Title Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017
Database Amendments
Date 17-10-2017 10:24 AM
Source Senate
System Id legislation/amend/r5886_amend_ef8b244d-bd64-44d2-921d-214493563601


Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017

2016‑2017

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017

 

 

(1)     Schedule 1, item 7, page 10 (lines 8 to 31), omit subsection 415D(1), substitute:

Stay on enforcing rights

             (1)  A right cannot be enforced against a body for:

                     (a)  the reason that the body, if it is a disclosing entity, has publicly announced that it will be making an application under section 411 for the purpose of avoiding being wound up in insolvency; or

                     (b)  the reason that the body is the subject of an application under section 411; or

                     (c)  the reason that the body is the subject of a compromise or arrangement approved under this Part as a result of an application under section 411; or

                     (d)  the body’s financial position, if the body is the subject of such an announcement, application, compromise or arrangement; or

                     (e)  a reason, prescribed by the regulations for the purposes of this paragraph, that relates to:

                              (i)  the making, or possible making, of such an announcement, application, compromise or arrangement about the body; or

                             (ii)  the body’s financial position;

                            if such an announcement, application, compromise or arrangement is later made about the body; or

                      (f)  a reason that, in substance, is contrary to this subsection;

if the right arises for that reason by express provision (however described) of a contract, agreement or arrangement.

Note:          This result is subject to subsections (5), (6) and (8), and to any order under section 415E.

Example:    A right to terminate a contract will not be enforceable to the extent that those rights are triggered by the body becoming the subject of such an announcement, application, compromise or arrangement.

[anti‑avoidance measure]

(2)     Schedule 1, item 7, page 12 (line 6), at the end of subsection 415D(4), add:

               ; or (d)  is a reason referred to in paragraph (1)(e) or (f).

[anti‑avoidance measure]

(3)     Schedule 1, item 7, page 13 (lines 1 to 5), omit subsection 415D(8), substitute:

             (8)  If the application under section 411 results in the approval under this Part of a compromise or arrangement, subsection (1) does not apply to the right to the extent that:

                     (a)  the person appointed to administer the compromise or arrangement; or

                     (b)  if a liquidator of the body is appointed after the start of the stay period—the liquidator;

has consented in writing to the enforcement of the right.

[waiving the stay]

(4)     Schedule 1, item 7, page 14 (lines 19 and 20), omit “a reason referred to in paragraphs 415D(1)(a) to (d)”, substitute “one or more reasons referred to in paragraphs 415D(1)(a) to (f)”.

[anti‑avoidance measure]

(5)     Schedule 1, item 7, page 15 (after line 15), after section 415F, insert:

415FA  Self‑executing provisions

             (1)  The object of subsection (2) is to ensure that a self‑executing provision:

                     (a)  cannot start to apply against a body for certain reasons; and

                     (b)  can be the subject of a Court order providing that the provision can only start to apply against a body with the leave of the Court, and in accordance with such terms (if any) as the Court imposes.

             (2)  Sections 415D to 415F also apply in relation to a self‑executing provision in a corresponding way to the way they apply in relation to a right. For this purpose, assume those sections apply with such modifications as are necessary, including any prescribed by the regulations for the purposes of this subsection.

Note 1:       This subsection achieves the object in subsection (1) by extending the application of all of the outcomes, exceptions and powers in sections 415D to 415F.

Note 2:       These modifications include, for example, treating:

(a)    a reference that a right cannot be enforced (however described) as including a reference that a self‑executing provision cannot start to apply; and

(b)    the words “if the right arises for that reason by express provision (however described) of a contract, agreement or arrangement” as being omitted from subsection 415D(1); and

(c)    a reference that one or more rights are enforceable as including a reference that one or more self‑executing provisions can start to apply; and

(d)    paragraph 415F(2)(b) as alternatively providing that the Court is satisfied that one or more reasons referred to in paragraphs 415D(1)(a) to (f) can cause the self‑executing provisions to start to apply.

             (3)  In this section:

self‑executing provision means a provision of a contract, agreement or arrangement that can start to apply automatically:

                     (a)  for one or more reasons; and

                     (b)  without any party to the contract, agreement or arrangement making a decision that the provision should start to apply.

[anti‑avoidance measure]

(6)     Schedule 1, item 7, page 15 (line 17), omit “415F”, substitute “415FA”.

[anti‑avoidance measure]

(7)     Schedule 1, item 8, page 15 (line 27) to page 16 (line 17), omit subsection 434J(1), substitute:

Stay on enforcing rights

             (1)  A right cannot be enforced against a corporation for:

                     (a)  the reason of the appointment or existence of a managing controller of the whole or substantially the whole of the corporation’s property; or

                     (b)  the corporation’s financial position, if there is a managing controller of the whole or substantially the whole of the corporation’s property; or

                     (c)  a reason, prescribed by the regulations for the purposes of this paragraph, that relates to:

                              (i)  the appointing, or possible appointing, of a managing controller of the whole or substantially the whole of the corporation’s property; or

                             (ii)  the corporation’s financial position;

                            if such an appointment is later made for the whole or substantially the whole of the corporation’s property; or

                     (d)  a reason that, in substance, is contrary to this subsection;

if the right arises for that reason by express provision (however described) of a contract, agreement or arrangement.

Note:          This result is subject to subsections (5) and (7), and to any order under section 434K.

Example:    A right to terminate a contract will not be enforceable to the extent that those rights are triggered by the appointment of a managing controller.

[anti‑avoidance measure]

(8)     Schedule 1, item 8, page 17 (line 13), at the end of subsection 434J(4), add:

               ; or (d)  is a reason referred to in paragraph (1)(c) or (d).

[anti‑avoidance measure]

(9)     Schedule 1, item 8, page 19 (line 16), omit “a reason referred to in paragraph 434J(1)(a) or (b)”, substitute “one or more reasons referred to in paragraphs 434J(1)(a) to (d)”.

[anti‑avoidance measure]

(10)   Schedule 1, item 8, page 20 (after line 3), after section 434L, insert:

434LA  Self‑executing provisions

             (1)  The object of subsection (2) is to ensure that a self‑executing provision:

                     (a)  cannot start to apply against a corporation for certain reasons; and

                     (b)  can be the subject of a Court order providing that the provision can only start to apply against a corporation with the leave of the Court, and in accordance with such terms (if any) as the Court imposes.

             (2)  Sections 434J to 434L also apply in relation to a self‑executing provision in a corresponding way to the way they apply in relation to a right. For this purpose, assume those sections apply with such modifications as are necessary, including any prescribed by the regulations for the purposes of this subsection.

Note 1:       This subsection achieves the object in subsection (1) by extending the application of all of the outcomes, exceptions and powers in sections 434J to 434L.

Note 2:       These modifications include, for example, treating:

(a)    a reference that a right cannot be enforced (however described) as including a reference that a self‑executing provision cannot start to apply; and

(b)    the words “if the right arises for that reason by express provision (however described) of a contract, agreement or arrangement” as being omitted from subsection 434J(1); and

(c)    a reference that one or more rights are enforceable as including a reference that one or more self‑executing provisions can start to apply; and

(d)    paragraph 434L(2)(b) as alternatively providing that the Court is satisfied that one or more reasons referred to in paragraphs 434J(1)(a) to (d) can cause the self‑executing provisions to start to apply.

             (3)  In this section:

self‑executing provision means a provision of a contract, agreement or arrangement that can start to apply automatically:

                     (a)  for one or more reasons; and

                     (b)  without any party to the contract, agreement or arrangement making a decision that the provision should start to apply.

[anti‑avoidance measure]

(11)   Schedule 1, item 8, page 20(line 5), omit “434L”, substitute “434LA”.

[anti‑avoidance measure]

(12)   Schedule 1, item 14, page 21 (lines 3 to 19), omit subsection 451E(1), substitute:

Stay on enforcing rights

             (1)  A right cannot be enforced against a company for:

                     (a)  the reason that the company has come or is under administration; or

                     (b)  the company’s financial position, if the company is under administration; or

                     (c)  a reason, prescribed by the regulations for the purposes of this paragraph, that relates to:

                              (i)  the company coming, or possibly coming, under administration; or

                             (ii)  the company’s financial position;

                            if the company later comes under administration; or

                     (d)  a reason that, in substance, is contrary to this subsection;

if the right arises for that reason by express provision (however described) of a contract, agreement or arrangement.

Note:          This result is subject to subsections (5) and (7), and to any order under section 451F.

Example:    A right to terminate a contract will not be enforceable to the extent that those rights are triggered by the company coming under administration.

[anti‑avoidance measure]

(13)   Schedule 1, item 14, page 22 (line 18), at the end of subsection 451E(4), add:

               ; or (d)  is a reason referred to in paragraph (1)(c) or (d).

[anti‑avoidance measure]

(14)   Schedule 1, item 14, page 23 (lines 7 to 9), omit subsection 451E(7), substitute:

             (7)  Subsection (1) does not apply to the right to the extent that:

                     (a)  the administrator of the company; or

                     (b)  if a liquidator of the company is appointed after the administration ends—the liquidator;

has consented in writing to the enforcement of the right.

[waiving the stay]

(15)   Schedule 1, item 14, page 24 (lines 7 and 8), omit “a reason referred to in paragraph 451E(1)(a) or (b)”, substitute “one or more reasons referred to in paragraphs 451E(1)(a) to (d)”.

[anti‑avoidance measure]

(16)   Schedule 1, item 14, page 24 (after line 26), after section 451G, insert:

451GA  Self‑executing provisions

             (1)  The object of subsection (2) is to ensure that a self‑executing provision:

                     (a)  cannot start to apply against a company for certain reasons; and

                     (b)  can be the subject of a Court order providing that the provision can only start to apply against a company with the leave of the Court, and in accordance with such terms (if any) as the Court imposes.

             (2)  Sections 451E to 451G also apply in relation to a self‑executing provision in a corresponding way to the way they apply in relation to a right. For this purpose, assume those sections apply with such modifications as are necessary, including any prescribed by the regulations for the purposes of this subsection.

Note 1:       This subsection achieves the object in subsection (1) by extending the application of all of the outcomes, exceptions and powers in sections 451E to 451G.

Note 2:       These modifications include, for example, treating:

(a)    a reference that a right cannot be enforced (however described) as including a reference that a self‑executing provision cannot start to apply; and

(b)    the words “if the right arises for that reason by express provision (however described) of a contract, agreement or arrangement” as being omitted from subsection 451E(1); and

(c)    a reference that one or more rights are enforceable as including a reference that one or more self‑executing provisions can start to apply; and

(d)    paragraph 451G(2)(b) as alternatively providing that the Court is satisfied that one or more reasons referred to in paragraphs 451E(1)(a) to (d) can cause the self‑executing provisions to start to apply.

             (3)  In this section:

self‑executing provision means a provision of a contract, agreement or arrangement that can start to apply automatically:

                     (a)  for one or more reasons; and

                     (b)  without any party to the contract, agreement or arrangement making a decision that the provision should start to apply.

[anti‑avoidance measure]

(17)   Schedule 1, item 14, page 24(line 28), omit “451G”, substitute “451GA”.

[anti‑avoidance measure]

(18)   Schedule 1, item 15, page 25 (line 4), omit “415D to 415F, 434J to 434L,”, substitute “415D to 415FA, 434J to 434LA,”.

[anti‑avoidance measure]

(19)   Schedule 1, item 16, page 25 (line 7), omit “451E to 451G,”, substitute “451E to 451GA,”.

[anti‑avoidance measure]

(20)   Schedule 1, item 17, page 25 (line 10), after “under”, insert “, or self‑executing provisions of,”.

[anti‑avoidance measure]