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Australian Securities and Investments Commission Bill 2001

Part 1 Preliminary

Division 1 Objects

1   Objects

             (1)  The objects of this Act are:

                     (a)  to provide for the Australian Securities and Investments Commission ( ASIC ) which will administer such laws of the Commonwealth, a State or a Territory as confer functions and powers under those laws on ASIC; and

                     (b)  to provide for ASIC’s functions, powers and business; and

                     (c)  to establish a Companies and Securities Advisory Committee to provide informed and expert advice to the Minister about the content, operation and administration of the corporations legislation (other than the excluded provisions), about corporations and about the securities markets and futures markets; and

                     (d)  to establish a Corporations and Securities Panel, a Companies Auditors and Liquidators Disciplinary Board, a Financial Reporting Council, an Australian Accounting Standards Board and a Parliamentary Joint Committee on Corporations and Securities.

             (2)  In performing its functions and exercising its powers, ASIC must strive to:

                     (a)  maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and

                     (b)  promote the confident and informed participation of investors and consumers in the financial system; and

                     (d)  administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and

                     (e)  receive, process and store, efficiently and quickly, the information given to ASIC under the laws that confer functions and powers on it; and

                      (f)  ensure that information is available as soon as practicable for access by the public; and

                     (g)  take whatever action it can take, and is necessary, in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it.

             (3)  This Act has effect, and is to be interpreted, accordingly.



 

Division 2 Citation

1A   Short title

                   This Act may be cited as the Australian Securities and Investments Commission Act 2001 .



 

Division 3 Commencement and application

2   Commencement

                   This Act commences at the same time as the Corporations Act 2001 .

4   Application of this Act

                   This Act applies:

                     (a)  in this jurisdiction; and

                     (b)  in a State that is not a referring State (but only to the extent to which the application would be within the legislative powers of the Parliament (including powers it has under paragraphs 51(xxxvii) and (xxxix) of the Constitution)); and

                     (c)  in such external Territories (if any) as are prescribed.



 

Division 4 Interpretation

5   Interpretation

             (1)  In this Act, unless the contrary intention appears:

AASB means the Australian Accounting Standards Board.

absent from office , in relation to a holder of an office, means:

                     (a)  absent from duty or from Australia; or

                     (b)  unable, for any reason, to perform the functions of the office.

affairs , in relation to a body corporate, has the same meaning as in section 232 of the Corporations Act.

APRA means the Australian Prudential Regulation Authority.

ASIC means the Australian Securities and Investments Commission.

ASIC delegate means a person to whom, or a body to which, a function or power is delegated under section 102.

assist , in relation to an ASIC delegate, means:

                     (a)  to perform functions:

                              (i)  as a member, officer or employee of the ASIC delegate; and

                             (ii)  in connection with the ASIC delegate’s performance or exercise of a function or power delegated under section 102; or

                     (b)  to perform services for the ASIC delegate in connection with the ASIC delegate’s performance or exercise of a function or power delegated under section 102.

Australia includes an external Territory to which this Act applies.

books includes:

                     (a)  a register; and

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

                     (c)  a document; and

                     (d)  banker’s books; and

                     (e)  any other record of information.

CASAC means the Companies and Securities Advisory Committee.

Chairperson means:

                     (a)  except in Part 11 or in relation to the Disciplinary Board—the Chairperson of ASIC; and

                     (b)  in Part 11 or in relation to the Disciplinary Board—the Chairperson of the Disciplinary Board.

contravention , in relation to a law, includes an ancillary offence relating to an offence against that law.

Convenor means the Convenor of CASAC.

Corporations Act means the Corporations Act 2001 and regulations made under that Act.

corporations legislation means:

                     (a)  this Act; and

                     (b)  the Corporations Act.

court , except in section 248, includes a tribunal having power to require the production of documents or the answering of questions.

Deputy Chairperson means the Deputy Chairperson of ASIC.

Disciplinary Board means the Companies Auditors and Liquidators Disciplinary Board.

eligible employee has the same meaning as in the Superannuation Act 1976 .

eligible person , in relation to a person, means a person who:

                     (a)  if the first-mentioned person is a body corporate—is or has been an officer of the body within the meaning of the corporations legislation (other than the excluded provisions); or

                     (b)  in any case:

                              (i)  is or has been an employee, agent, banker, solicitor or auditor of; or

                             (ii)  is acting, or has acted, in any other capacity on behalf of;

                            the first-mentioned person.

examination means an examination of a person pursuant to a requirement made under section 19.

excluded provisions means section 12A and Division 2 of Part 2.

expenses , in relation to an investigation under Division 1 of Part 3, includes costs and expenses incurred in relation to a proceeding begun under section 50 as a result of the investigation.

fail means refuse or fail.

foreign country means:

                     (a)  an external Territory to which this Act does not apply; or

                     (b)  a country outside Australia and the external Territories; or

                     (c)  a part of such a country.

FRC means the Financial Reporting Council.

give has:

                     (a)  in relation to a document—a meaning affected by section 86; and

                     (b)  in relation to information—a meaning affected by section 6.

hearing , in this section and Part 3, means a hearing before ASIC and, in sections 52, 54, 55 and 56, includes a part of such a hearing.

House means a House of the Parliament.

information has a meaning affected by section 6.

international accounting standards means accounting standards made by:

                     (a)  the Board of the International Accounting Standards Committee; or

                     (b)  another body specified by the regulations.

investigate , in relation to ASIC, means investigate in the course of performing or exercising any of ASIC’s functions and powers.

meeting means:

                     (a)  in Part 4—a meeting of ASIC;

                     (b)  in Part 9—a meeting of CASAC;

                     (c)  in Part 11—a meeting of the Disciplinary Board.

member means:

                     (a)  except in Division 2 of Part 4, in Part 9, 10, 11, 12 or 14, or in relation to a Division, CASAC, the Panel, the Disciplinary Board, the FRC, the AASB or the Parliamentary Committee—a member of ASIC; and

                     (b)  in Part 9 or in relation to CASAC—a member of CASAC; and

                     (c)  in Part 10 or in relation to the Panel—a member of the Panel; and

                     (d)  in Part 11 or in relation to the Disciplinary Board—the Chairperson or any other member of the Disciplinary Board; and

                     (e)  in relation to the FRC—a member of the FRC; and

                    (ea)  in relation to the AASB—a member of the AASB; and

                      (f)  in Part 14 or in relation to the Parliamentary Committee—a member of the Parliamentary Committee.

officer , in relation to a body corporate, includes:

                     (a)  a director, secretary, executive officer or employee of the body; and

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

                    (ba)  an administrator of the body; and

                    (bb)  an administrator of a deed of company arrangement executed by the body; and

                     (c)  an official manager, or a deputy official manager, of the body; and

                     (d)  a liquidator, or a provisional liquidator, of the body; and

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

Panel means the Corporations and Securities Panel.

Panel proceedings means proceedings before the Panel on:

                     (a)  an application made to the Panel under the Corporations Act; or

                     (b)  a reference of a decision to the Panel for review under the Corporations Act.

Parliamentary Committee means the Parliamentary Joint Committee on Corporations and Securities.

power includes an authority.

prescribed means prescribed by this Act or the regulations.

President means the President of the Panel.

proceeding means:

                     (a)  a proceeding in a court; or

                     (b)  a proceeding or hearing before, or an examination by or before, a tribunal;

whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature.

produce , except in Part 3, includes permit access to.

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 and money.

record , in relation to an examination, means the whole or a part of a record made under section 24 of statements made at the examination.

regulations means regulations made under this Act.

report includes an interim report.

staff member means:

                     (a)  a member of the staff referred to in subsection 120(1) or a person employed under subsection 120(3); or

                     (b)  a person engaged under subsection 121(1); or

                     (c)  any of the officers, employees and persons who under section 122 are to assist ASIC.

statement , in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination.

superannuation benefits includes:

                     (a)  benefits in the nature of superannuation benefits; and

                     (b)  benefits similar to benefits provided under the Superannuation Act 1976 ; and

                     (c)  benefits similar to the benefits provided under the Superannuation Act 1990 .

Territory means:

                     (a)  the Capital Territory; or

                     (b)  the Northern Territory; or

                     (c)  an external Territory to which this Act applies;

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

this Act includes the regulations.

tribunal means:

                     (a)  a tribunal in Australia; or

                     (b)  any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence.

trust money means money ASIC receives or holds on trust.

witness :

                     (a)  in relation to a hearing before ASIC, means a person appearing at the hearing to give evidence; or

                     (b)  in relation to Panel proceedings, means a person appearing in the proceedings to give evidence.

written record , in relation to an examination, means:

                     (a)  a record of the examination:

                              (i)  that is made in writing; or

                             (ii)  as reduced to writing; or

                     (b)  a part of such a record.

             (2)  Subject to this Act, an expression has the same meaning in this Act as in the Corporations Act.

             (3)  Except so far as the contrary intention appears in this Act, Parts 1.2 and 1.3 of the Corporations Act apply for the purposes of this Act as if the provisions of this Act were provisions of that Act.

5A   Application of Acts Interpretation Act 1901

             (1)  The Acts Interpretation Act 1901 as in force on 1 November 2000 applies to this Act.

             (2)  Amendments of the Acts Interpretation Act 1901 made after 1 November 2000 do not apply to this Act.

6   Giving information

                   A reference in this Act to giving information includes a reference to:

                     (a)  explaining or stating a matter; or

                     (b)  identifying a person, matter or thing; or

                     (c)  disclosing information; or

                     (d)  answering a question.