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Australian Securities and Investments Commission Bill 2001

Part 10 The Corporations and Securities Panel

Division 1 General

172   Membership

             (1)  The Panel consists of such members, not fewer than 5, as hold office in accordance with this Part.

Note:          The Panel was established by section 171 of the Australian Securities and Investments Commission Act 1989 and is continued in existence by section 261 of this Act.

             (2)  The Governor-General is to appoint the members on the nomination of the Minister.

             (3)  Each of the members may be appointed as a full-time member or as a part-time member.

             (4)  The Minister must nominate a person as a member only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields, namely, business, the administration of companies, the financial markets, law, economics and accounting.

          (4A)  Each person who is the Minister for a State in this jurisdiction or the Northern Territory may from time to time give to the Minister the names of persons who, in the opinion of the first-mentioned Minister:

                     (a)  are qualified for appointment as members of the Panel by virtue of their knowledge of, or experience in, one or more of the following fields, namely, business, the administration of companies, the financial markets, law, economics and accounting; and

                     (b)  ought to be considered for appointment as members of the Panel.

          (4B)  In nominating persons as members of the Panel, the Minister must ensure so far as practicable that, at any time, at least one member of the Panel is a person whose name has been given to the Minister under subsection (4A).

             (5)  The performance of the functions or the exercise of the powers of the Panel is not affected merely because its membership is not as prescribed by subsections (1) and (3), unless a continuous period of 3 months has elapsed since its membership ceased to be as so prescribed.

173   President

                   The Governor-General is to appoint as President of the Panel a person who is, or is to be, a member.

174   Functions and powers of Panel

                   The Panel has the functions and powers conferred on it by or under the corporations legislation (other than the excluded provisions).

175   Term of office as member

             (1)  Subject to this Act, a person appointed as a member holds office for such term of at most 5 years as is specified in the instrument of appointment, but is eligible for re-appointment.

             (2)  A person who has attained the age of 65 years must not be appointed as a full-time member.

             (3)  A person must not be appointed as a full-time member for a term extending beyond the day on which he or she will attain the age of 65 years.

176   Term of office as President

             (1)  Subject to this Act, a person appointed as President holds office as such until:

                     (a)  the end of his or her current term as a member; or

                     (b)  he or she otherwise stops being a member;

whichever happens first.

             (2)  A person is not ineligible to be appointed under section 173 merely because he or she has been so appointed before.

177   Resignation

                   A person may resign as a member or President by writing signed and delivered to the Governor-General.

178   Termination of appointment

             (1)  The Governor-General may terminate a member’s appointment because of misbehaviour, or the physical or mental incapacity, of the member or if the member:

                     (a)  becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or assigns remuneration or property for their benefit; or

                     (b)  is a full-time member and engages without the Minister’s consent in paid employment outside the duties of the member’s office; or

                     (c)  is a full-time member and is absent from duty, except on leave granted in accordance with section 180, for 14 consecutive days, or for 28 days in any period of 12 months; or

                     (d)  contravenes section 128; or

                     (e)  without reasonable excuse, contravenes section 185.

             (2)  The Governor-General may, with the consent of a full-time member who is an eligible employee, retire the member from office on the ground of incapacity.

179   Remuneration and allowances

             (1)  A member must be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by the Tribunal is in operation, a member must be paid such remuneration as the Minister determines in writing.

             (2)  A member must be paid such allowances as the Minister determines in writing.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973 .

180   Leave of absence

             (1)  A full-time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Minister may grant a full-time member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

181   Other terms and conditions

                   A member holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as the Minister determines in writing.

182   Acting President

             (1)  The Minister may appoint a member to act as President:

                     (a)  during a vacancy in the office of President, whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when the President is absent from office.

             (2)  A person appointed under subsection (1) to act during a vacancy must not continue for more than 12 months to act during the vacancy.

183   Annual report

             (1)  The Panel must, as soon as practicable after 30 June, and in any event before 31 October, in each year:

                     (a)  prepare a report describing the operations of the Panel during the year that ended on 30 June in that year; and

                     (b)  give to the Minister a copy of the report.

             (2)  Where a copy of a report is given to the Minister under subsection (1), he or she must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after he or she receives the first-mentioned copy.



 

Division 2 Conduct of Panel’s business

184   Constitution of Panel in relation to particular matters

             (1)  The Panel must, for the purposes of the performance or exercise of its functions or powers in relation to a particular matter, be constituted by 3 members in respect of whom a direction is in force under this section in relation to that matter.

             (2)  The President may give directions about the members (the sitting members ) who are to constitute the Panel for the purposes of performing or exercising its functions or powers in relation to particular matters.

             (3)  A direction under subsection (2) must:

                     (a)  unless the sitting members include the President—designate one of them as President; and

                     (b)  in any case—designate one of the sitting members as Deputy President;

of the Panel as constituted in relation to the matter concerned.

             (4)  Where the President gives a direction as to the sitting members, he or she may:

                     (a)  at any time after the giving of the direction and before the commencement of proceedings in relation to the matter; or

                     (b)  if one of those persons ceases to be a member, or ceases to be available for the purposes of proceedings in relation to a matter, during the proceedings or after the completion of the proceedings but before the matter to which the proceedings relate is determined—at any time after the person so ceases to be a member or to be available;

revoke the direction and give a further direction under subsection (2) as to the additional members.

          (4A)  The regulations may make provision in relation to the constitution of the Panel for the purposes of conducting a review under section 657EA or 657EB of the Corporations Act.

             (5)  In this section:

functions or powers means functions or powers of the Panel under the corporations legislation (other than the excluded provisions).

185   Disclosure of interests by members

             (1)  Where a member is, or is to be, a member of the Panel as constituted for the purposes of the performance or exercise of its functions or powers in relation to a particular matter and the member has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to that matter:

                     (a)  the member must disclose the interest to the President and to the parties involved in the matter; and

                     (b)  except with the President’s consent, the member must not take part in the performance or exercise of the Panel’s functions or powers in relation to the matter.

          (1A)  The President must not, under paragraph (1)(b), consent to a member taking part in the performance or exercise of the Panel’s functions or powers in relation to a matter unless the President believes, on reasonable grounds, that the member’s interest is immaterial or indirect and will not prevent the member from acting impartially in relation to the matter.

             (2)  Where the President becomes aware that a member who is, or is to be, a member of the Panel as constituted for the purposes of the performance or exercise of its functions or powers in relation to a particular matter has in relation to that matter such an interest as is mentioned in subsection (1), then:

                     (a)  the President must revoke the direction given under subsection 184(2) in relation to the matter unless the President believes, on reasonable grounds, that the member’s interest is immaterial or indirect and will not prevent the member from acting impartially in relation to the matter; or

                     (b)  if the President is not required to revoke that direction under paragraph (a), the President must cause the member’s interest to be disclosed to the parties involved in the matter.

             (3)  In this section:

functions or powers means functions or powers of the Panel under the corporations legislation (other than the excluded provisions).

186   Application of Divisions 2 and 3 of Part 7

                   Divisions 2 and 3 of Part 7 apply in relation to the Panel, and in relation to a member of the Panel, as if:

                     (a)  a reference in section 127 to ASIC included a reference to the Panel; and

                     (b)  a reference in paragraph 128(1)(a) to a member of ASIC included a reference to a member of the Panel.



 

Division 3 Panel proceedings

187   Interpretation

                   For the purposes of the performance or exercise, in relation to a particular matter, of any of the Panel’s functions and powers, this Division has effect as if:

                     (a)  a reference to the Panel were a reference to the Panel as constituted in relation to that matter; and

                     (b)  a reference to a member were a reference to a member of the Panel as so constituted; and

                     (c)  if the President is not a member of the Panel as so constituted—a reference to the President were a reference to the member designated, in a direction in force under subsection 184(2), as the President of the Panel as so constituted; and

                     (d)  a reference to the Deputy President were a reference to the member designated, in a direction in force under subsection 184(2), as Deputy President of the Panel as so constituted.

188  Power to conduct proceedings

             (1)  The Panel may conduct proceedings for the purposes of the performance or exercise of any of its functions and powers.

             (2)  The President may convene proceedings to be held at a place and time he or she determines.

190   Panel may restrict publication of certain material

             (1)  Where, during Panel proceedings, the Panel is satisfied that it is desirable to do so, the Panel may give directions preventing or restricting the publication of submissions or evidence made or given to, or of matters contained in documents lodged with, the Panel.

             (2)  In determining whether or not to give a direction under subsection (1), the Panel must have regard to:

                     (a)  whether submissions or evidence made or given, or that may be made or given, or a matter that has arisen or may arise, during the proceedings is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against an Australian law; and

                     (b)  any unfair prejudice to a person’s reputation that would be likely to be caused unless the Panel exercises its powers under this section; and

                     (c)  whether it is in the public interest that the Panel exercises its powers under this section; and

                     (d)  any other relevant matter.

             (3)  In this section:

Panel proceedings includes a part of Panel proceedings.

192   Power to summon witnesses and take evidence

             (1)  A member may, by written summons in the prescribed form given to a person:

                     (a)  require the person to appear before the Panel at Panel proceedings to give evidence, to produce specified documents, or to do both; and

                     (b)  require the person to attend from day to day unless excused, or released from further attendance, by a member.

             (2)  In Panel proceedings, the Panel may take evidence on oath or affirmation, and for that purpose a member may:

                     (a)  require a witness in the proceedings to either take an oath or make an affirmation; and

                     (b)  administer an oath or affirmation to a witness in the proceedings.

             (3)  The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.

             (4)  The member presiding at Panel proceedings:

                     (a)  may require a witness in the proceedings to answer a question put to the witness; and

                     (b)  may require a person appearing in the proceedings pursuant to a summons issued under this section to produce a document specified in the summons.

             (6)  If:

                     (a)  a person appears in Panel proceedings pursuant to a summons issued under this section; and

                     (b)  the summons was issued at a person’s request;

the person appearing is entitled to be paid the prescribed allowances and expenses (if any) by the person at whose request the summons was issued.

             (7)  The Panel may pay such amount as it thinks reasonable on account of the costs and expenses (if any) that a person incurs in complying with a requirement made under this section.

193   Quorum

                   In Panel proceedings, 2 members form a quorum.

194   Legal representation in proceedings before the Panel

                   A party to Panel proceedings may be legally represented in the proceedings only with the leave of the Panel.

195   Procedure

             (1)  Subject to subsections (2) to (4), the Panel may determine the procedural rules to be followed in Panel proceedings.

             (2)  Panel proceedings are to be conducted in accordance with (in order of priority):

                     (a)  the requirements of this Division; and

                     (b)  the requirements of the regulations.

             (3)  Without limiting paragraph (2)(b), the regulations may deal with:

                     (a)  making submissions or giving evidence in Panel proceedings; and

                     (b)  the right (if any) to appear, or be represented, in Panel proceedings; and

                     (c)  the matters that the Panel is to take into account when making a decision in the course of Panel proceedings.

             (4)  The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of this Act or the regulations made under it, apply to Panel proceedings.

197   Protection of members etc.

             (1)  A member has, in the performance or exercise of any of his or her functions and powers as a member in relation to Panel proceedings, the same protection and immunity as a Justice of the High Court.

             (3)  Subject to this Act, a person who is required by a summons under section 192 to appear in Panel proceedings, or a witness in Panel proceedings, has the same protection as a witness in a proceeding in the High Court.

198   Non-compliance with requirements made under section 192

                   A person must not, without reasonable excuse, fail to comply with a requirement made under subsection 192(1), (2) or (4).

Penalty:  10 penalty units or imprisonment for 3 months, or both.

199   False evidence

             (1)  A person must not:

                     (a)  in a written submission given to the Panel for the purposes of Panel proceedings; or

                     (b)  while appearing before the Panel in Panel proceedings;

give information or evidence that is false or misleading in a material particular.

Penalty:  10 penalty units or imprisonment for 3 months, or both.

             (2)  It is a defence to a prosecution for a contravention of subsection (1) if it is proved that the defendant, when giving the information or evidence, believed on reasonable grounds that it was true and not misleading.

200   Contempt of Panel

             (1)  A person must not:

                     (a)  obstruct or hinder the Panel or a member in the performance or exercise of any of the Panel’s functions and powers; or

                     (b)  disrupt Panel proceedings.

Penalty:  50 penalty units or imprisonment for 1 year, or both.

             (2)  A person must not, without reasonable excuse, contravene a direction given under subsection 190(1).

Penalty:  50 penalty units or imprisonment for 1 year, or both.

             (3)  An offence constituted by a contravention of subsection (1) or (2) is punishable on summary conviction.

201   Powers of Court where non-compliance with section 192

             (1)  This section applies where the Panel, as constituted for the purposes of particular Panel proceedings, is satisfied that a person has, without reasonable excuse, failed to comply with a requirement made under section 192 in, or in relation to, those proceedings.

             (2)  The Panel as so constituted may by writing certify the failure to the Court.

             (3)  If the Panel does so, the Court may inquire into the case and may order the person to comply with the requirement as specified in the order.

201A   Undertakings to the Panel

             (1)  In Panel proceedings, the Panel may accept a written undertaking from a person affected, or likely to be affected, by the proceedings about a matter relevant to the proceedings.

             (2)  The person may withdraw or vary the undertaking at any time, but only with the consent of the Panel.

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

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

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

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

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