust; and

                     (c)  the appointment and removal of a trustee of the trust; and

                     (d)  the business, trading, transactions and dealings of the trustee of the trust; and

                     (e)  the profits, income and receipts of the trustee of the trust; and

                      (f)  the losses, outgoings and expenditure of the trustee of the trust; and

                     (g)  the trust property, including transactions and dealings in, and the income arising from, the trust property; and

                     (h)  the liabilities of the trustee of the trust; and

                      (j)  the management of the trust; and

                     (k)  any act done (including any contract made and any transaction entered into) by or on behalf of the trustee of the trust, or to or in relation to the trust, at a time when the trust is being wound up; and

                      (l)  matters concerned with ascertaining the corporations with which the trust is or has been connected.

54   Chapter 8 agreements of the same kind

                   A Chapter 8 agreement is of the same kind as another Chapter 8 agreement if, and only if, the provisions of the first-mentioned Chapter 8 agreement are the same as, or not materially different from, the provisions of the other Chapter 8 agreement, disregarding:

                     (a)  the fact that the parties to the respective Chapter 8 agreements are different; and

                     (b)  any difference in the amounts payable under corresponding provisions of the respective Chapter 8 agreements.

55   Chapter 8 obligations and rights

             (1)  A Chapter 8 obligation, or a Chapter 8 right, is an obligation or right, as the case may be, whether or not enforceable at law or in equity.

             (2)  A reference to a Chapter 8 obligation of a particular kind includes a reference to alternative Chapter 8 obligations one of which is a Chapter 8 obligation of that kind.

56   Classes of futures organisation membership

                   A reference to a member, in relation to a body corporate that is, or proposes to become, a futures organisation, is, if the body may operate otherwise than as a futures organisation and any of the rules, regulations or by-laws made by the body or contained in its constituent documents provide for:

                     (a)  a separate class of membership for persons to whom the operation of the body otherwise than as a futures organisation relates (whether or not such persons may be members within another class of membership); or

                     (b)  2 or more such separate classes of membership;

a reference to a person in the person’s capacity as a member of the body in a class of membership other than that separate class or those separate classes, as the case may be.

57   Classes of shares or interests in managed investment schemes

             (1)  The shares in a body corporate, if not divided into 2 or more classes, constitute a class.

             (2)  If the interests in a managed investment scheme to which an undertaking relates are not divided into 2 or more classes, they constitute a class.

57A   Meaning of corporation

             (1)  Subject to this section, in this Act, corporation includes:

                     (a)  a company; and

                     (b)  any body corporate (whether incorporated in this jurisdiction or elsewhere); and

                     (c)  an unincorporated body that under the law of its place of origin, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose.

             (2)  Neither of the following is a corporation :

                     (a)  an exempt public authority;

                     (b)  a corporation sole.

58AA   Meaning of court and Court

             (1)  Subject to subsection (2), in this Act:

court means any court.

Court means any of the following courts:

                     (a)  the Federal Court;

                     (b)  the Supreme Court of a State or Territory;

                     (c)  the Family Court of Australia;

                     (d)  a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

             (2)  Except where there is a clear expression of a contrary intention (for example, by use of the expression “the Court”), proceedings in relation to a matter under this Act may, subject to Part 9.7, be brought in any court.

Note:          The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.

58B   Discharge of obligations under this Act

             (2)  Subject to subsection (3), an act required to be done under this Act may, for the purposes of this Act, be done anywhere in Australia, whether in or outside this jurisdiction.

             (3)  Nothing in subsection (2) affects the operation of any provision of this Act that:

                     (a)  expressly requires a particular act to be done in this jurisdiction; or

                     (b)  expressly or by implication permits a particular act to be done outside Australia.

59   Debentures as consideration for acquisition of shares

                   A reference to a body corporate that offers debentures as consideration for the acquisition of shares in a body corporate includes a reference to a body corporate that offers a cash sum as consideration for the acquisition of shares where it is to be a term of the contract for the acquisition of those shares that the offeree makes, or that the sum is applied in whole or in part in making, a payment by way of deposit with, or loan to, the body corporate that offers the sum.

61   Discretionary accounts

                   A reference to operation by a futures broker on a discretionary account is a reference to dealings by the broker in futures contracts on instructions of another person that authorise the broker to deal in futures contracts without the prior approval of that other person, whether:

                     (a)  the instructions are given by, and the money used for operating on the account is provided by, one person only; or

                     (b)  the instructions are given by, and the money used for operating on the account is contributed as a common fund by, each of a number of persons;

not being dealings on instructions that authorise dealings in futures contracts without the prior approval of that other person only as to the time when or the price at which the dealings are to be effected, or both.

64   Entering into a transaction in relation to shares or securities

                   A reference in section 51 or Chapter 6 to entering into a transaction in relation to shares or securities includes a reference to:

                     (a)  entering into, or becoming a party to, a relevant agreement in relation to the shares or securities; and

                     (b)  exercising an option to have the shares or securities allotted.

64A   Entities

                   Except in Chapter 2E, a reference to an entity:

                     (a)  is a reference to a natural person, a body corporate (other than an exempt public authority), a partnership or a trust; and

                     (b)  includes, in the case of a trust, a reference to the trustee of the trust.

64B   Entities connected with a corporation

Body corporate

             (1)  A body corporate is connected with a corporation if, and only if, the corporation:

                     (a)  can control, or influence materially, the body’s activities or internal affairs; or

                     (b)  is a member of the body; or

                     (c)  is in a position to cast, or to control the casting of, a vote at a general meeting of the body; or

                     (d)  has power to dispose of, or to exercise control over the disposal of, a share in the body; or

                     (e)  is financially interested in the body’s success or failure or apparent success or failure; or

                      (f)  is owed a debt by the body; or

                     (g)  is engaged by the body under a contract for services; or

                     (h)  acts as agent for the body in any transaction or dealing.

Natural person

             (2)  A natural person is connected with a corporation if, and only if, the corporation:

                     (a)  is a trustee of a trust under which the person is capable of benefiting; or

                     (b)  is engaged by the person under a contract for services; or

                     (c)  acts as agent for the person in any transaction or dealing; or

                     (d)  is an attorney of the person under a power of attorney; or

                     (e)  has appointed the person as the corporation’s attorney under a power of attorney; or

                      (f)  is given financial, business or legal advice by the person in the performance of the functions attaching to the person’s professional capacity.

Partnership

             (3)  A partnership is connected with a corporation if, and only if, the corporation:

                     (a)  is a partner in the partnership; or

                     (b)  can control, or influence materially, the partnership’s activities or internal affairs; or

                     (c)  is financially interested in the partnership’s success or failure or apparent success or failure; or

                     (d)  is a creditor of the partnership; or

                     (e)  is engaged by the partnership under a contract for services; or

                      (f)  acts as agent for the partnership in any transaction or dealing.

Trust

             (4)  A trust is connected with a corporation if, and only if, the corporation:

                     (a)  is the settlor, or one of the settlors, of the trust; or

                     (b)  has power under the terms of the trust to appoint or remove a trustee of the trust or to vary, or cause to be varied, any of the terms of the trust; or

                     (c)  is a trustee of the trust; or

                     (d)  can control, or influence materially, the activities of the trust; or

                     (e)  is capable of benefiting under the trust; or

                      (f)  is a creditor of the trustee of the trust; or

                     (g)  is engaged by the trustee of the trust under a contract for services; or

                     (h)  acts as agent for the trustee of the trust in any transaction or dealing.

65   Eligible money market dealer

                   ASIC may declare a body corporate to be an authorised dealer in the short term money market by notice published in the Gazette .

66A   Exempt bodies

                   A body corporate is an exempt body of a State or Territory if, and only if, it:

                     (a)  is not a company; and

                     (b)  is incorporated by or under a law of the State or Territory.

67   Exempt brokers and exempt futures advisers

             (1)  A body corporate is both an exempt broker and an exempt futures adviser if it is:

                     (a)  a prescribed body corporate; or

                     (b)  an exempt public authority in relation to which a declaration is in force under subsection (2).

             (2)  The Minister may by writing declare that paragraph (1)(b) applies in relation to specified bodies corporate.

             (3)  ASIC must cause a copy of an instrument executed under subsection (2) to be published in the Gazette .

             (4)  Subject to this section, a person is an exempt broker or an exempt futures adviser if the person is a futures broker or futures adviser, as the case may be, but does not carry on a futures broking business or a futures advice business, as the case may be, except:

                     (a)  as an official receiver or trustee within the meaning of the Bankruptcy Act 1966 ; or

                     (b)  as a receiver, receiver and manager, or liquidator, appointed by a court; or

                     (c)  as a person appointed by a court to carry on the business concerned; or

                     (d)  as a receiver, receiver and manager, or liquidator, appointed otherwise than by a court; or

                     (e)  as an administrator of a body corporate; or

                    (ea)  as an administrator of a deed of company arrangement executed by a body corporate; or

                      (f)  as a trustee or other person administering a compromise or arrangement between a body corporate and any other person or persons; or

                     (g)  as a personal representative of a dead futures broker or futures adviser, as the case may be; or

                     (h)  in such other capacity, or in such other circumstances, as are prescribed.

             (5)  A person who carries on a futures broking business or futures advice business in a capacity referred to in any of paragraphs (4)(d) to (g) (inclusive) is taken for the purposes of subsection (4) to carry on the business otherwise than in that capacity unless there is in force under subsection (6) an approval of the person carrying on the business in that capacity.

             (6)  ASIC may, on application by a person and after having regard to:

                     (a)  the prescribed matters (if any); and

                     (b)  such matters as it thinks appropriate;

by writing approve of the person carrying on a specified futures broking business or futures advice business in a specified capacity, being a capacity referred to in any of paragraphs (4)(d) to (g), inclusive.

             (7)  A person is not an exempt broker or an exempt futures adviser except as provided by this section.

68   Exempt dealers and exempt investment advisers

             (1)  A person is both an exempt dealer and an exempt investment adviser if the person is:

                     (a)  an eligible money market dealer; or

                     (b)  an exempt public authority.

             (2)  Subject to this section, a person is an exempt dealer or an exempt investment adviser if the person is a dealer or investment adviser, as the case may be, but does not carry on a securities business or an investment advice business, as the case may be, except:

                     (a)  as an official receiver or trustee within the meaning of the Bankruptcy Act 1966 ; or

                     (b)  as a receiver, receiver and manager, or liquidator, appointed by a court; or

                     (c)  as a person appointed by a court to carry on the business concerned; or

                     (d)  by virtue of the person’s powers, as Public Trustee, under a prescribed law of a State or Territory; or

                     (e)  as a receiver, receiver and manager, or liquidator, appointed otherwise than by a court; or

                      (f)  as an administrator of a body corporate; or

                    (fa)  as an administrator of a deed of company arrangement executed by a body corporate; or

                     (g)  as a trustee or other person administering a compromise or arrangement between a body corporate and any other person or persons; or

                     (h)  as a personal representative of a dead dealer or investment adviser, as the case may be; or

                      (j)  in such other capacity, or in such other circumstances, as are prescribed.

             (3)  A body corporate that carries on, or holds itself out as carrying on, a business of dealing in debentures of that body is an exempt dealer if it neither carries on, nor holds itself out as carrying on, a business of dealing in any other securities.

             (4)  A person who carries on a securities business or investment advice business in a capacity referred to in any of paragraphs (2)(e) to (h) (inclusive) is taken for the purposes of subsection (2) to carry on the business otherwise than in that capacity unless there is in force under subsection (5) an approval of the person carrying on the business in that capacity.

             (5)  ASIC may, on application by a person and after having regard to:

                     (a)  the prescribed matters (if any); and

                     (b)  such matters as it thinks appropriate;

by writing approve of the person carrying on a specified securities business or investment advice business in a specified capacity, being a capacity referred to in any of paragraphs (2)(e) to (h), inclusive.

             (6)  A person who carries on a securities business or investment advice business as a personal representative of a dead dealer or investment adviser, as the case may be, is taken for the purposes of subsection (2) to stop carrying on that business as such a personal representative:

                     (a)  at the end of 6 months after the death of the dealer or investment adviser; or

                     (b)  on being discharged or removed as a personal representative of the dealer or investment adviser; or

                     (c)  on the final distribution of the estate of the dealer or investment adviser;

whichever happens first.

             (7)  A person is not an exempt dealer or an exempt investment adviser except as provided by this section.

70   Extension of period for doing an act

                   Where this Act confers power to extend the period for doing an act, an application for the exercise of the power may be made, and the power may be exercised, even if the period, or the period as last extended, as the case requires, has ended.

71   Futures advice business

             (1)  A reference to a futures advice business, in relation to a person, is a reference to:

                     (a)  a business of advising other persons about futures contracts; or

                     (b)  a business in the course of which the person publishes futures reports.

             (3)  The remaining provisions of this subsection apply for the purposes of determining:

                     (a)  whether or not a person carries on a futures advice business; and

                     (b)  what constitutes a futures advice business carried on by a person; and

                     (c)  whether or not a person holds himself, herself or itself out to be a futures adviser.

             (4)  If the person is a solicitor or accountant in public practice as such, an act that the person does is to be disregarded if it is merely incidental to the practice of his or her profession.

             (5)  The fact that the person advises other persons about futures contracts, or publishes futures reports, in some or all of the following circumstances is to be disregarded:

                     (a)  in a newspaper or periodical:

                              (i)  of which the person is the proprietor or publisher; and

                             (ii)  that is generally available to the public otherwise than only on subscription;

                     (b)  in the course of, or by means of, transmissions that:

                              (i)  the person makes by means of an information service; or

                             (ii)  are made by means of an information service that the person owns, operates or makes available;

                            and are generally available to the public;

                     (c)  in sound recordings, video recordings, or data recordings, that the person makes generally available to the public in either or both of the following ways:

                              (i)  by supplying copies of them to the public;

                             (ii)  by causing the sound recordings to be heard by, the video recordings to be seen and heard by, or the contents of the data recordings to be displayed or reproduced for, the public, as the case may be.

             (6)  Subsection (5) does not apply in relation to a newspaper or periodical, or transmissions, sound recordings, video recordings or data recordings, whose sole or principal purpose is to advise other persons about futures contracts or to publish futures reports.

             (7)  The fact that the person holds himself, herself or itself out as advising other persons, or publishing futures reports, as mentioned in subsection (5) is to be disregarded.

             (8)  An act that the person does:

                     (a)  while employed by, or acting for or by arrangement with, another person; and

                     (b)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the other person; and

                     (c)  in connection with a futures advice business carried on by the other person;

is to be disregarded.

72   Futures contract

             (1)  A futures contract is:

                     (a)  a Chapter 8 agreement that is, or has at any time been, an eligible commodity agreement or adjustment agreement; or

                     (b)  a futures option; or

                     (c)  an eligible exchange-traded option;

other than:

                     (d)  a Chapter 8 agreement:

                              (i)  that is:

                                        (A)  a currency swap; or

                                        (B)  an interest rate swap; or

                                        (C)  a forward exchange rate contract; or

                                        (D)  a forward interest rate contract; and

                             (ii)  to which an Australian bank, or a merchant bank as defined by subsection (4), is a party; or

                     (e)  a Chapter 8 agreement that, when entered into, is in a class of agreements prescribed for the purposes of this paragraph.

Note:          Regulations under subsection 72A(2) may provide that specified provisions of this Act and the regulations apply in relation to Chapter 8 agreements to which section 72A applies as if the agreements were futures contracts.

             (2)  Where a Chapter 8 agreement that was not a futures contract when it was entered into becomes a futures contract at a later time:

                     (a)  the parties to the Chapter 8 agreement are taken to enter into a futures contract at the later time; and

                     (b)  the Chapter 8 agreement is taken to constitute the futures contract referred to in paragraph (a).

             (3)  Nothing in this Act limits the manner in which a class of futures contracts may be determined and such a class may be determined according to any criteria relevant to futures contracts.

             (4)  For the purposes of subparagraph (1)(d)(ii), a body corporate is a merchant bank at a particular time if, and only if, it is at that time a registered corporation in:

                     (a)  the category for authorised money market dealers or, if there is at that time no such category, a prescribed category; or

                     (b)  the category for money market corporations or, if there is at that time no such category, a prescribed category.

             (5)  An expression has the same meaning in subsection (4) as in the Financial Corporations Act 1974 .

72A   Act applies to certain Chapter 8 agreements as if they were futures contracts

             (1)  This section applies to Chapter 8 agreements:

                     (a)  that are entered into on a futures market of a futures exchange; and

                     (b)  that are of a kind prescribed for the purposes of this paragraph.

             (2)  The regulations may, in relation to Chapter 8 agreements to which this section applies:

                     (a)  provide that specified provisions of this Act and the regulations apply in relation to the agreements as if the agreements were futures contracts; and

                     (b)  provide that specified provisions of this Act and the regulations do not apply in relation to the agreements; and

                     (c)  make modifications of this Act and the regulations as applying in relation to the agreements.

             (3)  Modifications made by regulations referred to in paragraph (2)(c) may be of provisions specified in regulations referred to in paragraph (2)(a) or of other provisions of this Act or the regulations.

73   Futures representatives

             (1)  Subject to subsection (2), a person is a futures representative of another person if, and only if, the first-mentioned person:

                     (a)  is employed by; or

                     (b)  acts for or by arrangement with;

the other person in connection with a futures broking business or futures advice business carried on by the other person.

             (2)  Except for the purposes of paragraph 87(1)(b):

                     (a)  a person who holds a proper authority from a futures licensee is a futures representative of the licensee; and

                     (b)  a person who holds an invalid futures authority from another person is a futures representative of the other person.

             (3)  Subject to subsection (4), a person does an act, or engages in conduct, as a futures representative of another person if, and only if, the first-mentioned person does the act, or engages in the conduct:

                     (a)  in connection with a futures broking business or futures advice business carried on by the other person; and

                     (b)  while the first-mentioned person is a futures representative of the other person; and

                     (c)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the other person; and

                     (d)  otherwise than in the course of work of a kind ordinarily done by accountants, clerks or cashiers.

             (4)  Except for the purposes of Division 4 of Part 8.3, a person who holds himself, herself or itself out to be a futures representative of another person does an act as a futures representative of the other person.

73A   When a court is taken to find a person guilty of an offence

                   An Australian court finds a person guilty of an offence if, and only if:

                     (a)  the court convicts the person of the offence; or

                     (b)  the person is charged before the court with the offence and is found in the court to have committed the offence, but the court does not proceed to convict the person of the offence.

75   Inclusion in official list

                   A reference to a body corporate or other person included in an official list of a body corporate is a reference to:

                     (a)  a body corporate or other person whose name is included in that official list; or

                     (b)  a body corporate or other person whose name has been changed but whose previous name was included in that official list immediately before the change and is still so included.

77   Investment advice business

             (1)  A reference to an investment advice business, in relation to a person, is a reference to:

                     (a)  a business of advising other persons about securities; or

                     (b)  a business in the course of which the person publishes securities reports.

             (3)  The remaining provisions of this section apply for the purposes of determining:

                     (a)  whether or not a person carries on an investment advice business; and

                     (b)  what constitutes an investment advice business carried on by a person; and

                     (c)  whether or not a person holds himself, herself, or itself out to be an investment adviser.

             (4)  If the person is a body corporate authorised by a law of a State or Territory to take in its own name a grant of probate of the will, or a grant of letters of administration of the estate, of a dead person, an act done by the first-mentioned person is to be disregarded.

             (5)  If the person is a solicitor or accountant in public practice as such, an act that the person does is to be disregarded if it is merely incidental to the practice of his or her profession.

             (6)  The fact that the person advises other persons about securities, or publishes securities reports, in some or all of the following circumstances is to be disregarded:

                     (a)  in a newspaper or periodical:

                              (i)  of which the person is the proprietor or publisher; and

                             (ii)  that is generally available to the public otherwise than only on subscription;

                     (b)  in the course of, or by means of, transmissions that:

                              (i)  the person makes by means of an information service; or

                             (ii)  are made by means of an information service that the person owns, operates or makes available;

                            and are generally available to the public;

                     (c)  in sound recordings, video recordings, or data recordings, that the person makes generally available to the public in either or both of the following ways:

                              (i)  by supplying copies of them to the public; or

                             (ii)  by causing the sound recordings to be heard by, the video recordings to be seen and heard by, or the contents of the data recordings to be displayed or reproduced for, the public, as the case may be.

             (7)  Subsection (6) does not apply in relation to a newspaper or periodical, or transmissions, sound recordings, video recordings or data recordings, as the case may be, whose sole or principal purpose is to advise other persons about securities or to publish securities reports.

             (8)  The fact that the person holds himself, herself or itself out as advising other persons, or publishing securities reports, as mentioned in subsection (6) is to be disregarded.

             (9)  An act that the person does:

                     (a)  while employed by, or acting for or by arrangement with, another person; and

                     (b)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the other person; and

                     (c)  in connection with an investment advice business carried on by the other person;

is to be disregarded.

79   Involvement in contraventions

                   A person is involved in a contravention if, and only if, the person:

                     (a)  has aided, abetted, counselled or procured the contravention; or

                     (b)  has induced, whether by threats or promises or otherwise, the contravention; or

                     (c)  has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or

                     (d)  has conspired with others to effect the contravention.

80   Jervis Bay Territory taken to be part of the Australian Capital Territory

                   The Jervis Bay Territory is taken to be part of the Australian Capital Territory.

82   Offers and invitations to the public

                   A reference in this Act to, or to the making of, an offer to the public or to, or to the issuing of, an invitation to the public is, unless the contrary intention appears, to be construed as including a reference to, or to the making of, an offer to any section of the public or to, or to the issuing of, an invitation to any section of the public, as the case may be, whether selected as clients of the person making the offer or issuing the invitation or in any other manner and notwithstanding that the offer is capable of acceptance only by each person to whom it is made or that an offer or application may be made pursuant to the invitation only by a person to whom the invitation is issued, but a bona fide offer or invitation is not taken to be an offer or invitation to the public if it:

                     (a)  is an offer or invitation to enter into an underwriting agreement; or

                     (b)  is made or issued to a person whose ordinary business is to buy or sell shares, debentures or interests in managed investment schemes, whether as principal or agent; or

                     (c)  is made or issued to existing members or debenture holders of a corporation and relates to shares in, or debentures of, that corporation; or

                     (d)  is made or issued to existing members of a company in connection with a proposal referred to in section 507 and relates to shares in that company.

82A   Officers of bodies corporate and other entities

             (1)  Subject to subsection (2), officer , in relation to:

                     (a)  a body corporate; or

                     (b)  an entity;

includes:

                     (c)  a director, secretary, executive officer or employee of the body or entity; and

                     (d)  a receiver and manager, appointed under a power contained in an instrument, of property of the body or entity; and

                     (e)  an administrator of the body or entity; and

                    (ea)  an administrator of a deed of company arrangement executed by the body or entity; and

                      (f)  a liquidator of the body or entity appointed in a voluntary winding up of the body or entity; and

                     (g)  a trustee or other person administering a compromise or arrangement made between the body or entity and any other person or persons.

             (2)  None of the following is an officer of a body corporate, or of an entity:

                     (a)  a receiver who is not also a manager;

                     (b)  a receiver and manager appointed by a court;

                     (c)  a liquidator appointed by a court.

83   Officers, and other persons, in default

                   A reference, in relation to a contravention, to an officer of a body corporate, or to a person, who is in default is a reference to an officer of the body (including a person who later ceases to be such an officer), or to a person, as the case may be, who is involved in the contravention.

84   Own account dealings and transactions: securities

                   A person deals in, or enters into a transaction of sale or purchase of, securities on the person’s own account if, and only if, the person deals in the securities, or enters into the transaction, as principal or on behalf of:

                     (a)  in any case—an associate of the person; or

                     (b)  in any case—a body corporate in which the person has a controlling interest; or

                     (c)  if the person carries on a securities business in partnership—a body corporate in which the person’s interest and the interests of the other partners together constitute a controlling interest.

86   Possession

                   A thing that is in a person’s custody or under a person’s control is in the person’s possession.

87   Proper authority from futures licensee; invalid futures authority

             (1)  A reference, in relation to a person (in this subsection called the representative ), to a proper authority from a futures licensee (in this subsection called the principal ) is a reference to a copy of the licence on which have been endorsed:

                     (a)  a statement:

                              (i)  certifying the copy to be a true copy of the licence; and

                             (ii)  stating that the representative is employed by, or acts for or by arrangement with, the principal; and

                            (iii)  signed by the principal; and

                     (b)  in relation to each futures licensee (if any), other than the principal, of whom the representative is a futures representative, a statement that:

                              (i)  sets out the name of the licensee; and

                             (ii)  states that the representative is employed by, or acts for or by arrangement with, the licensee; and

                            (iii)  states that the licensee consents to the representative being employed by, or acting for or by arrangement with, the principal; and

                            (iv)  is signed by the licensee.

             (2)  A reference, in relation to a person (in this subsection called the representative ), to an invalid futures authority from a person (in this subsection called the principal ) is a reference to a document:

                     (a)  on which is endorsed a statement:

                              (i)  stating that the representative is employed by, or acts for or by arrangement with, the principal; and

                             (ii)  signed by the principal; and

                     (b)  that purports to be a copy of a futures licence and to be a proper authority of the representative from the principal, but is not in fact such a proper authority;

whether or not:

                     (c)  the principal is, or has ever been, a futures licensee; or

                     (d)  the document is in fact a copy of a futures licence that exists or has ever existed.

             (3)  For the purposes of this section, a statement is signed by a person if, and only if, it is signed:

                     (a)  if the person is a natural person—by the person; or

                     (b)  if the person is a body corporate:

                              (i)  by a director or secretary; or

                             (ii)  by an executive officer who is authorised to sign the statement.

88   Proper authority from securities licensee; invalid securities authority

             (1)  A reference, in relation to a person (in this subsection called the representative ), to a proper authority from a securities licensee (in this subsection called the principal ) is a reference to a copy of the licence on which are endorsed:

                     (a)  a statement:

                              (i)  certifying the copy to be a true copy of the licence; and

                             (ii)  stating that the representative is employed by, or acts for or by arrangement with, the principal; and

                            (iii)  signed by the principal; and

                     (b)  in relation to each licensee (if any), other than the principal, of whom the representative is a securities representative, a statement that:

                              (i)  sets out the name of the licensee; and

                             (ii)  states that the representative is employed by, or acts for or by arrangement with, the licensee; and

                            (iii)  states that the licensee consents to the representative being employed by, or acting for or by arrangement with, the principal; and

                            (iv)  is signed by the licensee.

             (2)  A reference, in relation to a person (in this subsection called the representative ), to an invalid securities authority from a person (in this subsection called the principal ) is a reference to a document:

                     (a)  on which is endorsed a statement:

                              (i)  stating that the representative is employed by, or acts for or by arrangement with, the principal; and

                             (ii)  signed by the principal; and

                     (b)  that purports to be a copy of a securities licence and to be a proper authority of the representative from the principal, but is not in fact such a proper authority;

whether or not:

                     (c)  the principal is, or has ever been, a securities licensee; or

                     (d)  the document is in fact a copy of a securities licence that exists or has ever existed.

             (3)  For the purposes of this section, a statement is signed by a person if, and only if, it is signed:

                     (a)  if the person is a natural person—by the person; or

                     (b)  if the person is a body corporate:

                              (i)  by a director or secretary; or

                             (ii)  by an executive officer who is authorised to sign the statement.

88A   Public document of a body corporate

             (1)  Subject to this section, public document , in relation to a body, means:

                     (a)  an instrument of, or purporting to be signed, issued or published by or on behalf of, the body that:

                              (i)  when signed, issued or published, is intended to be lodged or is required by or under this Act or the ASIC Act to be lodged; or

                             (ii)  is signed, issued or published under or for the purposes of this Act, the ASIC Act or any other Australian law; or

                     (b)  an instrument of, or purporting to be signed or issued by or on behalf of, the body that is signed or issued in the course of, or for the purposes of, a particular transaction or dealing; or

                     (c)  without limiting paragraph (a) or (b), a business letter, statement of account, invoice, receipt, order for goods, order for services or official notice of, or purporting to be signed or issued by or on behalf of, the body.

             (2)  A thing is not a public document of a body if it:

                     (a)  is applied, or is intended or required to be applied:

                              (i)  to goods; or

                             (ii)  to a package, label, reel or thing in or with which goods are, or are to be, supplied; and

                     (b)  is so applied, or is intended or required to be so applied, for a purpose connected with the supply of the goods.

             (3)  In subsection (2):

apply to includes print on, weave in, impress on, work into, or annex, affix or attach to.

label includes a band or ticket.

package includes:

                     (a)  a covering, stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper; or

                     (b)  any other container or thing in which goods are, or are to be, packed.

89   Qualified privilege

             (1)  Where this Act provides that a person has qualified privilege in respect of an act, matter or thing, the person:

                     (a)  has qualified privilege in proceedings for defamation; or

                     (b)  is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;

as the case requires, in respect of that act, matter or thing.

             (2)  In subsection (1):

malice includes ill will to the person concerned or any other improper motive.

             (3)  Neither this section nor a provision of this Act that provides as mentioned in subsection (1) limits or affects any right, privilege or immunity that a person has, apart from this section or such a provision, as defendant in proceedings, or an action, for defamation.

90   Receivers and managers

                   A receiver of property of a body corporate is also a manager if the receiver manages, or has under the terms of the receiver’s appointment power to manage, affairs of the body.

91   Being or becoming subject to a section 206B prohibition, a section 206D or 206E order, a section 206F notice

             (1)  For the purposes of this Act, a person is taken to be or become subject to a section 206B prohibition if, and only if, the person is or becomes, as the case may be, by virtue of section 206B, prohibited as mentioned in that section.

             (2)  For the purposes of this Act, a person is taken to be or become subject to a section 206D order if, and only if, an order relating to the person is in force, or is made, as the case may be, under section 206D, and a reference in this Act to a section 599 order is a reference to an order so in force or made.

             (3)  For the purposes of this Act, a person is taken to be or become subject to a section 206E order if, and only if, an order relating to the person is in force, or is made, as the case may be, under section 206E, and a reference in this Act to a section 230 order is a reference to an order so in force or made.

             (4)  For the purposes of this Act, a person is taken to be or become subject to a section 206F notice if, and only if, a notice relating to the person is in force, or is served, as the case may be, under section 206F, and a reference in this Act to a section 600 notice is a reference to a notice so in force or served.

             (5)  For the purposes of this section, an order or notice that prohibits a person for a specified period from engaging in particular conduct is, unless sooner revoked, taken to cease to be in force at the end of that period.

92   Securities

             (1)  Subject to this section, securities means:

                     (a)  debentures, stocks or bonds issued or proposed to be issued by a government; or

                     (b)  shares in, or debentures of, a body; or

                     (c)  interests in a managed investment scheme; or

                    (ca)  in Parts 7.3 to 7.6 (inclusive)—interests that would be interests in a managed investment scheme but for paragraph (h) of the definition of managed investment scheme in section 9; or

                     (d)  units of such shares; or

                     (e)  an option contract within the meaning of Chapter 7;

but does not include a futures contract or an excluded security.

Note:          Regulations under subsection 92A(2) may provide that specified provisions of this Act and the regulations apply in relation to relevant agreements to which section 92A applies as if the agreements were securities.

             (2)  The expression securities , when used in relation to a body, means:

                     (a)  shares in the body; or

                     (b)  debentures of the body; or

                     (c)  interests in a managed investment scheme made available by the body; or

                    (ca)  in Parts 7.3 to 7.6 (inclusive)—interests made available by the body that would be interests in a managed investment scheme but for paragraph (h) of the definition of managed investment scheme in section 9; or

                     (d)  units of such shares;

but does not include a futures contract or an excluded security.

          (2A)  In Parts 7.3 to 7.6 (inclusive):

securities includes an interest in a benefit fund (within the meaning of the Life Insurance Act 1995 ).

Note:          See section 16B of the Life Insurance Act 1995 .

             (3)  In Chapters 6 to 6D (inclusive):

securities means:

                     (a)  shares in a body; or

                     (b)  debentures of a body; or

                     (c)  interests in a registered managed investment scheme; or

                     (d)  legal or equitable rights or interests in:

                              (i)  shares; or

                             (ii)  debentures; or

                            (iii)  interests in a registered managed investment scheme;

                     (e)  options to acquire (whether by way of issue or transfer) a security covered by paragraph (a), (b), (c) or (d).

It does not cover a futures contract or an option approved by a securities exchange as an exchange traded option.

Note:          Section 9 defines body and sections 9 and 72 define futures contract .

92A   Act applies to certain relevant agreements as if they were securities

             (1)  This section applies to relevant agreements (whether or not they are futures contracts):

                     (a)  that are entered into on a stock market of a securities exchange; and

                     (b)  that are of a kind prescribed for the purposes of this paragraph.

             (2)  The regulations may, in relation to relevant agreements to which this section applies:

                     (a)  provide that specified provisions of this Act and the regulations apply in relation to the agreements as if the agreements were securities; and

                     (b)  provide that specified provisions of this Act and the regulations do not apply in relation to the agreements; and

                     (c)  make modifications of this Act and the regulations as applying in relation to the agreements.

             (3)  Modifications made by regulations referred to in paragraph (2)(c) may be of provisions specified in regulations referred to in paragraph (2)(a) or of other provisions of this Act or the regulations.

93   Securities business

             (1)  A securities business is a business of dealing in securities.

             (3)  Subsections (5), (6) and (7) apply for the purposes of determining:

                     (a)  whether or not a person carries on, or holds himself, herself or itself out as carrying on, a securities business; and

                     (b)  what constitutes such a business carried on by a person.

             (4)  Subsection (7) also applies for the purposes of determining whether or not a person deals in securities.

             (5)  An act done on behalf of the person by the holder of a dealers licence or an exempt dealer is to be disregarded.

             (6)  An act that the person does:

                     (a)  while employed by, or acting for or by arrangement with, a dealer; and

                     (b)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the dealer; and

                     (c)  in connection with a securities business carried on by the dealer;

is to be disregarded.

             (7)  An act or acts done by the person that constitutes or together constitute a dealing by the person in a futures contract is to be disregarded.

94   Securities representatives

             (1)  Subject to subsection (2), a person is a securities representative of another person if, and only if, the first-mentioned person:

                     (a)  is employed by; or

                     (b)  acts for or by arrangement with;

the other person in connection with a securities business or investment advice business carried on by the other person.

             (2)  Except for the purposes of paragraph 88(1)(b):

                     (a)  a person who holds a proper authority from a securities licensee is a securities representative of the licensee; and

                     (b)  a person who holds an invalid securities authority from another person is a securities representative of the other person.

             (3)  Subject to subsection (4), a person does an act, or engages in conduct, as a securities representative of another person if, and only if, the first-mentioned person does the act, or engages in the conduct:

                     (a)  in connection with a securities business or investment advice business carried on by the other person; and

                     (b)  while the first-mentioned person is a securities representative of the other person; and

                     (c)  as employee or agent of, or otherwise on behalf of, on account of, or for the benefit of, the other person; and

                     (d)  otherwise than in the course of work of a kind ordinarily done by accountants, clerks or cashiers.

             (4)  Except for the purposes of Division 4 of Part 7.3, a person who holds himself, herself or itself out to be a securities representative of another person does an act as a securities representative of the other person.

95A   Solvency and insolvency

             (1)  A person is solvent if, and only if, the person is able to pay all the person’s debts, as and when they become due and payable.

             (2)  A person who is not solvent is insolvent.

             (3)  Section 922 defines when a person becomes insolvent for the purposes of Part 7.10.

97   Stock market not to include futures market

                   In determining whether a market, exchange, place or facility is a stock market, regard is not to be had to the making at that market, exchange or other place, or by means of that facility, as the case may be, of futures contracts.



 

Division 8 Miscellaneous interpretation rules

100   Address of registered office etc.

             (1)  Where a provision of this Act requires a notice to be lodged of, or information in an application to specify:

                     (a)  the address of an office, or of a proposed office, of a body corporate or other person; or

                     (b)  a change in the situation of an office of a body corporate or other person;

the notice:

                     (c)  must specify the full address, or the full new address, as the case requires, of the relevant office including, where applicable, the number of the room and of the floor or level of the building on which the office is situated; and

                     (d)  where the notice or application relates to the address or situation of an office of a body corporate and the address specified in accordance with paragraph (a) is the address of premises that are not to be occupied by the body corporate—must include a written statement to the effect that the person who occupies those premises has consented in writing to the address being specified in the notice or application and has not withdrawn that consent.

             (2)  ASIC may require a person who has lodged a notice or application that includes a statement under paragraph (1)(d) to produce to ASIC the consent referred to in the statement.

100A   Operation of certain laws relating to instruments on which stamp duty has not been paid

                   Nothing in this Act affects the operation of any provision of any law:

                     (a)  relating to the admissibility in evidence, or any other use, in any proceedings, of a document in respect of which any applicable stamp duty has not been paid; or

                     (b)  prohibiting the registration by a company of a transfer of securities if any stamp duty applicable in respect of the transfer has not been paid.

101   Amount of stock representing a number of shares

                   In relation to a body corporate the whole or a portion of whose share capital consists of stock, a reference to a number of shares (including a number expressed as a percentage) is, in relation to an amount of stock, a reference to the amount of stock that represents that number of shares.

102   Applications to be in writing

                   An application to ASIC for the issuing of a document or the doing of any other act or thing by ASIC under this Act must be in writing.

Note:          For electronic lodgment of documents with ASIC, see section 352.

102B   In Australia or elsewhere , in this jurisdiction or elsewhere etc.

             (1)  The expression in Australia or elsewhere , or a similar expression, does not limit the generality of the expression in this jurisdiction or elsewhere or a similar expression.

             (2)  The expression outside this jurisdiction includes places outside Australia.

102C   In Australia

                   In Australia means in Australia (whether in this jurisdiction or not).

Note:          This definition is needed if there is a State that is not a referring State. If all the States are referring States, every place in Australia will also be in this jurisdiction.

103   Effect of certain contraventions of this Act

             (1)  This section has effect except so far as this Act otherwise provides.

             (2)  An act, transaction, agreement, instrument, matter or thing is not invalid merely because of:

                     (a)  a contravention of section 115, 208, 209, 601CA, 601CD or of Chapter 8; or

                     (b)  a failure to comply with a requirement of this Act that a person cause a notice, or a copy of a document, to be published in the Gazette or in a newspaper.

             (4)  In this section:

invalid includes void, voidable and unenforceable.

             (5)  Nothing in this section limits the generality of anything else in it.

104   Effect of provisions empowering a person to require or prohibit conduct

                   Where, in accordance with a provision of this Act other than the replaceable rules, a person requires another person to do, or prohibits another person from doing, a particular act, that provision is taken to require the other person to comply with the requirement or prohibition, as the case may be.

105   Calculation of time

                   Without limiting subsection 36(1) of the Acts Interpretation Act 1901 , in calculating how many days a particular day, act or event is before or after another day, act or event, the first-mentioned day, or the day of the first-mentioned act or event, is to be counted but not the other day, or the day of the other act or event.

106   Performance of functions by Commission delegate

                   For the purpose of the performance of a function, or the exercise of a power, under this Act by a Commission delegate, a reference to ASIC in a provision of this Act relating to the performance of the function, or the exercise of the power, includes a reference to the Commission delegate.

108   Parts of dollar to be disregarded in determining majority in value of creditors etc.

                   In determining whether a majority in value of creditors, or a particular proportion in value of creditors, has passed a resolution or done any other act or thing, if a creditor’s debt consists of a number of whole dollars and a part of a dollar, the part of the dollar is to be disregarded.

109   References to persons, things and matters

             (1)  Except so far as the contrary intention appears, a provision of this Act is to be interpreted in such a manner that any 2 or more references in the provision are capable of having the same referent or referents, or of having a referent or referents in common, as the case requires.

             (2)  In subsection (1), referent , in relation to a reference in a provision, means:

                     (a)  in so far as the reference is interpreted as being in the singular number—a person to whom, or a thing or matter to which; or

                     (b)  in so far as the reference is interpreted as being in the plural number—any one or 2 or more persons to whom, or of 2 or more things or matters to which;

the reference is taken, in the application of the provision, to refer.

109X   Service of documents

             (1)  For the purposes of any law, a document may be served on a company by:

                     (a)  leaving it at, or posting it to, the company’s registered office; or

                     (b)  delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or

                     (c)  if a liquidator of the company has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or

                     (d)  if an administrator of the company has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC.

             (2)  For the purposes of any law, a document may be served on a director or company secretary (in addition to the methods of service set out in subsection (4)) by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary:

                     (a)  in their capacity as a director or company secretary; or

                     (b)  for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary.

             (3)  Subsections (1) and (2) do not apply to a process, order or document that may be served under section 9 of the Service and Execution of Process Act 1992 .

             (6)  This section does not affect the operation of a law or the power of a court to authorise a document to be served in a different way.

             (7)  This section applies to provisions of a law dealing with service whether it uses the expression “serve” or uses any other similar expression such as “give” or “send”.