Corporations Act 2001

This Part sets out the main interpretative provisions for this Act. Particular provisions of this Act may have different or additional interpretative provisions. Terms may be defined only for a particular purpose or have a different definition for different purposes.

The Dictionary in section 9 includes a definition for each term that is defined in this Act, except:

terms that are defined for the purposes of a single section or part of a single section; and

terms that are defined for the purposes of Chapter 10 (transitional provisions), Schedule 2 (the Insolvency Practice Schedule) or Schedule 4 (transfer of financial institutions and friendly societies).

To the extent that a term used in a provision is not defined in this Act, it has its ordinary meaning.

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

This Part applies for the purposes of:

Part 5.7; and

Chapter 5 as applying by virtue of Part 5.7; and

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.

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

in relation to someone or something; or

for particular purposes;

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

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

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

The Dictionary in section 9 includes a definition for each term that is defined in this Act, except: a term that is defined for the purposes of a single section or part of a single section; and a term that is defined for the purposes of Chapter 10 (transitional provisions) or Schedule 4 (transfer of financial institutions and friendly societies); and a term that is defined for the purposes of Schedule 2 (the Insolvency Practice Schedule). In some cases, the definition is a signpost to another provision or Act which defines the term.

a term that is defined for the purposes of a single section or part of a single section; and

a term that is defined for the purposes of Chapter 10 (transitional provisions) or Schedule 4 (transfer of financial institutions and friendly societies); and

a term that is defined for the purposes of Schedule 2 (the Insolvency Practice Schedule).

In some cases, the definition is a signpost to another provision or Act which defines the term.

Note 1: An example for paragraph (a) is a definition that is expressed as being for the purposes of a section or subsection.

Note 2: Schedule 2 also has its own Dictionary: see section 5-5 of Schedule 2. Subject to Schedule 2, the Dictionary in section 9 also has effect for the purposes of Schedule 2.

Note 3: This Part, including the Dictionary in section 9, also has effect for the purposes of the ASIC Act: see subsection 5(2) of that Act.

(2) Within a definition, the defined term is identified by bold italics.

Note: This Act also uses bold italics to “tag” a concept with a label for use as a narrative device.

To the extent that a term used in a provision is not defined in this Act, it has its ordinary meaning.

Example 1: The definition of complaint in section 9 defines the term only in Part 7.8A. The term has it its ordinary meaning in all other Parts of this Act.

Example 2: The definition of participant in section 9 defines the term only in relation to a clearing and settlement facility and in relation to a financial market. The term has it its ordinary meaning when used in relation to all other persons and things.

In this Act:

2-part simple corporate bonds prospectus has the meaning given by section 713B.

AASB means the Australian Accounting Standards Board.

able to be traded on a market:

includes (but is not limited to) admitted to quotation on the market; and

for the purposes of Division 3 (insider trading prohibitions) of Part 7.10—has a meaning affected by section 1042E.

ABN (short for “Australian Business Number”) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

Aboriginal and Torres Strait Islander corporation means a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

ACCC means the Australian Competition and Consumer Commission.

accounting standard means:

an instrument in force under section 334; or

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

accumulation recovery day means 8 September 2022.

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

ACNC means the Australian Charities and Not-for-profits Commission.

acquire, in relation to a financial product, has the meaning given by section 761E.

act includes thing.

add-on insurance product has the same meaning as in section 12DO of the Australian Securities and Investments Commission Act 2001.

adequate, in relation to compensation arrangements or proposed compensation arrangements, has the meaning given by section 885B.

administration, in relation to a company, has the meaning given by section 435C.

administrator:

Note: See also doing an act or thing.

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

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

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

in relation to a deed of company arrangement:

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

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: financial products are admitted to quotation on a market if the market operator has given unconditional permission for quotation of the financial products on the market.

AFCA (short for the Australian Financial Complaints Authority) has the meaning given by section 761A.

AFCA regulated superannuation scheme has the meaning given by section 761A.

AFCA’s accumulated unpaid fees has the meaning given by subsection 1058B(4).

AFCA scheme has the meaning given by section 761A.

AFCA staff member has the meaning given by section 761A.

AFCA’s unpaid fees, for a month, has the meaning given by subsection 1058B(2).

affairs:

in relation to a body corporate (other than a CCIV)—has, in the provisions referred to in section 53, a meaning affected by that section; and

in relation to a body corporate that is a CCIV—has, in the provisions referred to in section 53AAA, a meaning affected by that section.

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, in Chapter 6 or 7, means a relevant agreement.

amount includes a nil amount and zero.

annual transparency report means a report required by section 332A.

annual turnover, of a body corporate during a 12-month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12-month period, other than:

supplies made from any of those bodies corporate to any other of those bodies corporate; or

supplies that are input taxed; or

(c) supplies that are not for consideration (and are not taxable supplies under A New Tax System (Goods and Services Tax) Act 1999); orsection 72-5 of the

supplies that are not made in connection with an enterprise that the body corporate carries on; or

supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

annuity policy has the meaning given by section 761A.

APFRN: see Australian Passport Fund Registration Number.

application facility, in relation to a CSF offer, has the meaning given by subsection 738ZA(3).

apportionable claim, in Division 2A (proportionate liability for misleading and deceptive conduct) of Part 7.10, has the meaning given by subsection 1041L(1).

appropriate, in relation to a target market determination, has the meaning given by subsection 994B(8A).

appropriate officer, in Part 5.8 (offences), has the meaning given by subsection 589(5).

approved code of conduct means a code of conduct approved by ASIC by legislative instrument under section 1101A, and includes a replacement code of conduct approved under that section.

approved deposit fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

approved stock exchange has the same meaning as in the Income Tax Assessment Act 1997.

APRA means the Australian Prudential Regulation Authority.

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

ARFN (short for Australian Registered Fund Number) is the number given by ASIC to a sub-fund of a CCIV on registration of the sub-fund (see subsection 1222S(3)).

arrangement:

(a) in arrangement 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; andPart 5.1 (arrangements and reconstructions)—

(b) for the purposes of Chapter 7 (financial services and markets)—arrangement has the meaning given by subsection 761B(1).

Note: In Part 7.1, see also subsection 761B(2).

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: some or all of a register kept by ASIC under this Act; or information set out in a document lodged under this Act; but does not include ASIC’s document imaging system.

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

information set out in a document lodged under this Act;

but does not include ASIC’s document imaging system.

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

asset has the meaning given by section 9AB.

asset-based fee has the meaning given by section 964F.

associate has the meaning given by sections 10 to 17.

associated entity has the meaning given by section 50AAA.

AUASB means the Auditing and Assurance Standards Board.

audit means an audit conducted for the purposes of this Act and includes a review of a financial report for a financial year or a half-year conducted for the purposes of this Act.

audit activity: see the definition of engage in audit activity.

audit company means a company that consents to be appointed, or is appointed, as auditor of a company, registered scheme or registrable superannuation entity.

audit-critical employee, in relation to a company, or the responsible entity for a registered scheme, or a registrable superannuation entity, that is the audited body for an audit, means a person who:

is an employee of the company, of the responsible entity for the registered scheme or of the RSE licensee for the registrable superannuation entity; and

is able, because of the position in which the person is employed, to exercise significant influence over:

a material aspect of the contents of the financial report being audited; or

the conduct or efficacy of the audit.

audited body, in relation to an audit of a company, registered scheme or registrable superannuation entity, means the company, registered scheme or registrable superannuation entity in relation to which the audit is, or is to be, conducted.

audit firm means a firm that consents to be appointed, or is appointed, as auditor of a company, registered scheme or registrable superannuation entity.

auditing standard means:

a standard in force under section 336; or

a provision of such a standard as it so has effect.

auditor for the purposes of the RSE licensee law means an auditor appointed in fulfilment of a requirement imposed by a provision of the RSE licensee law.

auditor independence requirements of this Act means the requirements of Divisions 3, 4 and 5 of Part 2M.4.

auditor’s report means:

an auditor’s report on an annual financial report required by section 308; or

an auditor’s report on a half-year financial report required by section 309; or

an auditor’s report on an annual sustainability report required by section 301A.

Australia means the Commonwealth of Australia and, when used in a geographical sense, includes each Territory.

Australian ADI means:

Note: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this section.

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

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

Australian business law means a law of the Commonwealth, or of a State or Territory, that is a law that regulates, or relates to the regulation of, business or persons engaged in business.

Australian carbon credit unit has the same meaning as in the Carbon Credits (Carbon Farming Initiative) Act 2011.

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

Australian CS facility licence means a licence under section 824B that authorises a person to operate a clearing and settlement facility.

Australian derivative trade repository licence means a licence under section 905C that authorises a body corporate to operate a derivative trade repository.

Australian financial services licence means a licence under section 913B that authorises a person who carries on a financial services business to provide financial services.

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

Australian market licence means a licence under section 795B that authorises a person to operate a financial market.

Australian member: a person is an Australian member of a notified foreign passport fund if:

the person holds an interest in the fund that was acquired in this jurisdiction; or

the person is ordinarily resident in this jurisdiction and holds an interest in the fund.

Australian passport fund means:

a registered scheme that is registered as a passport fund under Part 8A.3; or

a sub-fund of a retail CCIV that is registered as a passport fund under Part 8A.3.

Australian Passport Fund Registration Number means the number assigned to an Australian passport fund under paragraph 1212A(2)(a).

authorised audit company means a company registered under Part 9.2A.

authorised clearing and settlement facility has the meaning given by section 761A.

authorised representative of a financial services licensee means a person authorised in accordance with section 916A or 916B to provide a financial service or financial services on behalf of the licensee.

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.

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 an order made under subsection 920A(1).

base prospectus has the meaning given by subsection 713C(1).

base salary has the meaning specified in regulations made for the purposes of this definition.

basic banking product has the meaning given by section 961F.

basic deposit product means a deposit product that is a facility in relation to which the following conditions are satisfied: (a) the terms applicable to the facility (the governing terms) do not permit the amount from time to time standing to the credit of the facility to be reduced otherwise than in consequence of one or more of the following: a withdrawal, transfer or debit on the instruction of, or by authority of, the depositor, not being on account of entry fees, exit fees or charges for the management of the funds (but this does not exclude charges for the maintenance of the facility itself); a payment of charges or duties on deposits into, or withdrawals from, the facility that are payable under a law of the Commonwealth or of a State or Territory; a payment that a law of the Commonwealth, or of a State or Territory, requires to be made out of the facility; a payment that an order of a court requires to be made out of the facility; the exercise of a right to combine accounts; the correction of an error; any other circumstances specified in regulations made for the purposes of this subparagraph; and any return to be generated for the depositor on the amount from time to time standing to the credit of the facility is an amount that is set out in, or that is calculated by reference to a rate or rates that are set out in, the governing terms; and either: (i) there is no minimum period before which funds cannot be withdrawn or transferred from the facility without a reduction in the return generated for the depositor; or if there is such a period, it expires on or before the end of the period of 5 years starting on the day on which funds were first deposited in the facility; and unless subparagraph (c)(ii) applies and the period referred to in that subparagraph expires on or before the end of the period of 2 years starting on the day on which funds were first deposited in the facility—funds are able to be withdrawn or transferred from the facility on the instruction of, or by authority of, the depositor: without any prior notice to the ADI that makes the facility available; or if the ADI that makes the facility available is included in a class of ADIs specified in regulations made for the purposes of this subparagraph—subject to a prior notice requirement that does not exceed the period specified in those regulations in relation to that class of ADIs; whether or not the withdrawal or transfer will attract a reduction in the return generated for the depositor as mentioned in subparagraph (c)(i); and any other conditions specified in regulations made for the purposes of this paragraph. begin, in relation to a winding up, has the meaning given by Division 1A of Part 5.6.

(a) the terms applicable to the facility (the governing terms) do not permit the amount from time to time standing to the credit of the facility to be reduced otherwise than in consequence of one or more of the following:

a withdrawal, transfer or debit on the instruction of, or by authority of, the depositor, not being on account of entry fees, exit fees or charges for the management of the funds (but this does not exclude charges for the maintenance of the facility itself);

a payment of charges or duties on deposits into, or withdrawals from, the facility that are payable under a law of the Commonwealth or of a State or Territory;

a payment that a law of the Commonwealth, or of a State or Territory, requires to be made out of the facility;

a payment that an order of a court requires to be made out of the facility;

the exercise of a right to combine accounts;

the correction of an error;

any other circumstances specified in regulations made for the purposes of this subparagraph; and

any return to be generated for the depositor on the amount from time to time standing to the credit of the facility is an amount that is set out in, or that is calculated by reference to a rate or rates that are set out in, the governing terms; and

either:

(i) there is no minimum period before which funds cannot be withdrawn or transferred from the facility without a reduction in the return generated for the depositor; or

if there is such a period, it expires on or before the end of the period of 5 years starting on the day on which funds were first deposited in the facility; and

unless subparagraph (c)(ii) applies and the period referred to in that subparagraph expires on or before the end of the period of 2 years starting on the day on which funds were first deposited in the facility—funds are able to be withdrawn or transferred from the facility on the instruction of, or by authority of, the depositor:

without any prior notice to the ADI that makes the facility available; or

if the ADI that makes the facility available is included in a class of ADIs specified in regulations made for the purposes of this subparagraph—subject to a prior notice requirement that does not exceed the period specified in those regulations in relation to that class of ADIs;

whether or not the withdrawal or transfer will attract a reduction in the return generated for the depositor as mentioned in subparagraph (c)(i); and

any other conditions specified in regulations made for the purposes of this paragraph.

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

benchmark administrator licence means a licence granted under section 908BC.

benchmark administrator licensee means a person who holds a benchmark administrator licence.

benefit:

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

when used in Division 2 of Part 2D.2 (sections 200 to 200J)—has the meaning given by section 200AB.

benefit derived and detriment avoided:

because of an offence—has the meaning given by section 1311D; and

because of a contravention of a civil penalty provision—has the meaning given by section 1317GAD.

benefit ratio has the meaning given by subsection 963B(3A).

benefit ratio requirements has the meaning given by subsection 963BA(1).

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).

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

bid period:

Note: A person who announces a bid on behalf of another person is not making the bid, the other person is making the bid.

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

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

at the end of the offer period; and

for a market bid—starts when the bid is announced to the relevant financial market and ends at the end of the offer period.

binder has the meaning given by section 761A.

Board, when used in Part 9.2, means the Companies Auditors Disciplinary Board.

board limit means a limit described in section 201N.

board limit resolution means a resolution described in paragraph 201P(1)(a).

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

body corporate:

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

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

for the purposes of Chapter 5 and Part 9.2—has a meaning affected by subsection 6(2) (about Part 5.7 bodies).

body corporate licensee has the meaning given by section 910A.

body regulated by APRA has the meaning given by subsection 3(2) of the Australian Prudential Regulation Authority Act 1998.

books includes:

a register; and

any other record of information; and

financial reports or financial records, however compiled, recorded or stored; and

sustainability reports or sustainability records, however compiled, recorded or stored; and

a document;

but does not include an index or recording made under Subdivision D of Division 5 of Part 6.5.

borrow includes obtain credit and: (a) in relation to a debenture—borrower means the body that is or will be liable to repay money under the debenture; and (b) in borrowed has the meaning given by section 964G.Part 7.7A (best interests obligations and remuneration)— business affairs, in relation to an entity, has a meaning affected by sections 53AA, 53AB, 53AC and 53AD.

(a) in relation to a debenture—borrower means the body that is or will be liable to repay money under the debenture; and

(b) in borrowed has the meaning given by section 964G.Part 7.7A (best interests obligations and remuneration)—

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.

Business Names Register means the Register established and maintained under section 22 of the Business Names Registration Act 2011.

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).

cancellation time, in relation to a registration prohibition order, has the meaning given by subparagraph 921L(1)(c)(i).

capital reserve establishment contribution has the same meaning as in the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023.

carry on, in relation to a business, has a meaning affected by Division 3.

Cash Settlement Fact Sheet means a Cash Settlement Fact Sheet required by section 948C to be given in accordance with Division 3A of Part 7.7.

CCIV: see corporate collective investment vehicle.

certificate of transfer has the meaning given by subsection 601WBG(1).

certified means:

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

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

CGS depository interest has the meaning given by section 761A.

CGS depository interest information website has the meaning given by subsection 1020AH(1).

Chapter 5 body corporate means a body corporate: that is being wound up; or that is a CCIV of which one or more sub-funds is being wound up; or 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 that is under administration; or that has executed a deed of company arrangement that has not yet terminated; or that is under restructuring; or that has made a restructuring plan that has not yet terminated; or that has entered into a compromise or arrangement with another person the administration of which has not been concluded.

that is being wound up; or

that is a CCIV of which one or more sub-funds is being wound up; or

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

that is under administration; or

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

that is under restructuring; or

that has made a restructuring plan that has not yet terminated; or

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

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.

chief executive function has the meaning given by section 295A.

chief financial officer function has the meaning given by section 295A.

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

choice product has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

circulating security interest means a security interest that is: a PPSA security interest, if: (i) the security interest has attached to a circulating asset within the meaning of the Personal Property Securities Act 2009; and the grantor (within the meaning of that Act) has title to the asset; or a floating charge.

a PPSA security interest, if:

(i) the security interest has attached to a circulating asset within the meaning of the Personal Property Securities Act 2009; and

the grantor (within the meaning of that Act) has title to the asset; or

a floating charge.

Note: Security interests are either PPSA security interests, or charges, liens or pledges: see security interest.

civil matter means a matter other than a criminal matter.

civil penalty order means any of the following: a declaration of contravention under section 1317E; a pecuniary penalty order under section 1317G; a relinquishment order under section 1317GAB; a refund order under section 1317GA or 1317GB; a compensation order under section 961M, 1317H, 1317HA, 1317HB, 1317HC or 1317HE; an order under section 206C disqualifying a person from managing corporations. civil penalty provision has the meaning given in subsection 1317E(3).

a declaration of contravention under section 1317E;

a pecuniary penalty order under section 1317G;

a relinquishment order under section 1317GAB;

a refund order under section 1317GA or 1317GB;

a compensation order under section 961M, 1317H, 1317HA, 1317HB, 1317HC or 1317HE;

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

civil penalty provision has the meaning given in subsection 1317E(3).

claimant intermediary has the meaning given by section 761CAA.

claims handling and settling service has the meaning given by section 766G.

class has:

in relation to shares in a CCIV—a meaning affected by sections 57 and 1230A; and

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

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

(d) in relation to financial products or financial services—has a meaning affected by regulations made for the purposes of section 761CA.

class of product advice has the meaning given by section 910A.

clawback requirements has the meaning given by subsection 963BA(3).

clearing and settlement arrangements for transactions effected through a financial market has the meaning given by section 790A.

clearing and settlement facility:

has the meaning given by section 768A; and

(b) in relation to an Australian CS facility licence—has a meaning affected by section 824E.

clearing requirements, in relation to derivative transactions, has the meaning given by subsection 901A(7).

client:

for an issue situation—has the meaning given by paragraph 1012B(2)(c); and

for a recommendation situation—has the meaning given by paragraph 1012A(2)(c); and

for a sale situation—has the meaning given by paragraph 1012C(2)(c); and

of a trustee company—has the meaning given by subsection 601RAB(3); and

Note: See also retail client and wholesale client.

client money reporting rules has the meaning given by section 981J.

climate statements means annual climate statements under sections 296A and 296B.

closed, in relation to a CSF offer, has the meaning given by subsection 738N(3).

closely related party of a member of the key management personnel for an entity means:

a spouse or child of the member; or

a child of the member’s spouse; or

a dependant of the member or of the member’s spouse; or

anyone else who is one of the member’s family and may be expected to influence the member, or be influenced by the member, in the member’s dealings with the entity; or

a company the member controls; or

a person prescribed by the regulations for the purposes of this paragraph.

coastal sea:

in relation to Australia—means:

the territorial sea of Australia; and

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 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 under the heading that refers to that State or Territory.

code of conduct means a code of conduct that relates to any aspect of the activities of: financial services licensees; or authorised representatives of financial services licensees; or issuers of financial products; being activities in relation to which ASIC has a regulatory responsibility.

financial services licensees; or

authorised representatives of financial services licensees; or

issuers of financial products;

being activities in relation to which ASIC has a regulatory responsibility.

Code of Ethics means the Code of Ethics in force under section 921E.

collective investment fund has the meaning given by subsection 1212(1).

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 or a sustainability standard, means:

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

in the case of an accounting standard or a sustainability standard as varied by a particular provision of an instrument made under section 334 or 336A—the time when that provision took effect.

common fund, in Chapter 5D (licensed trustee companies), has the meaning given by subsection 601SCA(2).

Commonwealth means the Commonwealth of Australia and, when used in a geographical sense, includes each Territory.

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

Commonwealth body means:

Note: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this section.

(a) an Agency (within the meaning of the Public Service Act 1999); or

a body, whether incorporated or not, established for a public purpose by or under a law of the Commonwealth; or

a person:

holding or performing the duties of an office established by or under a law of the Commonwealth; or

holding an appointment made under a law of the Commonwealth.

communication facility, in relation to a CSF offer, has the meaning given by subsection 738ZA(5).

company means a company registered under this Act and: in Parts 5.7B and 5.8 (except sections 595 and 596), includes a Part 5.7 body; and in Part 5B.1, includes an unincorporated registrable body.

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

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.

compelled financial benchmark rules means rules made under section 908CD.

compensation arrangements has the meaning given by section 880B.

compensation proceedings has the meaning given by section 1317DAAA.

compensation rules has the meaning given by section 880B.

complaint, in Part 7.8A (design and distribution requirements), has the meaning given by subsection 994A(2).

complete, in relation to a CSF offer, has the meaning given by subsection 738N(7).

compliance committee means a compliance committee established under section 601JA.

compliance period for an infringement notice issued under section 1317DAC has the meaning given by section 1317DAH.

compulsory transfer determination has the meaning given by subsection 601WBA(1).

concurrent wrongdoer, in Division 2A (proportionate liability for misleading and deceptive conduct) of Part 7.10, has the meaning given by subsection 1041L(3).

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

conflicted remuneration has the meaning given by section 963A, as affected by sections 963AA, 963B and 963C.

conflict of interest situation, in Chapter 2M (financial reports and audit), has the meaning given by section 324CD.

connected with a corporation: see section 64B.

consideration period for a notice of intention to offer interests in a foreign passport fund in this jurisdiction has the meaning given by section 1213D.

consolidated entity means a company, registered scheme, registrable superannuation entity 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 a managed investment scheme’s constitution; or in relation to any other kind of body: the body’s charter or memorandum; or 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.

(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

a managed investment scheme’s constitution; or

in relation to any other kind of body:

the body’s charter or memorandum; or

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 1: 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.

Note 2: The constituent document (as defined in the Passport Rules for this jurisdiction) for a notified foreign passport fund is taken under section 1213E to be the constitution of the fund as a managed investment scheme.

consumer credit insurance has the same meaning as in the Insurance Contracts Act 1984.

continuous disclosure notice means:

(a) a document used to notify a market operator of information relating to a body under provisions of the market’s listing rules referred to in subsections 674(1) and 674A(1); or

a document under section 675 or 675A lodged in relation to the body.

continuously quoted securities are securities that:

are in a class of securities that were quoted ED securities at all times in the 3 months before the date of the prospectus or Product Disclosure Statement; and

are securities of an entity in relation to which the following subparagraphs are satisfied during the shorter of the period during which the class of securities were quoted, and the period of 12 months before the date of the prospectus or Product Disclosure Statement:

no exemption under section 111AS or 111AT, or modification under section 111AV, covered the entity, or any person as director or auditor of the entity;

no exemption under paragraph 741(1)(a), or 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 covered the entity, or any person as director or auditor of the entity;

no order under section 340, 340A, 341 or 341A covered the entity, or any person as director or auditor of the entity;

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.

contract of insurance, in Division 4 (special provisions relating to insurance) of Part 7.8, has a meaning affected by subsection 985A(1).

contravene, in relation to a civil penalty provision, has a meaning affected by subsection 1317E(4).

contravention proceedings means proceedings under section 1101B by a person referred to in paragraph 1101B(1)(b) or (d).

contribution plan means a plan in respect of which the following conditions are met: (a) regular deductions are made from the wages or salary of an employee or director (the contributor) to acquire financial products that are offered for issue or sale to the contributor under a scheme for employees or directors of a company to acquire any of the following financial products of the company: fully paid ordinary shares; options, offered for no more than nominal consideration, for the issue or transfer of fully paid ordinary shares; units in fully paid ordinary shares; the deductions are authorised by the contributor in a form which is included in, or accompanies, the disclosure document or the Product Disclosure Statement for the scheme; before acquiring the financial products under the scheme, the deductions are held on trust in an account with an Australian ADI that is kept solely for that purpose; the contributor may elect to discontinue the deductions at any time; if the contributor so elects, the amount of the deductions standing, at that time, to the credit of the account for the contributor, and any interest on that amount, is repaid to the contributor; the scheme does not involve the offer to the contributor of a loan or similar financial assistance for the purpose of, or in connection with, the acquisition of the financial products that are offered under the scheme.

(a) regular deductions are made from the wages or salary of an employee or director (the contributor) to acquire financial products that are offered for issue or sale to the contributor under a scheme for employees or directors of a company to acquire any of the following financial products of the company:

fully paid ordinary shares;

options, offered for no more than nominal consideration, for the issue or transfer of fully paid ordinary shares;

units in fully paid ordinary shares;

the deductions are authorised by the contributor in a form which is included in, or accompanies, the disclosure document or the Product Disclosure Statement for the scheme;

before acquiring the financial products under the scheme, the deductions are held on trust in an account with an Australian ADI that is kept solely for that purpose;

the contributor may elect to discontinue the deductions at any time;

if the contributor so elects, the amount of the deductions standing, at that time, to the credit of the account for the contributor, and any interest on that amount, is repaid to the contributor;

the scheme does not involve the offer to the contributor of a loan or similar financial assistance for the purpose of, or in connection with, the acquisition of the financial products that are offered under the scheme.

contributory means:

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

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

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

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

in relation to a Part 5.7 body:

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

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

in relation to a no liability company—subject to subsection 254M(2), a member of the company; and

in relation to a sub-fund of a CCIV—a person who is a contributory of the CCIV under paragraph (a), if the person is liable as mentioned in subparagraph (a)(i) as a member or past member of the sub-fund, or is a holder of shares referable to the sub-fund.

control:

unless paragraph (b) applies—has the meaning given by section 50AA; and

when used in Part 7.6—has the meaning given by section 910B.

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

unless paragraph (b) applies:

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

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

if the controller became a controller of property of the corporation:

to act with an existing controller of such property; or

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).

controlled Australian financial body has the meaning given by subsection 852DA(2).

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

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

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 security interest;

and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers).

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, by the exercise of rights attached to those securities:

have the other class of securities issued to them; or

have the securities transform into securities of that other class.

An option may be a convertible security even if it is non-renounceable.

core obligation has the meaning given by subsection 912D(3).

core officer, of a corporation (other than a CCIV), means a person covered by paragraph 9AD(1)(a) or (b).

corporate collective investment vehicle or CCIV means a company that is registered as a corporate collective investment vehicle under this Act.

corporate director of a CCIV has the meaning given by subsection 1224(3).

corporate responsibility provision has the meaning given by section 188.

corporation has the meaning given by section 57A.

corporation/scheme civil penalty provision has the meaning given by subsection 1317E(3).

Corporations legislation means:

this Act; and

the ASIC Act; and

rules of court made by the Federal Court, the Supreme Court of the Australian Capital Territory, or Judges of the Federal Circuit and Family Court of Australia (Division 1), because of a provision of this Act; and

rules of court applied by the Supreme Court, or a State Family Court, of a State, or by the Supreme Court of the Northern Territory or of Norfolk Island, 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.

CPD provision (short for continuing professional development provision) means:

subsection 921BA(4); or

subsection 921BB(3).

CPD year (short for continuing professional development year) has the meaning given by section 910A.

credit licensee means a licensee within the meaning of the National Consumer Credit Protection Act 2009.

creditor of a sub-fund of a CCIV means a creditor of the CCIV, if the debt or claim is, to any extent, a liability of the sub-fund.

creditor-defeating disposition has the meaning given by section 588FDB.

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

crowd-funding service that a person provides has the meaning given by section 766F.

CSF is short for crowd-sourced funding.

CS facility licensee means a person who holds an Australian CS facility licence.

CS facility rules means rules made under section 826H.

CSF audit threshold means:

Note: Crowd-sourced funding is dealt with in Part 6D.3A.

unless paragraph (b) applies—$3 million; or

any amount prescribed by the regulations for the purposes of this paragraph.

CSF intermediary has the meaning given by section 738C.

CSF offer has the meaning given by section 738B.

CSF offer document, in relation to a CSF offer, has the meaning given by subsection 738J(1).

CSF shareholder, of a proprietary company, means an entity that holds one or more securities of the company due to being issued with the securities pursuant to a CSF offer by the company.

CSLR operator (short for financial services compensation scheme of last resort operator) means the person for whom an authorisation under section 1060 is in force.

CSLR staff member means:

a director, officer or employee of the CSLR operator; or

a person engaged as a consultant to, or to perform services for, the CSLR operator for the purposes of the financial services compensation scheme of last resort.

CS service has the meaning given by section 828.

CS services rules: see subsection 828A(1).

current LVR:

of a standard margin lending facility—has the meaning given by subsection 761EA(3); and

of a non-standard margin lending facility—has the meaning given by subsection 761EA(6).

custodial arrangement, in Subdivision A (volume-based shelf-space fees) of Division 5 of Part 7.7A, has the meaning given by subsection 964(2).

custodial or depository service that a person provides has the meaning given by section 766E.

custodian, in relation to a registrable superannuation entity, has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

data standards means standards made by the Registrar under section 1270G.

date of a takeover bid is:

Note: Subsection 964(2) incorporates a modified version of the definition of custodial arrangement in section 1012IA.

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

for a market bid—the date on which the bid is announced to the relevant financial market.

dealing in a financial product:

except in Part 7.8A—has the meaning given by section 766C; and

in Part 7.8A (design and distribution requirements)—has the meaning given by subsection 994A(2);

and deal in a financial product has corresponding meanings.

death benefit decision-maker has the meaning given by section 761A.

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 security interest over property of the body to secure repayment of the money. However, a debenture does not include: an undertaking to repay money deposited with or lent to the body by a person if: the person deposits or lends the money in the ordinary course of a business carried on by the person; and 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 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 an undertaking to pay money under: a cheque; or an order for the payment of money; or a bill of exchange; or an undertaking by a body corporate to pay money to a related body corporate; or 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, in Part 9.4A (review by Administrative Review Tribunal), has the meaning given by section 1317A.

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

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

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

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

Note: This paragraph has an extended meaning in relation to Chapter 8 (see subsection 1200A(2)).

an undertaking to pay money under:

a cheque; or

an order for the payment of money; or

a bill of exchange; or

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

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, in Part 9.4A (review by Administrative Review Tribunal), has the meaning given by section 1317A.

decision period, for a secured party in relation to a security interest in property (including PPSA retention of title property) of a company means:

in relation to a company under administration—the period beginning on the day when:

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

otherwise—the administration begins;

and ending at the end of the thirteenth business day after that day; and

in relation to a company under restructuring—the period beginning on the day when:

a notice of appointment of the restructuring practitioner must be given to the secured party under the regulations—such notice is so given; or

otherwise—the restructuring begins;

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

declaration of indemnities means a written declaration: stating whether the administrator has, to any extent, been indemnified (otherwise than under section 443D), in relation to that administration, for: any debts for which the administrator is, or may become, liable under Subdivision A of Division 9 of Part 5.3A; or any debts for which the administrator is, or may become, liable under a remittance provision as defined in section 443BA; or the remuneration to which he or she is entitled under section 60-5 of Schedule 2 (external administrator’s remuneration); and if so, stating: the identity of each indemnifier; and the extent and nature of each indemnity.

stating whether the administrator has, to any extent, been indemnified (otherwise than under section 443D), in relation to that administration, for:

any debts for which the administrator is, or may become, liable under Subdivision A of Division 9 of Part 5.3A; or

any debts for which the administrator is, or may become, liable under a remittance provision as defined in section 443BA; or

the remuneration to which he or she is entitled under section 60-5 of Schedule 2 (external administrator’s remuneration); and

if so, stating:

the identity of each indemnifier; and

the extent and nature of each indemnity.

declaration of relevant relationships has the meaning given by section 60.

declared financial market has the meaning given by subsection 9D(1).

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.

defeating condition for a takeover bid means a condition that: will, in circumstances referred to in the condition, result in the rescission of, or entitle the bidder to rescind, a takeover contract; or 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: an irregularity; and a misstatement of an amount or total; and a misdescription of a debt or other matter; and a misdescription of a person or entity. defective: in relation to a CSF offer document, has the meaning given by subsection 738U(1); and (b) in relation to a disclosure document or statement: in Subdivision A (financial services disclosure offences) of Division 7 of Part 7.7—has the meaning given by subsection 952B(1); and in Subdivision B (financial services disclosure civil lability) of Division 7 of Part 7.7—has the meaning given by subsection 953A(1); and in Subdivision A (financial product disclosure offences) of Division 7 of Part 7.9—has the meaning given by subsection 1021B(1); and in Subdivision B (financial product disclosure civil lability) of Division 7 of Part 7.9—has the meaning given by subsection 1022A(1).

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

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:

an irregularity; and

a misstatement of an amount or total; and

a misdescription of a debt or other matter; and

a misdescription of a person or entity.

defective:

in relation to a CSF offer document, has the meaning given by subsection 738U(1); and

(b) in relation to a disclosure document or statement:

in Subdivision A (financial services disclosure offences) of Division 7 of Part 7.7—has the meaning given by subsection 952B(1); and

in Subdivision B (financial services disclosure civil lability) of Division 7 of Part 7.7—has the meaning given by subsection 953A(1); and

in Subdivision A (financial product disclosure offences) of Division 7 of Part 7.9—has the meaning given by subsection 1021B(1); and

in Subdivision B (financial product disclosure civil lability) of Division 7 of Part 7.9—has the meaning given by subsection 1022A(1).

deposit product means a financial product described in paragraph 764A(1)(i).

deregistered means:

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

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

derivative (except for the purposes of Chapter 8A) has the meaning given by section 761D.

derivative retail client money has the meaning given by section 761A.

derivative trade data has the meaning given by section 761A.

derivative trade repository:

means a facility to which information about derivative transactions, or about positions relating to derivative transactions, can be reported (whether or not other information or data can also be reported to the facility); and

(b) in relation to an Australian derivative trade repository licence—has a meaning affected by subsection 905E(2).

derivative trade repository licensee means a person who holds an Australian derivative trade repository licence.

derivative trade repository rules means rules made by ASIC under subsection 903A(1).

derivative transaction means:

the entry into of an arrangement (as defined in subsection 761B(1)) that is a derivative; or

(b) the modification or termination of such an arrangement; or

the assignment, by a party to such an arrangement, of some or all of the party’s rights and obligations under the arrangement; or

any other transaction that relates to a derivative and that is in a class of transactions prescribed by the regulations for the purposes of this paragraph.

derivative transaction rules means rules made by ASIC under subsection 901A(1).

designated secrecy provision has the meaning given by subsection 1270M(3).

detriment, in sections 1317AC and 1317AD, has a meaning affected by section 1317ADA.

director has the meaning given by section 9AC.

director identification number means a director identification number given under: section 1272; or (b) Corporations (Aboriginal and Torres Strait Islander) Act 2006.section 308-5 of the directors’ report means: an annual directors’ report required by section 292; or a half-year directors’ report required by section 302.

section 1272; or

(b) Corporations (Aboriginal and Torres Strait Islander) Act 2006.section 308-5 of the

directors’ report means:

an annual directors’ report required by section 292; or

a half-year directors’ report required by section 302.

disclosing entity has the meaning given by section 111AC.

disclosing entity provisions has the meaning given by section 111AR.

disclosure document for an offer of securities means:

a prospectus for the offer; or

a profile statement for the offer; or

an offer information statement for the offer.

disclosure document or statement:

in Subdivision A (financial services disclosure offences) of Division 7 of Part 7.7—has the meaning given by subsection 952B(1); and

in Subdivision B (financial services disclosure civil lability) of Division 7 of Part 7.7—has the meaning given by subsection 953A(1); and

in Subdivision A (financial product disclosure offences) of Division 7 of Part 7.9—has the meaning given by subsection 1021B(1); and

in Subdivision B (financial product disclosure civil lability) of Division 7 of Part 7.9—has the meaning given by subsection 1022A(1).

disclosure framework means the disclosure framework made by the Registrar under section 1270K.

dishonest means dishonest according to the standards of ordinary people.

dispose has a meaning affected by the following paragraphs:

(a) when used in relation to financial products, otherwise than in a situation to which paragraph (b) applies, dispose includes terminate or close out the legal relationship that constitutes the financial product;

(b) 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.

disqualified individual has the meaning given by section 853A.

distribution condition has the meaning given by paragraph 994B(5)(c).

distribution information, in relation to a financial product, has the meaning given by subsection 994F(3).

Division 3 arrangements has the meaning given by section 880B.

Division 3 financial products has the meaning given by subsection 1042A(1).

Division 3 loss has the meaning given by section 880B.

Division 4 arrangements has the meaning given by section 880B.

doing an act or thing includes causing or authorising the act or thing to be done.

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.

education and training standards has the meaning given by section 921B.

electronic communication means:

Note: This definition refers to Division 3 (approved compensation arrangements) of Part 7.5.

Note 1: This definition refers to .Division 3 (insider trading prohibitions) of Part 7.10

Note 2: In Part 7.10 (market misconduct etc.) bank accepted bills and negotiable certificates of deposit are treated as if they were Division 3 financial products: see section 1040B.

Note: This definition refers to Division 3 (approved compensation arrangements) of Part 7.5.

Note: This definition refers to Division 4 (NGF Compensation regime) of Part 7.5.

a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

eligibility criteria:

for restructuring a company—has the meaning given by section 453C; and

for the simplified liquidation process—has the meaning given by section 500AA.

eligible applicant, in relation to a corporation, means:

ASIC; or

a liquidator or provisional liquidator of the corporation; or

an administrator of the corporation; or

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

a restructuring practitioner for the corporation; or

a restructuring practitioner for a restructuring plan made by the corporation; or

a person authorised in writing by ASIC to make:

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

such an application in relation to the corporation.

eligible CSF company has the meaning given by section 738H.

eligible employee creditor means a creditor whose debt or claim would, in a winding up of the company, be payable in priority to other unsecured debts and claims in accordance with paragraph 556(1)(e), (g) or (h) or section 560 or 561.

eligible for temporary restructuring relief has the meaning given by section 458E.

eligible international emissions unit has the same meaning as in the Australian National Registry of Emissions Units Act 2011.

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

eligible officer has the meaning given by section 1272B.

eligible recipient has the meaning given by section 1317AAC.

eligible unsecured creditor has the meaning given by section 579Q.

eligible whistleblower has the meaning given by section 1317AAA.

employee of a company, in Part 5.8A (employee entitlements), has the meaning given by subsections 596AA(4) and (5).

employee entitlements contribution order has the meaning given by subsection 588ZA(1).

employee share buy-back means a buy-back under a scheme that: has as its purpose the acquisition of shares in a company by, or on behalf of: employees of the company, or of a related body corporate; or 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 has been approved by the company in general meeting. employee share scheme: see subsection 1100L(1).

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

employees of the company, or of a related body corporate; or

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

has been approved by the company in general meeting.

employee share scheme: see subsection 1100L(1).

employer-sponsor has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

end of administration return has the same meaning as in Schedule 2.

enforce, in relation to a security interest in property of a company under administration, includes:

appoint a receiver of property of the company under a power contained in an instrument relating to the security interest; or

obtain an order for the appointment of a receiver of such property for the purpose of enforcing the security interest; or

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

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

exercise, in relation to property including PPSA retention of title property, as the secured party or as a receiver or person so appointed, a right, power or remedy existing because of the security interest, arising:

under an agreement or instrument relating to the security interest; or

in the case of a PPSA security interest—under an agreement or instrument relating to a transaction or dealing giving rise to the security interest; or

under a written or unwritten law; or

in any other way.

enforceable code provision means a provision of an approved code of conduct identified by ASIC under subsection 1101A(2).

enforcement proceedings means proceedings under section 793C by a person referred to in paragraph 793C(1)(b), (c) or (d).

enforcement process, in relation to property, means:

execution against that property; or

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

engage in audit activity: an individual auditor, audit firm or audit company engages in audit activity in relation to an audited body for an audit if the individual auditor, audit firm or audit company:

consents to be appointed as auditor of the audited body for a financial year; or

acts as the auditor of the audited body for a financial year; or

prepares a report in relation to the audited body that is required by this Act to be prepared by:

a registered company auditor; or

an auditor of the audited body in relation to a financial year or half-year.

engage in conduct means:

do an act; or

omit to perform an act.

enter into: a person who:

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

exercises an option to have shares or other securities allotted, issued or granted;

is taken to enter into a transaction in relation to the shares or securities.

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

entity: for the purposes of Chapters 2E, 8A and 8B, an entity is any of the following:

a body corporate;

a partnership;

an unincorporated body;

an individual;

for a trust that has only 1 trustee—the trustee;

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).

equal reduction has the meaning given by subsection 256B(2).

equity interest has the same meaning as in the Income Tax Assessment Act 1997.

ESS contribution plan: see section 1100T.

essential service means:

electricity; or

gas; or

water; or

(d) a carriage service (within the meaning of the Telecommunications Act 1997).

ESS interest: see section 1100M.

ESS participant: see subsection 1100L(2).

estate assets and liabilities has the meaning given by section 601WAA.

estate management functions has the meaning given by subsection 601RAC(2).

estate that is administered or managed has the meaning given by subsection 601SBB(1A).

event includes any happening, circumstance or state of affairs.

examinable affairs, in relation to a corporation means:

the promotion, formation, management, administration, restructuring or winding up of the corporation; or

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

the business affairs of any of the following, in so far as those business affairs 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):

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

an entity that is, or has been, connected with the corporation.

examinable assets and liabilities means all of the following: the entity’s property and assets: whether present or future; and whether held alone or jointly with any other person or persons; and whether or not held as agent, bailee or trustee; the entity’s liabilities: whether present or future; and whether actual or contingent; and whether owed alone or jointly with any other person or persons; and whether or not owed as trustee.

the entity’s property and assets:

whether present or future; and

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

whether or not held as agent, bailee or trustee;

the entity’s liabilities:

whether present or future; and

whether actual or contingent; and

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

whether or not owed as trustee.

examinable operations means all of the following: the entity’s business, trading, transactions and dealings: whether alone or jointly with any other entity or entities; and whether or not as agent, bailee or trustee; the entity’s profits, income and receipts; the entity’s losses, outgoings and expenditure.

the entity’s business, trading, transactions and dealings:

whether alone or jointly with any other entity or entities; and

whether or not as agent, bailee or trustee;

the entity’s profits, income and receipts;

the entity’s losses, outgoings and expenditure.

excluded conduct has the meaning given by subsection 994A(1).

excluded security means:

where:

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

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

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

execution requirements, in relation to derivative transactions, has the meaning given by subsection 901A(5).

exempt body corporate of a State or Territory has the meaning given by section 66A.

exempt public authority means a body corporate that is incorporated within Australia or an external Territory and is: a public authority; or an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.

a public authority; or

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

exempt public sector superannuation scheme has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

expectation:

(a) a person has an expectation that a managed investment scheme or a sub-fund of a CCIV will become an Australian passport fund only as set out in section 1216B; and

(b) a person has an expectation that a fund will become a notified foreign passport fund only as set out in section 1216G.

expert 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:

includes further extend; and

has a meaning affected by section 70.

external administrator:

other than in Chapter 5 and Part 7.3B—has the same meaning as in Schedule 2; and

in Part 7.3B:

subject to subparagraph (ii)—means an external administrator (within the meaning of Schedule 2 to this Act), a receiver, manager, managing controller, receiver and manager or other controller; and

(ii) does not include a statutory manager (within the meaning of this Act) or a Banking Act statutory manager (within the meaning of the Banking Act 1959).

external Territory:

means a Territory referred to in section 122 of the Constitution, where an Act makes provision for the government of the Territory as a Territory; but

(b) does not include a Territory covered by the definition of Territory in this section.

Note: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this section.

extract of particulars for a company, registered scheme or notified foreign passport fund means a statement given by ASIC that contains either or both of the following:

some or all of the particulars in relation to the company, scheme or fund that are recorded in a register that ASIC maintains, or ensures is maintained, under subsection 1214(1) or 1274(1);

a requirement to provide a particular under section 346B.

extraordinary resolution, in relation to a registered scheme, a CCIV or a sub-fund of a CCIV, means a resolution of the members of the registered scheme that complies with subsection 253LA(2).

facility has a meaning affected by section 762C.

Federal Court means the Federal Court of Australia.

fee recipient has the meaning given by section 962C.

fees, in Chapter 5D (licensed trustee companies), has the meaning given by section 601RAA.

fidelity fund has the meaning given by section 880B.

financed emissions has the meaning given by the sustainability standards.

financial benchmark:

has the meaning given by section 908AB; and

(b) in relation to a benchmark administrator licence—has a meaning affected by section 908BE.

financial benchmark data means:

information obtained to generate or administer a financial benchmark; or

information (including statistical data) that is created or derived from information referred to in paragraph (a).

financial benchmark rules means rules made under section 908CA.

financial benefit: see giving a financial benefit.

financial investment: see makes a financial investment.

financial market (except for the purposes of Chapter 8A) has the meaning given by section 767A.

financial product has the meaning given by Division 3 of Part 7.1 and: in Part 7.8A (design and distribution requirements)—has a meaning affected by subsection 994AA(1); and in Part 7.9A (product intervention orders)—has a meaning affected by section 1023B.

in Part 7.8A (design and distribution requirements)—has a meaning affected by subsection 994AA(1); and

in Part 7.9A (product intervention orders)—has a meaning affected by section 1023B.

Note: In Part 7.10 (market misconduct etc.) bank accepted bills and negotiable certificates of deposit are treated as if they were financial products: see section 1040B.

financial product advice has the meaning given by section 766B.

financial records includes:

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

documents of prime entry; and

working papers and other documents needed to explain:

the methods by which financial statements are made up; and

adjustments to be made in preparing financial statements.

financial report means:

an annual financial report required by or under section 292, 293, 294, 294A or 294B; or

a half-year financial report required by section 302.

financial reporting requirements for a financial report means the requirements imposed under: section 296 or 297 if the financial report is an annual financial report; or section 304 or 305 if the financial report is a half-year financial report. financial risk: see manages financial risk.

section 296 or 297 if the financial report is an annual financial report; or

section 304 or 305 if the financial report is a half-year financial report.

financial risk: see manages financial risk.

financial service has the meaning given by Division 4 of Part 7.1.

Financial Services and Credit Panel means a panel convened under subsection 139(1) of the ASIC Act.

financial services civil penalty provision has the meaning given by subsection 1317E(3).

financial services compensation scheme of last resort means the financial services compensation scheme of last resort established under Part 7.10B.

financial services compensation scheme of last resort operator: see CSLR operator.

Financial Services Guide means a Financial Services Guide required by section 941A or 941B to be given in accordance with Division 2 of Part 7.7.

financial services law has the meaning given by section 761A.

financial services licensee means a person who holds an Australian financial services licence.

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

financial year:

of a company, registered scheme or disclosing entity (other than a notified foreign passport fund)—has the meaning given by section 323D; and

of a notified foreign passport fund—has the meaning given by section 323DAA; and

of a financial services licensee that is a body corporate and is not covered by paragraph (a)—means a financial year of the body corporate; and

for a financial services licensee that is not covered by paragraph (a) or (c)—means a year ending on 30 June.

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

firm, in relation to an administrator, restructuring practitioner or liquidator, means:

(a) if the administrator, restructuring practitioner or liquidator is a partner or employee of a partnership (the partnership firm) that provides advice or other services in relation to Chapter 5 bodies corporate—the partnership firm; or

(b) if the administrator, restructuring practitioner or liquidator is an officer or employee of a body corporate (the body corporate firm) that provides advice or other services in relation to Chapter 5 bodies corporate—the body corporate firm.

first levy period has the same meaning as in the Financial Services Compensation Scheme of Last Resort Levy Act 2023.

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.

FMI banning order (short for financial market infrastructure banning order) means an order made under subsection 853H(1).

FMI licensee means:

a market licensee; or

a CS facility licensee; or

a derivative trade repository licensee; or

a benchmark administrator licensee.

for includes in respect of.

foreign company means:

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

a corporation sole; or

an exempt public authority; or

an unincorporated body that:

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

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

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

foreign exchange contract has the meaning given by section 761A.

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.

foreign law has the same meaning as in the Income Tax Assessment Act 1997.

foreign passport fund means a passport fund the home economy for which is not Australia.

foreign passport fund product means a financial product described in paragraph 764A(1)(bb).

foreign qualification has the meaning given by section 910A.

foreign recognition scheme has the meaning given by subsection 1200A(1).

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.

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

function includes a duty.

fund property of a notified foreign passport fund means:

contributions of money or money’s worth to the fund; and

money that forms part of the fund property under provisions of this Act or the ASIC Act; and

money borrowed or raised by the operator of the fund for the purposes of the fund; and

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

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

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

funeral benefit has the meaning given by section 761A.

further market-related advice means advice to which subsection 946B(1) applies.

Gazette notice means a notice published in the Gazette.

general advice has the meaning given by subsection 766B(4).

general CSF risk warning has the meaning given by subsection 738ZA(2).

general insurance product means a financial product described in paragraph 764A(1)(d).

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

generally available in relation to information:

Note: See also insurance product and risk insurance product.

for the purposes of sections 674, 674A, 675 and 675A (continuous disclosure)—has the meaning given by section 676; and

for the purposes of Division 3 (insider trading prohibitions) of Part 7.10—has the meaning given by section 1042C.

giving a financial benefit has a meaning that is affected by section 229.

government entity has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

guarantor 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).

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.

holder:

(a) in relation to a financial product—means the person to whom the financial product was issued, or if it has (since issue) been disposed of to another person who has not themselves disposed of it, that other person; and

(b) in relation to an RSA—has the same meaning as in the Retirement Savings Accounts Act 1997;

and hold has corresponding meanings.

holding company means a body corporate of which the first body corporate is a subsidiary.

home economy for a passport fund means:

if the passport fund is a regulated CIS, or a sub-fund of a regulated CIS, in only one participating economy—that participating economy; and

if the passport fund is a regulated CIS, or a sub-fund of a regulated CIS, in more than one participating economy—the participating economy in which the fund is first registered or approved as a regulated CIS (however that registration or approval is described).

home regulator for a passport fund means the entity that is the Passport Regulator for the home economy for the passport fund under the Passport Rules for this jurisdiction.

host economy: a participating economy is a host economy for a passport fund if:

the participating economy is not the home economy for the fund; and

either:

it is permitted under the law of the participating economy to offer interests in the fund in that economy, on the basis that the fund is a passport fund; or

an application has been made under the law of the participating economy for permission to offer interests in the fund in that economy, on the basis that the fund is a passport fund.

hosting arrangement, in relation to a CSF offer, has the meaning given by subsection 738L(2).

host regulator for a passport fund means the entity that is the Passport Regulator for a host economy for the passport fund under the Passport Rules for this jurisdiction.

immediate family member for a person means:

the person’s spouse; or

a person who is wholly or partly dependent on the person for financial support.

in Australia has the meaning given by section 102C.

incentive right: see subsection 1100M(4).

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

income year has the same meaning as in the Income Tax Assessment Act 1997.

incorporated in Australia includes incorporated by or under a law of: the Commonwealth; or a State; or an internal Territory. incorporation: of a company—means the company’s first registration under this Act; and of any other incorporated body—means the body’s incorporation by or under a law (other than this Act). in default: (a) an officer of a body corporate who is in default, in relation to a contravention, includes an officer of the body corporate who is involved in the contravention (including a person who later ceases to be such an officer); and (b) a person who is in default, in relation to a contravention, includes a person who is involved in the contravention. independent person, in Part 2G.7 (independent reports on polls), has the meaning given by section 253UA.

the Commonwealth; or

a State; or

an internal Territory.

incorporation:

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

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

in default:

(a) an officer of a body corporate who is in default, in relation to a contravention, includes an officer of the body corporate who is involved in the contravention (including a person who later ceases to be such an officer); and

(b) a person who is in default, in relation to a contravention, includes a person who is involved in the contravention.

independent person, in Part 2G.7 (independent reports on polls), has the meaning given by section 253UA.

individual auditor means an individual who consents to be appointed, or is appointed, as auditor of a company, registered scheme or registrable superannuation entity.

individual fine formula means the formula set out in subsection 1311B(3).

industrial instrument means:

a contract of employment; or

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

information, in Division 3 (insider trading prohibitions) of Part 7.10, has a meaning affected by subsection 1042A(2).

information statement for a class of CGS depository interests has the meaning given by subsection 1020AH(1).

infringement notice:

in Part 7.5B—means an infringement notice issued under Part 5 of the Regulatory Powers Act; and

in Part 9.1A—means an infringement notice under Part 5 of the Regulatory Powers Act; and

in Part 9.4AA and Chapter 6CA—means an infringement notice issued under section 1317DAC; and

in Part 9.4AB, Part 7.6 and Part 9.4B—means an infringement notice given under section 1317DAM.

Note: For the provisions subject to the infringement notice:

in Part 7.5B, see section 908CH; and

in Part 9.1A, see section 1272F;

for an infringement notice issued under section 1317DAC, see section 1317DAC; and

for an infringement notice given under section 1317DAM, see section 1317DAN (under which the provisions include all strict liability offences and absolute liability offences against this Act and certain other offences and civil penalty provisions).

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

inside information has the meaning given by subsection 1042A(1).

Insolvency Practice Rules means the rules made by the Minister under section 105-1 of Schedule 2.

insolvent:

in relation to a person—has the meaning given by subsection 95A(2); and

in relation to a sub-fund of a CCIV—has the meaning given by subsection 1231A(3).

insolvent transaction has the meaning given by section 588FC.

insolvent under administration means:

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

a person who, under the law of a foreign country, has the status of an undischarged bankrupt; or

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

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

a corresponding provision of the law of a foreign country; or

a person who has executed a personal insolvency agreement under:

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

the corresponding provisions of the law of a foreign country;

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

a person who is a party (as a debtor) to a debt agreement under:

(i) Bankruptcy Act 1966; orPart IX of the

the corresponding provisions of the law of a foreign country.

insurance claims manager has the meaning given by section 761DA.

insurance product means a financial product described in paragraph 764A(1)(d), (e) or (f).

insure:

Note: See also general insurance product, investment life insurance product, life risk insurance product and risk insurance product.

(a) in relation to a contract of life insurance—insured, for the purposes of Division 4 (special provisions relating to insurance) of Part 7.8, has the meaning given by section 985A; and

(b) in relation to a superannuation complaint—insurer has the meaning given by section 761A.

interest:

(a) interest in relation to land includes:

a legal or equitable estate or interest in the land; or

a right, power or privilege over, or in relation to, the land; and

(b) interest in a managed investment scheme (including a notified foreign passport fund) means a right to benefits produced by the scheme (whether the right is actual, prospective or contingent and whether it is enforceable or not); and

(c) in interests of clients of a licensed trustee company—has a meaning affected by section 601VCB.Part 5D.5 (limit on control of licensed trustee companies)

in this jurisdiction or elsewhere has a meaning affected by subsection 102B(1).

investment in a company, disclosing entity or other body means:

a share in the company, disclosing entity or body; or

a debenture of the company, disclosing entity or body; or

a legal or equitable interest in:

a share in the company, disclosing entity or body; or

a debenture of the company, disclosing entity or body; or

an option to acquire (whether by way of issue or transfer) an investment in the company, disclosing entity or body covered by paragraph (a), (b) or (c); or

an option to dispose of an investment in the company, disclosing entity or body covered by paragraph (a), (b) or (c); or

an interest a person holds under an arrangement that is a derivative if:

the consideration to be provided under the arrangement; or

the value of the arrangement;

is ultimately determined, derived from or varies by reference to an investment in the company, disclosing entity or body covered by paragraph (a), (b), (c), (d) or (e).

To avoid doubt, the consideration to be provided under, or the value of, an arrangement in relation to an index is not ultimately determined, derived from or varies by reference to an investment in the company merely because the investment is taken into account in determining the value of the index.

investment in a notified foreign passport fund means:

an interest in the fund; or

a legal or equitable interest in an interest in the fund; or

an option to acquire (whether by way of issue or transfer) an investment in the fund covered by paragraph (a) or (b); or

an option to dispose of an investment in the fund covered by paragraph (a) or (b); or

an interest a person holds under an arrangement that is a derivative if:

the consideration to be provided under the arrangement; or

the value of the arrangement;

is ultimately determined, derived from or varies by reference to an investment in the fund covered by paragraph (a), (b), (c) or (d); or

an investment in the operator of the fund.

To avoid doubt, the consideration to be provided under, or the value of, an arrangement in relation to an index is taken not to be ultimately determined, derived from or vary by reference to an investment in the fund merely because the investment is taken into account in determining the value of the index.

investment in a registered scheme means:

an interest in the scheme; or

a legal or equitable interest in an interest in the scheme; or

an option to acquire (whether by way of issue or transfer) an investment in the scheme covered by paragraph (a) or (b); or

an option to dispose of an investment in the scheme covered by paragraph (a) or (b); or

an interest a person holds under an arrangement that is a derivative if:

the consideration to be provided under the arrangement; or

the value of the arrangement;

is ultimately determined, derived from or varies by reference to an investment in the scheme covered by paragraph (a), (b), (c) or (d); or

an investment in the responsible entity of the scheme.

To avoid doubt, the consideration to be provided under, or the value of, an arrangement in relation to an index is taken not to be ultimately determined, derived from or vary by reference to an investment in the scheme merely because the investment is taken into account in determining the value of the index.

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.

investment life insurance product means a financial product described in paragraph 764A(1)(f).

involved:

Note: See also insurance product.

in a contravention—has the meaning given by section 79; and

in a market licensee, CS facility licensee, derivative trade repository licensee or a benchmark administrator licensee, or in an applicant for such a licence—has the meaning given by section 853B.

issue:

(a) issue includes:

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

otherwise—circulate, distribute and disseminate; and

(b) in relation to a financial product—issue has the meaning given by section 761E.

issue situation has the meaning given by paragraph 1012B(2)(a).

issue Statement has the meaning given by subsection 1013A(1).

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

key management personnel for an entity has the same meaning as in the accounting standards.

kind, in relation to financial products or financial services, has a meaning affected by regulations made for the purposes of section 761CA.

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

law:

(a) law of a State or Territory means a law of, or in force in, the State or Territory; and

(b) in Chapter 5D (licensed trustee companies)—law has the meaning given by section 601RAA.

Note: The definition in paragraph (a) 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 are in the phrase “any provision of any law” in section 100A and the phrase “law of the Commonwealth” in section 156.

law of a recognised jurisdiction has the meaning given by subsection 1200A(1).

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

lead auditor has the meaning given by section 324AF.

lease does not include a lease of goods that gives rise to a PPSA security interest in the goods.

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.

levy period has the same meaning as in the Financial Services Compensation Scheme of Last Resort Levy Act 2023.

liability:

Note: An interest that arises under a lease of goods that in substance secures the payment or performance of an obligation, or that arises under a PPS lease within the meaning of the Personal Property Securities Act 2009, may be a PPSA security interest (see sections 12 and 13 of that Act and the definition of PPSA security interest in this section).

(a) liability (except in relation to a sub-fund of a CCIV):

includes a duty or obligation of any kind (whether arising under an instrument or otherwise, and whether actual, contingent or prospective); and

in relation to a CCIV—has a meaning affected by section 1233A; and

(b) liabilities, in relation to a sub-fund of a CCIV, has the meaning given by section 1233L.

licensed CS facility means a clearing and settlement facility the operation of which is authorised by an Australian CS facility licence.

licensed derivative trade repository has the meaning given by section 761A.

licensed market means a financial market the operation of which is authorised by an Australian market licence.

licensed trustee company means a trustee company that holds an Australian financial services licence covering the provision of one or more traditional trustee company services.

life policy has the same meaning as in the Life Insurance Act 1995.

life policy fund has the meaning given by section 761A.

life risk insurance product means a financial product described in paragraph 764A(1)(e).

limit of a margin lending facility has the meaning given by subsection 761EA(11).

limited company means:

Note: Traditional trustee company services are financial services: see subsection 766A(1A).

Note: See also insurance product and risk insurance product.

a company limited by shares; or

a company limited by guarantee; or

a company limited both by shares and guarantee;

but does not include a no liability company.

limited-service time-sharing adviser has the meaning given by section 910A.

linked:

(a) the incurring of a debt and a contravention of subsection 596AC(1), (2), (3) or (4) are linked if they are linked under subsection 596AC(10); and

(b) the disposition of a company’s property and a contravention of subsection 596AC(1), (2), (3) or (4) are linked if they are linked under subsection 596AC(10A).

linked to a refusal or failure to give effect to a determination made by AFCA has the meaning given by section 910C.

liquid:

for a registered scheme—has the meaning given by subsection 601KA(4); and

for a sub-fund—has the meaning given by subsection 1230H(1).

liquidator:

has a meaning affected by paragraph 530(b) (which deals with 2 or more persons appointed as liquidators); and

in Chapter 7, includes a provisional liquidator.

liquidity period, for an ESS interest: see subsection 1100ZB(7).

listed:

(a) a company, managed investment scheme or other body is listed if it is included in the official list of a declared financial market operated in this jurisdiction; and

(b) a retail CCIV that is not listed because of paragraph (a) is listed if:

the retail CCIV has only one sub-fund; and

that sub-fund is included in the official list of a declared financial market operated in this jurisdiction; and

(c) a sub-fund of a retail CCIV is listed if:

the sub-fund is included in the official list of a declared financial market operated in this jurisdiction; or

the retail CCIV is listed because of paragraph (a).

listed corporation means a body corporate that is included in an official list of a declared financial market.

listed disclosing entity has the meaning given by section 111AL.

listing market, in relation to a listed disclosing entity, has the meaning given by subsection 111AE(1), (1A), (1B) or (1C).

listing rules of a financial market, or proposed financial market, means any rules (however described) that are made by the operator of the market, or contained in the operator’s constitution, and that deal with:

admitting entities to, or removing entities from, the market’s official list, whether for the purpose of enabling financial products of those entities to be traded on the market or for other purposes; or

the activities or conduct of entities that are included on that list.

local agent 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; and

in relation to a document lodged with ASIC in a prescribed form—has a meaning affected by subsection 350(2).

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

made, in relation to a CSF offer, has the meaning given by subsection 738N(1).

makes a financial investment has the meaning given by section 763B.

makes a market for a financial product has the meaning given by section 766D.

makes non-cash payments has the meaning given by section 763D.

managed investment product means a financial product described in paragraph 764A(1)(b).

managed investment scheme means:

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);

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

a time-sharing scheme;

but does not include the following:

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);

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

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;

a franchise;

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

a regulated superannuation fund, an approved deposit fund, a pooled superannuation trust or a public sector superannuation scheme;

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

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

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;

a retirement village scheme operating within or outside Australia:

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

which is not a time-sharing scheme;

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

a contribution plan;

an ESS contribution plan for an offer of ESS interests that is eligible to be made under Division 1A of Part 7.12;

the provision of a crowd-funding service;

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

Note 1: 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).

Note 2: Paragraphs (c) and (i) have an extended meaning in relation to Chapter 8 (see subsection 1200A(3)).

Note 3: Under section 1213E, a notified foreign passport fund is to be treated as a managed investment scheme for the purposes of this Act.

manager has a meaning affected by section 90.

managerial or executive office has the meaning given by section 200AA.

manages financial risk has the meaning given by section 763C.

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

a receiver and manager of that property; or

any other controller of that property who has functions or powers in connection with managing the corporation;

and has a meaning affected by paragraph 434G(b) (which deals with 2 or more persons appointed as managing controllers).

mandatory code of conduct means a code of conduct that is declared by regulations under section 1101AE to be mandatory.

margin call:

(a) in relation to a standard margin lending facility—has the meaning given by subsection 761EA(4); and

in relation to a non-standard margin lending facility—has the meaning given by subsection 761EA(7); and

in relation to a facility that ASIC has declared to be a margin lending facility under subsection 761EA(8)—has the meaning given in the declaration.

margin lending facility has the meaning given by subsection 761EA(1).

market, in relation to an Australian market licence, has a meaning affected by section 795E.

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 interest in a managed investment scheme.

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

market integrity rules means the rules made by ASIC under section 798G.

market licensee means a person who holds an Australian market licence.

market traded option means an option declared by an operator of a declared financial market to be a market traded option.

material effect, for the purposes of Division 3 (insider trading prohibitions) of Part 7.10, has the meaning given by section 1042D.

maximum subscription amount, in relation to a CSF offer, has the meaning given by subsection 738L(7).

MCI (short for mutual capital instrument) has the meaning given by section 167AD.

MCI amendment resolution has the meaning given by section 167AI.

MCI mutual entity has the meaning given by section 167AC.

member:

Note: See also makes a market.

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

in relation to a sub-fund of a CCIV—means a person who is a member under subsection 1222Q(3); or

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

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

Memorandum of Cooperation means the Memorandum of Cooperation on the Establishment and Implementation of the Asia Region Funds Passport signed on behalf of Australia on 28 April 2016, as it applies in relation to Australia from time to time.

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 financial market.

minimum subscription amount, in relation to a CSF offer, has the meaning given by subsection 738L(8).

mining purposes means any or all of the following purposes: prospecting for ores, metals or minerals; obtaining, by any mode or method, ores, metals or minerals; the sale or other disposal of ores, metals, minerals or other products of mining; 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.

prospecting for ores, metals or minerals;

obtaining, by any mode or method, ores, metals or minerals;

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

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.

mortgage broker has the same meaning as in the National Consumer Credit Protection Act 2009.

mortgage intermediary has the same meaning as in the National Consumer Credit Protection Act 2009.

mutual entity has the meaning given by section 51M.

MySuper product has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

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 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.

negative solvency resolution means a resolution by the directors of a company that, in their opinion, there are not reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.

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

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

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

a letter of credit;

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

NGF means the National Guarantee Fund that continues in existence under section 889A.

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

nominated electronic address, in relation to the addressee of an electronic communication, means:

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)).

the most recent electronic address nominated by the addressee to the originator of the electronic communication as the electronic address for receiving electronic communications; or

if:

the addressee has nominated an electronic address as mentioned in paragraph (a) and the originator knows, or there are reasonable grounds to believe, that the address is not a current electronic address for the addressee; or

the addressee has not nominated an electronic address as mentioned in paragraph (a);

an electronic address that the originator believes on reasonable grounds to be a current electronic address for the addressee for receiving electronic communications.

non-audit services provider for an auditor conducting an audit means a person who:

is not a professional member of the audit team conducting the audit of the audited body; and

is either:

if the auditor is an individual auditor—an employee of the individual auditor (or of an entity acting for, or on behalf of, the individual auditor); or

if the auditor is an audit firm—a member of the audit firm or senior manager of the audit firm (or of an entity acting for, or on behalf of, the audit firm); or

if the auditor is an audit company—a director of the audit company or a senior manager of the audit company (or of an entity acting for, or on behalf of, the audit company); and

provides, or has provided, services (other than services related to the conduct of an audit) to the audited body.

non-cash payments: see makes non-cash payments.

non-shareholder mutual member of an MCI mutual entity means a person who is a member of the entity otherwise than as a holder of a share (whether or not the person also holds one or more shares in the entity).

non-standard margin lending facility has the meaning given by subsection 761EA(5).

notice includes a circular and an advertisement.

notified foreign passport fund: see section 1213C.

number of shares, in relation to a body corporate, has a meaning affected by section 101.

of, in relation to financial products, 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.

offence based on a particular provision of this Act means, unless a contrary intention appears:

if that provision creates an offence—an offence against that provision, or an offence against section 1314 that relates to that provision; or

if section 1311 creates an offence relating to that provision—an offence against section 1311 or 1314 that relates to that provision; or

if another provision creates an offence relating to that provision—an offence against that other provision or section 1314 that relates to that other provision.

offer:

(a) offer a security (other than a financial product) includes:

invite applications for the issue of the security; and

invite offers to purchase the security; and

(b) offer to issue or sell a financial product, for the purposes of Part 7.8A (design and distribution requirements) and Part 7.9 (financial product disclosure), has a meaning affected by subsection 1010C(2); and

(c) the person who offers a security:

(unless subparagraph (ii) applies) is the person who has the capacity, or who agrees, to issue or transfer the security if the offer is accepted; or

for the purposes of Chapter 8 (mutual recognition of securities offers), if the offer is an offer of a kind prescribed by the regulations for the purposes of this subparagraph—is a person of a kind prescribed by the regulations for the purposes of this subparagraph;

and that person is the offeror of the security.

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

offer of simple corporate bonds has the meaning given by section 713A.

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

offer platform, in relation to a CSF offer, has the meaning given by subsection 738L(6).

offer-specific prospectus, in relation to an offer of simple corporate bonds, has the meaning given by subsection 713D(1).

officer has the meaning given by section 9AD.

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

official employment means:

Note: Section 1010C applies for the purposes of Part 7.8A: see subsection 994A(3).

appointment or employment by the Commonwealth, or the performance of services for the Commonwealth; or

the exercise of powers or performance of functions under a delegation by the Registrar.

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 10.1.

old Division 12 of Part 11.2 transitionals means the following:

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

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 a financial market: see subsection 767A(3).

on behalf of includes on the instructions of.

ongoing fee has the meaning given by section 962B.

ongoing fee arrangement has the meaning given by section 962A.

on-market: a transaction of any kind is an on-market transaction if it is effected on a declared financial market and is:

an on-market transaction as defined in the rules governing the operation of the market; or

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

on-market buy-back means a buy-back by a listed corporation on a declared financial market in the ordinary course of trading on that market.

open, in relation to a CSF offer, has the meaning given by subsection 738N(2).

operated in this jurisdiction:

in relation to a financial market—has a meaning affected by section 791D; and

in relation to a clearing and settlement facility—has a meaning affected by section 820D.

operating rules:

of a clearing and settlement facility, or proposed clearing and settlement facility—means any rules (however described) made by the operator of the facility, or contained in the operator’s constitution, that deal with:

the activities or conduct of the facility; or

the activities or conduct of persons in relation to the facility;

but does not include any such rules that deal with matters in respect of which licensed CS facilities must have written procedures under regulations made for the purposes of subsection 822A(2); and

of a financial market, or proposed financial market—means any rules (however described), including the market’s listing rules (if any), that are made by the operator of the market, or contained in the operator’s constitution, and that deal with:

the activities or conduct of the market; or

the activities or conduct of persons in relation to the market;

but does not include:

any such rules that deal with matters in respect of which licensed markets must have written procedures under regulations made for the purposes of subsection 793A(2); or

compensation rules; and

of the SEGC—means the rules referred to in section 890D.

operator of a passport fund means the entity that is the operator of the fund under the Passport Rules for this jurisdiction.

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

outstanding property 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.

paid parental leave employer has the meaning given by subsection 600AA(2).

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

Part 5.1 body means:

a company; or

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

Part 5.7 body means:

a registrable body that is a registrable Australian body and:

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

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

a registrable body that is a foreign company and:

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

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

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;

but does not include an Aboriginal and Torres Strait Islander corporation.

Part 7.5 authority has the meaning given by section 892A.

Part 7.5 regulated fund has the meaning given by section 892A.

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

participant:

Note: The winding up of Aboriginal and Torres Strait Islander corporations is dealt with in Corporations (Aboriginal and Torres Strait Islander) Act 2006.Part 11-5 of the

in a clearing and settlement facility—has the meaning given by subsections 768A(3) and (4); and

in a financial market—has the meaning given by subsections 767A(4) and (5).

participating economy has the meaning given by section 1210.

party, in relation to a transaction that has been completed, given effect to, or terminated, includes a person who was a party to the transaction.

passes the legitimate control test has the meaning given by section 852DC.

passport fund means a regulated CIS, or a sub-fund of a regulated CIS, registered as a passport fund in a participating economy.

Passport Rules: see section 1211A.

payment (when used in Division 2 of Part 2D.2 (sections 200 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.

payment period, in relation to an infringement notice issued under Part 9.4AB, has the meaning given by section 1317DAQ.

pecuniary penalty applicable:

to the contravention of a civil penalty provision by an individual—has the meaning given by section 1317G; and

to the contravention of a civil penalty provision by a body corporate—has the meaning given by section 1317G.

penalty applicable:

to an offence committed by an individual—has the meaning given by section 1311B; and

to an offence committed by a body corporate—has the meaning given by section 1311C; and

in section 1314 (continuing offences)—has the meaning given by subsection 1314(5).

pension has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

person:

in Division 2 of Part 2D.2—includes a superannuation fund; and

for the purposes of Chapter 5 and Part 9.2—has a meaning affected by subsection 6(1) (which deals with Part 5.7 bodies); and

in applying Chapter 7 and Part 6D.3A—has a meaning affected by section 761F (which deals with partnerships) and section 761FA (which deals with multiple trustees).

personal advice has the meaning given by subsections 766B(3) and (3A).

person with a proper interest, in relation to an estate, has a meaning affected by section 601RAD.

place of origin:

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

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

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

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

platform includes a website or other electronic facility.

play a significant role: a person plays a significant role in the audit of a company, a registered scheme or a registrable superannuation entity for a financial year if:

the person is appointed as an individual auditor of the company, scheme or entity for that financial year and:

acts as an auditor for the company, scheme or entity for that financial year; or

prepares an auditor’s report for the company, scheme or entity in relation to a financial report of the company, scheme or entity for that financial year or for a half-year falling within that financial year; or

a firm or company is appointed as an auditor of the company, scheme or entity for that financial year and the person:

is a registered company auditor; and

acts, on behalf of the firm or company, as a lead auditor, or review auditor, in relation to an audit of the company, scheme or entity for that financial year or for a half-year falling within that financial year.

policy cost for a life risk insurance product, or life risk insurance products, for a year has the meaning given by subsections 963B(3B) and (3C).

pooled superannuation trust has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

pooling determination means a determination under subsection 571(1).

pooling order means an order under subsection 579E(1).

positive solvency resolution means a resolution by the directors of a company that, in their opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.

possession has a meaning affected by section 86.

possessory security interest means a security interest that is: (a) a PPSA security interest in the property that is perfected by possession or control, within the meaning of the Personal Property Securities Act 2009; or a lien or a pledge in relation to the property.

(a) a PPSA security interest in the property that is perfected by possession or control, within the meaning of the Personal Property Securities Act 2009; or

a lien or a pledge in relation to the property.

Note: Security interests are either PPSA security interests, or charges, liens or pledges: see security interest.

power includes an authority.

PPSA retention of title property (short for Personal Property Security Act retention of title property) has the meaning given by section 51F.

PPSA security interest (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.

Note 1: The Personal Property Securities Act 2009 applies to certain security interests in personal property: see the following provisions of that Act:

section 8 (interests to which the Act does not apply);

(b) security interest);section 12 (meaning of

Chapter 9 (transitional provisions).

Note 2: For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.

pre-CSLR complaint has the same meaning as in the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023.

premises includes:

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

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

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

prescribed CS facility means a licensed CS facility that is prescribed by regulations made for the purposes of this definition.

prescribed derivative trade repository means a facility that is (or that is in a class that is) prescribed by the regulations for the purposes of paragraph 901A(6)(b).

prescribed form: see section 350.

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

procure for the purposes of Division 3 (insider trading prohibitions) of Part 7.10 has a meaning affected by section 1042F.

Product Disclosure Statement:

means a Product Disclosure Statement:

required by section 1012A, 1012B, 1012C, 1012I or 1012IA to be given in accordance with Division 2 of Part 7.9; or

that section 1012H requires an issuer of a financial product to take reasonable steps to ensure is given to a new group member in accordance with Division 2 of Part 7.9; and

has a meaning affected by section 1014J (about Replacement Product Disclosure Statements).

product intervention order means an order made under subsection 1023D(1) or (3).

professional accounting body has the same meaning as in the ASIC Act.

professional employee of an individual auditor, audit firm or audit company means an employee of the auditor, firm or company who participates in the conduct of the audits on behalf of the auditor, firm or company and, in the course of doing so, exercises professional judgment in relation to the application of or compliance with:

accounting standards; or

auditing standards; or

the provisions of this Act dealing with financial reporting and the conduct of audits.

professional investor means a person in relation to whom one or more of the following paragraphs apply: the person is a financial services licensee whose Australian financial services licence covers the provision of financial services that are not limited to claims handling and settling services; the person is a body regulated by APRA, other than a trustee of any of the following: a superannuation fund; an approved deposit fund; a pooled superannuation trust; a public sector superannuation scheme; (c) the person is a registered entity within the meaning of the Financial Sector (Collection of Data) Act 2001; the person is the trustee of: (i) a superannuation fund; or an approved deposit fund; or a pooled superannuation trust; or a public sector superannuation scheme; and the fund, trust or scheme has net assets of at least $10 million; the person controls at least $10 million (including any amount held by an associate or under a trust that the person manages); the person is a listed entity, or a related body corporate of a listed entity; the person is an exempt public authority; the person is a body corporate, or an unincorporated body, that: carries on a business of investment in financial products, interests in land or other investments; and for those purposes, invests funds received (directly or indirectly) following an offer or invitation to the public, within the meaning of section 82, the terms of which provided for the funds subscribed to be invested for those purposes; (i) the person is a foreign entity that, if established or incorporated in Australia, would be covered by one of the preceding paragraphs.

the person is a financial services licensee whose Australian financial services licence covers the provision of financial services that are not limited to claims handling and settling services;

the person is a body regulated by APRA, other than a trustee of any of the following:

a superannuation fund;

an approved deposit fund;

a pooled superannuation trust;

a public sector superannuation scheme;

(c) the person is a registered entity within the meaning of the Financial Sector (Collection of Data) Act 2001;

the person is the trustee of:

(i) a superannuation fund; or

an approved deposit fund; or

a pooled superannuation trust; or

a public sector superannuation scheme;

and the fund, trust or scheme has net assets of at least $10 million;

the person controls at least $10 million (including any amount held by an associate or under a trust that the person manages);

the person is a listed entity, or a related body corporate of a listed entity;

the person is an exempt public authority;

the person is a body corporate, or an unincorporated body, that:

carries on a business of investment in financial products, interests in land or other investments; and

for those purposes, invests funds received (directly or indirectly) following an offer or invitation to the public, within the meaning of section 82, the terms of which provided for the funds subscribed to be invested for those purposes;

(i) the person is a foreign entity that, if established or incorporated in Australia, would be covered by one of the preceding paragraphs.

Note: A CCIV can also be a professional investor, see section 1241K.

professional member of the audit team for an audit has the meaning given by section 324AE.

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

prohibition end day, in relation to a registration prohibition order, has the meaning given by subparagraph 921L(1)(c)(ii).

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: in Part 5.2 (receivers, and other controllers, of property of corporations)—has a meaning affected by section 416; and in Part 5.3A (administration)—has a meaning affected by section 435B; and in Part 5.3B (restructuring)—has a meaning affected by section 452B; and in Part 5.4B (winding up in insolvency or by the Court)—has a meaning affected by section 465; and in Part 5.5 (voluntary winding up)—has a meaning affected by section 489F; and in Part 5.6 (winding up generally)—has a meaning affected by section 513AA; and in Part 5.7B (recovering property or compensation for creditors of insolvent company)—has a meaning affected by section 588C; and in Part 5.8 (offences relating to external administration)—has a meaning affected by subsection 589(5); and in Part 5A.1 (deregistration, and transfer of registration, of companies)—has a meaning affected by section 601; and in Part 5B.2 (registrable bodies)—has a meaning affected by section 601C; and in Part 7.3B (crisis resolution for CS facility licensees)—has a meaning affected by subsection 833A(4); and in Part 8B.5 (operation of a CCIV)—has a meaning affected by section 1233; and in Part 8B.6 (external administration and deregistration of CCIVs)—has a meaning affected by section 1236A.

in Part 5.2 (receivers, and other controllers, of property of corporations)—has a meaning affected by section 416; and

in Part 5.3A (administration)—has a meaning affected by section 435B; and

in Part 5.3B (restructuring)—has a meaning affected by section 452B; and

in Part 5.4B (winding up in insolvency or by the Court)—has a meaning affected by section 465; and

in Part 5.5 (voluntary winding up)—has a meaning affected by section 489F; and

in Part 5.6 (winding up generally)—has a meaning affected by section 513AA; and

in Part 5.7B (recovering property or compensation for creditors of insolvent company)—has a meaning affected by section 588C; and

in Part 5.8 (offences relating to external administration)—has a meaning affected by subsection 589(5); and

in Part 5A.1 (deregistration, and transfer of registration, of companies)—has a meaning affected by section 601; and

in Part 5B.2 (registrable bodies)—has a meaning affected by section 601C; and

in Part 7.3B (crisis resolution for CS facility licensees)—has a meaning affected by subsection 833A(4); and

in Part 8B.5 (operation of a CCIV)—has a meaning affected by section 1233; and

in Part 8B.6 (external administration and deregistration of CCIVs)—has a meaning affected by section 1236A.

Note: A reference in this Act to the property of a corporation does not include a reference to any PPSA retention of title property of the corporation, unless provided otherwise expressly or by necessary implication (see section 51F). The sections mentioned in paragraphs (a) to (i) extend references to property of a corporation in Parts of this Act to PPSA retention of title property (or to certain PPSA retention of title property).

property recovery provisions has the meaning given by subsection 1238A(2).

proportional takeover approval provisions 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)).

proposed action notice has the meaning given by subsection 921P(1).

proposed licensed trustee company means a company: that is a trustee company, or a corporation to which paragraph 51(xx) of the Constitution applies that proposes to become a trustee company; and that proposes to apply for an Australian financial services licence covering the provision of one or more traditional trustee company services.

that is a trustee company, or a corporation to which paragraph 51(xx) of the Constitution applies that proposes to become a trustee company; and

that proposes to apply for an Australian financial services licence covering the provision of one or more traditional trustee company services.

proposed operator of a collective investment fund has the meaning given by subsection 1212(1).

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

prospectus means a prospectus that is lodged with ASIC.

protected information means information: obtained by a person in the course of the person’s official employment; and disclosed to the person or another person, or obtained by the person or another person: under, or in relation to, this Act; or under another law of the Commonwealth; in connection with particular functions or powers of the Registrar.

obtained by a person in the course of the person’s official employment; and

disclosed to the person or another person, or obtained by the person or another person:

under, or in relation to, this Act; or

under another law of the Commonwealth;

in connection with particular functions or powers of the Registrar.

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).

provide:

(a) in relation to a financial product—provide has a meaning affected by section 761E; and

(b) in Subdivision A (volume-based shelf-space fees) of provider has the meaning given by subsection 964(2).Division 5 of Part 7.7A—

providing finance means:

lending money; or

giving guarantees or security for loans made by someone else; or

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

a Schedule, or an item in a Schedule, to the law.

provisional liquidator has a meaning affected by paragraph 530AA(b) (which deals with 2 or more persons appointed as provisional liquidators).

provisional relevant provider means a relevant provider who is undertaking work and training in accordance with subsection 921B(4).

public company means a company other than a proprietary company or a CCIV and: in section 195 and Chapter 2E, includes a body corporate (other than a prescribed body corporate) that: is incorporated in a State or an internal Territory, but not under this Act; and is included in the official list of a declared financial market; and in Chapter 2E does not include a company that is not required to have “Limited” in its name because of section 150 or 151. public document, in relation to a body, has the meaning given by section 88A.

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

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

is included in the official list of a declared financial market; and

in Chapter 2E does not include a company that is not required to have “Limited” in its name because of section 150 or 151.

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

public interest proceedings means proceedings under section 50 of the ASIC Act.

public sector superannuation scheme has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

publish:

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

in any case—includes issue.

purchase of a financial product, for the purposes of Part 7.8A (design and distribution requirements) and Part 7.9 (financial product disclosure), has the meaning given by subsection 1010C(1).

qualified accountant has the meaning given by section 88B.

qualified privilege has the meaning given by section 89.

qualified tax relevant provider has the meaning given by section 910A.

quotation includes the displaying or providing, on a financial market, of information concerning: if offers to dispose of, purchase or exchange the financial product at particular prices, or for particular consideration, are made or accepted on that financial market—those prices or that consideration; or if offers or invitations are made on that financial market, being offers or invitations that are intended, or may reasonably be expected, to result in the making or acceptance of offers to dispose of, purchase or exchange the financial products at particular prices, or for particular consideration—those prices or that consideration; or 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 dispose of, purchase or exchange the financial products.

Note: Section 1010C applies for the purposes of Part 7.8A: see subsection 994A(3).

if offers to dispose of, purchase or exchange the financial product at particular prices, or for particular consideration, are made or accepted on that financial market—those prices or that consideration; or

if offers or invitations are made on that financial market, being offers or invitations that are intended, or may reasonably be expected, to result in the making or acceptance of offers to dispose of, purchase or exchange the financial products at particular prices, or for particular consideration—those prices or that consideration; or

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 dispose of, purchase or exchange the financial products.

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

quoted security means a security that is quoted on a declared financial market.

reasonable investigation into financial products has a meaning affected by section 961D.

reasonably apparent:

for the purposes of Division 2 (best interests obligations) of Part 7.7A—has the meaning given by section 961C; and

for the purposes of Subdivision B (asset-based fees on borrowed amounts) of Division 5 of Part 7.7A—has the meaning given by section 964H.

recapitalisation direction means a direction given under subsection 823F(1), to the extent that the direction deals with a matter in paragraph 823F(1)(c).

recapitalises: a body corporate recapitalises if the body corporate:

increases the body corporate’s level of share capital; or

issues one or more classes of shares, or one or more classes of rights to acquire shares, in the body corporate; or

issues capital instruments; or

acquires, cancels or sells:

shares in the body corporate; or

rights to acquire shares in the body corporate; or

reduces the body corporate’s share capital; or

varies or cancels rights or restrictions attached to shares in a class of shares in the body corporate.

receive, in relation to an electronic communication, has a meaning affected by section 105A.

receiver has a meaning affected by paragraph 434D(b) (which deals with 2 or more persons appointed as receivers) and:

in Part 5.2 (receivers, and other controllers, of property)—has a meaning affected by section 416; and

in Part 5.3A (deeds of company arrangement)—has a meaning affected by section 435B; and

in Part 8B.6 (external administration and deregistration of CCIVs)—has a meaning affected by section 1236A.

receiver and manager has a meaning affected by section 90 and has a meaning affected by paragraph 434E(b) (which deals with 2 or more persons appointed as receivers and managers).

receiving company has the meaning given by subsection 601WBA(1).

recent advising history has the meaning given by section 922G.

recognised jurisdiction has the meaning given by subsection 1200A(1).

recognised offer has the meaning given by section 1200B.

recommendation situation has the meaning given by paragraph 1012A(2)(a).

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.

redeemable share, in a CCIV, has the meaning given by subsection 1230B(4).

referable:

in relation to a sub-fund, and a share in a CCIV—has the meaning given by subsection 1230(1); and

in relation to a sub-fund, and a class of shares in a CCIV—has the meaning given by subsection 1230A(2); and

in relation to a sub-fund, and a debenture issued by a CCIV—has the meaning given by subsection 1231N(1).

Reference Checking and Information Sharing Protocol means the protocol determined by ASIC under subsection 912A(3A).

referring State has the meaning given by section 4.

register:

(a) register means register under this Act; and

(b) register kept by ASIC under this Act has a meaning affected by subsection 1214(4) (about the Register of Passport Funds).

Note: See also Business Names Register and Register of Relevant Providers.

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

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

registered company auditor:

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

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 has the same meaning as in section 5-5 of Schedule 2.

registered office means the registered office of the company or body under section 142 or 601CT, as the case requires.

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

registered tax agent has the same meaning as in the Tax Agent Services Act 2009.

registered tax agent or BAS agent has the same meaning as in the Tax Agent Services Act 2009.

Register of Relevant Providers means the Register of Relevant Providers maintained under section 922Q.

registrable Australian body means:

a body corporate, not being:

a company; or

an exempt public authority; or

a corporation sole; or

an unincorporated body that, 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;

but does not include a foreign company.

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

registrable superannuation entity:

(a) when used in a provision outside Chapter 2M or an associated definition—has the same meaning as in the Superannuation Industry (Supervision) Act 1993; and

(b) when used in Chapter 2M or an associated definition—means a registrable superannuation entity (within the meaning of the Superannuation Industry (Supervision) Act 1993), but does not include the following:

an exempt public sector superannuation scheme;

(ii) an excluded approved deposit fund (within the meaning of the Superannuation Industry (Supervision) Act 1993);

a small APRA fund (within the meaning of section 1017BB).

For the purposes of this definition, each of the following is an associated definition:

(a) the definition of audit company;

(b) the definition of audit-critical employee;

(c) the definition of audited body;

(d) the definition of audit firm;

(e) the definition of consolidated entity;

(f) the definition of director;

(g) the definition of financial year;

(h) the definition of individual auditor;

(i) the definition of officer;

(j) the definition of play a significant role;

(k) the definition of RSE remuneration report.

Registrar means:

if only one Commonwealth body is appointed as Registrar under section 1270—that body; or

if more than one Commonwealth body is appointed under section 1270:

for a reference in a provision that relates to one or more particular functions or powers—any Commonwealth body so appointed with any of those particular functions or powers; or

otherwise—any of the Commonwealth bodies appointed under section 1270.

registration prohibition order has the meaning given by paragraph 921L(1)(c).

registration suspension order has the meaning given by paragraph 921L(1)(b).

regulated CIS has the same meaning as in the Passport Rules for this jurisdiction.

regulated entity has the meaning given by section 1317AAB.

regulated person:

in relation to a financial product:

in Part 7.8A (design and distribution requirements)—has the meaning given by subsection 994A(2); and

in Divisions 2 (Product Disclosure Statements) and 7 (enforcement) of Part 7.9—has the meaning given by section 1011B; and

in relation to a CGS depository interest, in Division 5C (information about CGS depository interests) of Part 7.9—has the meaning given by subsection 1020AH(2).

regulated sale means a sale: that, under subsection 707(2), (3) or (5), needs disclosure to investors under Part 6D.2; or in relation to which a Product Disclosure Statement must be given under subsection 1012C(5), (6) or (8); or made in circumstances prescribed by regulations made for the purposes of this paragraph.

that, under subsection 707(2), (3) or (5), needs disclosure to investors under Part 6D.2; or

in relation to which a Product Disclosure Statement must be given under subsection 1012C(5), (6) or (8); or

made in circumstances prescribed by regulations made for the purposes of this paragraph.

regulated superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

related body corporate means a body corporate that is related to the first-mentioned body, as determined in accordance with section 50.

related entity means any of the following: a promoter of the body; a relative of such a promoter; a relative of a spouse of such a promoter; a director or member of the body or of a related body corporate; a relative of such a director or member; a relative of a spouse of such a director or member; a body corporate that is related to the first-mentioned body; a beneficiary under a trust of which the first-mentioned body is or has at any time been a trustee; a relative of such a beneficiary; a relative of a spouse of such a beneficiary; a body corporate one of whose directors is also a director of the first-mentioned body; 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:

a promoter of the body;

a relative of such a promoter;

a relative of a spouse of such a promoter;

a director or member of the body or of a related body corporate;

a relative of such a director or member;

a relative of a spouse of such a director or member;

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

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

a relative of such a beneficiary;

a relative of a spouse of such a beneficiary;

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

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 (other than in relation to a CCIV) has the meaning given by section 228; and

when used in Chapters 2E and 8B, in relation to a CCIV, has the meaning given by section 1227E; and

when used in Part 6D.3A—has the meaning given by subsection 738G(3); and

when used in Division 2 of Part 5C.10, Chapter 8A and the Passport Rules for this jurisdiction—has the meaning given by the Passport Rules for this jurisdiction.

relation-back day has the meaning given by section 91.

relative means the spouse, parent or remoter lineal ancestor, child or remoter issue, or brother or sister of the person.

relevant AFCA determination has the meaning given by section 1065.

relevant agreement means an agreement, arrangement or understanding: whether formal or informal or partly formal and partly informal; and whether written or oral or partly written and partly oral; and whether or not having legal or equitable force and whether or not based on legal or equitable rights. relevant conduct: for an issue situation—has the meaning given by paragraph 1012B(2)(b); and for a recommendation situation—has the meaning given by paragraph 1012A(2)(b); and for a sale situation—has the meaning given by paragraph 1012C(2)(b).

whether formal or informal or partly formal and partly informal; and

whether written or oral or partly written and partly oral; and

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

relevant conduct:

for an issue situation—has the meaning given by paragraph 1012B(2)(b); and

for a recommendation situation—has the meaning given by paragraph 1012A(2)(b); and

for a sale situation—has the meaning given by paragraph 1012C(2)(b).

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

relevant Division 3 financial products has the meaning given by subsection 1042A(1).

relevant financial market, for a listed company, listed registered scheme or listed notified foreign passport fund means:

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.

Note: This definition refers to .Division 3 (insider trading prohibitions) of Part 7.10

the declared financial market on which the company, scheme or fund is listed; or

if the company, scheme or fund is listed on 2 or more prescribed financial markets—each of those markets.

relevant financial products has the meaning given by section 910A.

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

relevant market operator, for a listed company, listed registered scheme or listed notified foreign passport fund means:

if there is only one relevant financial market for the company, scheme or fund—the operator of that relevant financial market; or

if there is 2 or more relevant financial markets for the company, scheme or fund—each of the operators of each of those relevant financial markets.

relevant personal circumstances has the meaning given by section 761A.

relevant provider has the meaning given by section 910A.

relinquishment order has the meaning given by subsection 1317GAB(1).

remedial order means an order that: restrains a person from exercising any voting or other rights attached to securities; or directs a body corporate not to make or to defer payment of an amount due from the body corporate in respect of securities; or restrains a person from acquiring securities or an interest in securities; or directs a person to dispose of, or not to dispose of, securities or interests in securities; or directs the disposal referred to in paragraph (d): to be made within a specified time; or to be made subject to specified conditions; or not to be made to a specified person or persons or to a specified class or classes of persons; 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 vests securities, or an interest in securities, in ASIC; or directs a body corporate not to register the transfer or transmission of securities; or cancels securities issued as consideration for offers under a takeover bid; or declares that an exercise of the voting or other rights attached to securities be disregarded; or cancels or declares voidable: an agreement or offer relating to a takeover bid, or a proposed takeover bid; or any other agreement or offer in connection with the acquisition of securities or relevant interests in securities; directs a person to give specified information to the holders of securities of a body corporate; or directs a body corporate not to issue securities to a person; or 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 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 directors’ remuneration. For the purposes of this definition, the following are not officers of a corporation: a receiver, or receiver and manager, of the property of the corporation; an administrator of the corporation; an administrator of a deed of company arrangement executed by the corporation; a restructuring practitioner for the corporation; a restructuring practitioner for a restructuring plan made by the corporation; a liquidator of the corporation; a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

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

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

restrains a person from acquiring securities or an interest in securities; or

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

directs the disposal referred to in paragraph (d):

to be made within a specified time; or

to be made subject to specified conditions; or

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

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

vests securities, or an interest in securities, in ASIC; or

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

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

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

cancels or declares voidable:

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

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

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

directs a body corporate not to issue securities to a person; or

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

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 directors’ remuneration. For the purposes of this definition, the following are not officers of a corporation:

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

an administrator of the corporation;

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

a restructuring practitioner for the corporation;

a restructuring practitioner for a restructuring plan made by the corporation;

a liquidator of the corporation;

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

remuneration committee has the meaning given by paragraph 206K(2)(b).

remuneration consultant means a person: who makes a remuneration recommendation under a contract for services with the company to whose key management personnel the recommendation relates; and who is not an officer or employee of the company.

who makes a remuneration recommendation under a contract for services with the company to whose key management personnel the recommendation relates; and

who is not an officer or employee of the company.

remuneration recommendation has the meaning given by section 9B.

remuneration report means the section of the directors’ report for a financial year for a listed public company that is included under subsection 300A(1).

replaceable rule: see section 135.

Replacement Product Disclosure Statement has the meaning given by section 1014H.

reportable situation has the meaning given by section 912D.

reporting period, in Part 7.8A (design and distribution requirements), has the meaning given by subsection 994A(2).

reporting requirements, in relation to derivative transactions, has the meaning given by subsection 901A(6).

representative of a person means:

if the person is a financial services licensee:

an authorised representative of the licensee; or

an employee or director of the licensee; or

an employee or director of a related body corporate of the licensee; or

any other person acting on behalf of the licensee; or

in any other case:

an employee or director of the person; or

an employee or director of a related body corporate of the person; or

any other person acting on behalf of the person.

reproduction, 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; or

a print made from a negative of the document.

Reserve Bank means the Reserve Bank of Australia.

Reserve Bank staff member means staff member of the Reserve Bank Service (within the meaning of the Reserve Bank Act 1959).

resolution 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.

response period for a proposed action notice has the meaning given by paragraph 921P(2)(b).

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 holding party for an Australian passport fund or a notified foreign passport fund means the responsible holding party of the assets of the fund under the Passport Rules for this jurisdiction.

responsible intermediary, in relation to a CSF offer, has the meaning given by subsection 738L(5).

responsible licensee, in relation to a contravention of a provision of Part 7.7A, has the meaning given by section 961P.

responsible person for a Product Disclosure Statement has the meaning given by subsection 1013A(3).

restricted civil penalty provision has the meaning given by subsection 921Q(3).

restructuring, in relation to a company, has the meaning (except in paragraph 588GA(2)(e) or section 821H) given by section 453A.

restructuring plan means a plan executed under Part 5.3B or such a plan as varied and in force from time to time.

restructuring practitioner:

in relation to a company but not in relation to a restructuring plan:

means a small business restructuring practitioner for the company appointed under Part 5.3B; and

if 2 or more persons are appointed under that Part as small business restructuring practitioners for the company—has a meaning affected by paragraph 456M(2)(b); or

in relation to a restructuring plan:

means a small business restructuring practitioner for the plan appointed under Part 5.3B; and

if 2 or more persons are appointed under that Part as small business restructuring practitioners for the plan—has a meaning affected by paragraph 456N(2)(b).

restructuring relief period has the meaning given by section 458D.

result includes:

when used as a verb—result indirectly; and

when used as a noun—an indirect result.

retail CCIV has the meaning given by subsection 1222J(1).

retail client:

except in relation to a CSF offer—has the meaning given by sections 761G and 761GA; and

in relation to a CSF offer—has the meaning given by section 738D.

retail product distribution conduct has the meaning given by subsection 994A(1).

retention of title clause: property is subject to a retention of title clause under a contract for the sale of property:

if the contract contains a provision the effect of which is that the seller retains title in the property until the purchase price, or another amount, has been paid in full; and

if the purchase price, or the other amount, as the case may be, has not been paid in full; and

to the extent that the contract does not give rise to a PPSA security interest in the property.

Note: See also PPSA retention of title property and PPSA security interest.

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.

return of particulars for a company, registered scheme or notified foreign passport fund means a statement given by ASIC that contains any or all of the following:

some or all of the particulars in relation to the company, scheme or fund that are recorded in a register that ASIC maintains, or ensures is maintained, under subsection 1214(1) or 1274(1);

a requirement to provide a particular under section 348B;

a requirement to comply with a subsection of section 348C (and, if applicable, pass a resolution).

review auditor has the meaning given by section 324AF.

review date has the meaning given by section 345A.

review fee has the same meaning as in the Corporations (Review Fees) Act 2003.

review period for a target market determination has the meaning given by subsection 994A(1).

review triggers for a target market determination has the meaning given by paragraph 994B(5)(d).

revised claims, fees and costs estimate has the same meaning as in the Financial Services Compensation Scheme of Last Resort Levy Act 2023.

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.

rights issue has the meaning given by subsections 9A(1) and (2).

risk insurance product means a financial product described in paragraph 764A(1)(d) or (e).

RSA has the same meaning as in the Retirement Savings Accounts Act 1997.

RSA provider has the same meaning as in the Retirement Savings Accounts Act 1997.

RSE licensee has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

RSE licensee law has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

RSE remuneration report means the section of the directors’ report for a financial year for a registrable superannuation entity that is included under subsection 300C(1).

rules of court means:

Note: See also general insurance product, insurance product and life risk insurance product.

Note: RSA is short for retirement savings account.

Note: RSA is short for retirement savings account.

Note: RSE is short for registrable superannuation entity.

rules of the Federal Court; or

rules of a State or Territory Supreme Court; or

rules of the Federal Circuit and Family Court of Australia (Division 1);

as the case requires.

sale:

in relation to an annuity policy—has the meaning given by section 761A; and

of a financial product, for the purposes of Part 7.8A (design and distribution requirements) and Part 7.9 (financial product disclosure)—has the meaning given by subsection 1010C(1).

Note: Section 1010C applies for the purposes of Part 7.8A: see subsection 994A(3).

sale situation has the meaning given by paragraph 1012C(2)(a).

sale Statement has the meaning given by subsection 1013A(2).

scheme property of a registered scheme means:

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

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

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

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

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.

scope 1 greenhouse gas emissions has the meaning given by the sustainability standards.

scope 2 greenhouse gas emissions has the meaning given by the sustainability standards.

scope 3 greenhouse gas emissions has the meaning given by the sustainability standards.

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

secrecy provision has the meaning given by subsection 1270M(2).

section 486B warrant means a warrant issued under section 486B.

section 513CA day has the meaning given by section 513CA.

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

section 1020B products has the meaning given by subsection 1020B(1).

secured creditor:

of a corporation—means a creditor of the corporation, if the debt owing to the creditor is secured by a security interest; and

of a sub-fund of a CCIV—means a secured creditor of the CCIV, if the debt owing to the creditor is, to any extent, a liability of the sub-fund.

secured party, in relation to a security interest, means:

(a) if the security interest is a PPSA security interest—a secured party within the meaning of the Personal Property Securities Act 2009; or

if the security interest is not a PPSA security interest, but consists of a charge, lien or pledge in relation to the property—a chargee (including a person in whose favour a charge is to be given or executed, whether on demand or otherwise, under an agreement), lienee or pledgee in relation to the charge, lien or pledge.

Note: Security interests are either PPSA security interests, or charges, liens or pledges: see security interest.

securities has the meaning given by section 92.

securities lending arrangement (except for the purposes of Chapter 8A) has the meaning given by section 1020AA.

security interest means:

a PPSA security interest; or

a charge, lien or pledge.

SEGC (short for Securities Exchanges Guarantee Corporation) has the meaning given by section 880B.

selective buy-back means a buy-back that is none of the following: a buy-back under an equal access scheme within the meaning of subsections 257B(2) and (3); a minimum holding buy-back; an on-market buy-back; an employee share buy-back.

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

a minimum holding buy-back;

an on-market buy-back;

an employee share buy-back.

selective reduction has the meaning given by subsection 256B(2).

self managed superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

senior manager:

Note: For the purposes of applying this definition to an MCI mutual entity, see subsection 258G(2).

in relation to a corporation—means a person (other than a director or secretary of the corporation) who:

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

has the capacity to affect significantly the corporation’s financial standing; and

in relation to a partnership—means a person (other than a partner) who:

makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the partnership; or

has the capacity to affect significantly the partnership’s financial standing; and

in relation to a trust—means a person (other than a trustee) who:

makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or affairs of the trust; or

has the capacity to affect significantly the financial standing of the trust; and

in relation to a joint venture—means a person (other than a director or secretary of a corporation participating in the joint venture) who:

makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the joint venture; or

has the capacity to affect significantly the financial standing of the joint venture.

sent, in relation to an electronic communication, has a meaning (except in Chapters 6 and 6A) affected by section 105A.

serious fraud means an offence involving fraud or dishonesty, being an offence: against an Australian law or any other law; and punishable by imprisonment for life or for a period, or maximum period, of at least 3 months. shareholder: in Part 2J.1 (share capital reductions and share buy-backs)—has a meaning affected by section 258G (about MCI mutual entities); and in Part 2J.3 (transactions affecting share capital)—has a meaning affected by section 260DA (about MCI mutual entities). shares: see number of shares.

against an Australian law or any other law; and

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

shareholder:

in Part 2J.1 (share capital reductions and share buy-backs)—has a meaning affected by section 258G (about MCI mutual entities); and

in Part 2J.3 (transactions affecting share capital)—has a meaning affected by section 260DA (about MCI mutual entities).

shares: see number of shares.

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

significant financial benchmark has the meaning given by section 908AC.

simple corporate bonds has the meaning given by section 713A.

simple corporate bonds depository interest means a beneficial interest in simple corporate bonds, where the interest is or was issued by a simple corporate bonds depository nominee (as a simple corporate bonds depository nominee).

simple corporate bonds depository nominee means a person who: issues to someone else one or more beneficial interests in simple corporate bonds that the person: owns legally; or would own beneficially, apart from the issue of those interests; or has a beneficial interest in; and does so with the agreement of the body that issued the bonds.

issues to someone else one or more beneficial interests in simple corporate bonds that the person:

owns legally; or

would own beneficially, apart from the issue of those interests; or

has a beneficial interest in; and

does so with the agreement of the body that issued the bonds.

simplified liquidation process has the meaning given by section 500AE.

sinking fund policy has the same meaning as in the Life Insurance Act 1995.

small company limited by guarantee has the meaning given by section 45B.

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

solvency resolution means a resolution by the directors of a company as to whether or not, in their opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.

solvent:

in relation to a person—has the meaning given by subsection 95A(1); and

in relation to a sub-fund of a CCIV—has the meaning given by subsection 1231A(2).

special resolution means:

in relation to a company—a resolution of the company that complies with section 250MA; or

in relation to a registered scheme, a CCIV or a sub-fund of a CCIV—a resolution of the members of the registered scheme that complies with subsection 253LA(1).

specified, in relation to a penalty for an offence, has the meaning given by section 1311E.

spill meeting has the meaning given by subsection 250V(1).

spill resolution has the meaning given by subsection 250V(1).

spouse of a person includes a de facto partner of the person within the meaning of the Acts Interpretation Act 1901.

staff member means a person who is a staff member for the purposes of the ASIC Act.

standard employer-sponsor has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

standard employer-sponsored fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

standard employer-sponsored member has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

standard margin lending facility has the meaning given by subsection 761EA(2).

standard opening hours means 0 am to 12 noon and 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: a court of a State, the Australian Capital Territory or the Northern Territory; or the Supreme Court of Norfolk Island.

State Family Court 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 of Advice means a Statement of Advice required by section 946A to be given in accordance with Subdivisions C and D of Division 3 of Part 7.7.

State or Territory court means:

a court of a State, the Australian Capital Territory or the Northern Territory; or

the Supreme Court of Norfolk Island.

State or Territory Supreme Court means any of the following: the Supreme Court of a State; the Supreme Court of the Australian Capital Territory; the Supreme Court of the Northern Territory; the Supreme Court of Norfolk Island.

the Supreme Court of a State;

the Supreme Court of the Australian Capital Territory;

the Supreme Court of the Northern Territory;

the Supreme Court of Norfolk Island.

statutory demand means:

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

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

statutory management has the meaning given by subsections 832C(3) and (4).

statutory manager of a body corporate means:

if the Reserve Bank is in control of the body corporate’s business under Part 7.3B—the Reserve Bank; and

each person appointed by the Reserve Bank to take control of a body corporate’s business under Part 7.3B.

Note: See section 836B for when there are 2 or more statutory managers of a body corporate.

statutory minimum means:

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

otherwise—$2,000.

statutory period means:

if a period longer than 21 days is prescribed—the prescribed period; or

otherwise—21 days.

sub-fund:

of a CCIV—has the meaning given by subsection 1222Q(1); and

in relation to a regulated CIS—has the same meaning as in the Passport Rules for this jurisdiction.

subject to an infringement notice under Part 9.4AB has a meaning given by section 1317DAN.

subscriber, in relation to an approved code of conduct:

means a person or entity that agrees, in a way required by the applicant for the code’s approval, to be bound by the code; and

if a person or entity no longer agrees to be bound by the code—includes the person or entity during the period that the person or entity did agree to be so bound.

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

sub-sector has the same meaning as in the Financial Services Compensation Scheme of Last Resort Levy Act 2023.

sub-sector levy cap has the same meaning as in the Financial Services Compensation Scheme of Last Resort Levy Act 2023.

subsidiary 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, listed registered scheme or listed notified foreign passport fund, if:

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

have relevant interests; and

would have a relevant interest but for subsection 609(6) (market traded options and derivatives), 609(7) (conditional agreements) or 609(9B) (securities escrowed under listing rules) or section 609B (securities subject to escrow agreement in connection with initial public offer etc.);

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

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

Note 1: For relevant interest, see section 608.

Note 2: Paragraph (b) does not apply in relation to a notified foreign passport fund.

substantial interest has a meaning affected by section 602A.

substantial part includes the whole of those activities.

substantive provision, of a sustainability report, means anything required to be included in the sustainability report under subsection 296A(1), other than the directors’ declaration mentioned in paragraph 296A(1)(e).

superannuation complaint has the meaning given by section 1053.

superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

superannuation guarantee charge has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.

superannuation guarantee shortfall has the same meaning as in the Superannuation Guarantee (Administration) Act 1992.

superannuation product means a superannuation interest within the meaning of the Superannuation Industry (Supervision) Act 1993.

superannuation provider means a person who is a superannuation provider within the meaning of: (a) the Superannuation Contributions Tax (Assessment and Collection) Act 1997; or (b) the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997.

(a) the Superannuation Contributions Tax (Assessment and Collection) Act 1997; or

(b) the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997.

superannuation trustee service that a person provides has the meaning given by section 766H.

superior court means the Federal Court of Australia, the Supreme Court of a State or Territory, the Federal Circuit and Family Court of Australia (Division 1) 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.

supervisor of a provisional relevant provider has the meaning given by subsection 921F(2).

Supplementary Financial Services Guide has the meaning given by section 943A.

Supplementary Product Disclosure Statement has the meaning given by section 1014A.

suspended, in relation to a CSF offer, has the meaning given by subsection 738N(6).

suspension period, in relation to a registration suspension order, has the meaning given by paragraph 921L(1)(b).

sustainability records includes documents and working papers needed to explain the methods, assumptions and evidence from which the substantive provisions of sustainability reports are made up.

sustainability report means an annual sustainability report required under section 292A.

sustainability standard means:

Note: Sections 296A, 296B and 296D deal with the contents of annual sustainability reports.

a standard in force under section 336A; or

a provision of such a standard as it so has effect.

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.

Takeovers Panel means the Takeovers Panel continued in existence by section 261 of the ASIC Act.

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

target market for a financial product means the class of retail clients described in the target market determination for the product under paragraph 994B(5)(b).

target market determination means a determination that: is made as required by section 994B; and meets the requirements of subsections 994B(5) and (8).

is made as required by section 994B; and

meets the requirements of subsections 994B(5) and (8).

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

taxation law has the same meaning as in the Income Tax Assessment Act 1997.

tax (financial) advice service has the same meaning as in the Tax Agent Services Act 2009.

Tax Practitioners Board means the Tax Practitioners Board established by section 60-5 of the Tax Agent Services Act 2009.

Territory:

means the following:

the Australian Capital Territory;

the Jervis Bay Territory;

the Northern Territory;

Norfolk Island;

the Territory of Christmas Island;

the Territory of Cocos (Keeling) Islands; and

when used in a geographical sense—includes the Territory’s coastal sea (if any).

Note: The term external Territory is defined in this subsection to be any Territory, other than a Territory covered by this definition, that is referred to in section 122 of the Constitution, where an Act makes provision for the government of the Territory as a Territory.

this Act includes the regulations, the Insolvency Practice Rules and the Passport Rules for this jurisdiction.

this jurisdiction means the geographical area that consists of: each referring State (including its coastal sea); and each Territory (including its coastal sea, if any); and (d) also, for the purposes of the application of a provision of Chapter 7 or an associated provision ( (but only to the extent provided for in that subsection).as defined in section 5)—any external Territory in which the provision applies because of subsection 5(9)

each referring State (including its coastal sea); and

each Territory (including its coastal sea, if any); and

(d) also, for the purposes of the application of a provision of Chapter 7 or an associated provision ( (but only to the extent provided for in that subsection).as defined in section 5)—any external Territory in which the provision applies because of subsection 5(9)

time-sharing scheme means a scheme, undertaking or enterprise, whether in Australia or elsewhere: 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 that is to operate for a period of not less than 3 years.

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

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

title document for a financial product has the meaning given by section 761A.

trade, in relation to financial products, in relation to a financial market, includes:

make or accept on that financial market an offer to dispose of, acquire or exchange the financial products; and

make on that financial market an offer or invitation that is intended, or may reasonably be expected, to result in the making or acceptance of an offer to dispose of, acquire or exchange the financial products.

trading day of a financial market means a day on which the market is open for trading in financial products.

traditional trustee company services has the meaning given by subsection 601RAC(1).

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

a security interest granted by the body in its property (including a security interest in the body’s PPSA retention of title property); and

a guarantee given by the body; and

a payment made by the body; and

an obligation incurred by the body; and

a release or waiver by the body; and

a loan to the body;

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

transfer of a financial product, in Divisions 3 (transfer of certain securities) and 4 (transfer of certain financial products) of Part 7.11, has the meaning given by section 1073B.

transfer determination has the meaning given by subsection 601WBA(1).

transferring company has the meaning given by subsection 601WBA(1).

transmission means a transmission, by means of electric or electromagnetic energy, of: sounds, including speech and music; or visual images; or 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 signals for the actuation or control of machinery or apparatus.

sounds, including speech and music; or

visual images; or

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

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

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

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.

transparency reporting auditor has the meaning given by subsection 332(1).

transparency reporting year has the meaning given by subsection 332(2).

Tribunal means the Administrative Review Tribunal.

triggering event has the meaning given by section 500AAA.

trustee:

(a) in relation to a superannuation entity—means the person who is the trustee of the entity for the purposes of the Superannuation Industry (Supervision) Act 1993; or

(b) in relation to the scheme provided for by the Australian Defence Force Cover Act 2015—means CSC (within the meaning of the Governance of Australian Government Superannuation Schemes Act 2011).

trustee company has the meaning given by subsection 601RAB(1).

trustee company provisions has the meaning given by section 601RAE.

ultimate holding company means a body corporate that: is a holding company of the first-mentioned body; and is itself a subsidiary of no body corporate. unacceptable control situation: in relation to a licensed trustee company or a proposed licensed trustee company—has the meaning given by section 601VAA; and in relation to a widely held market body—has the meaning given by subsection 850B(1); and in relation to a controlled Australian financial body—has the meaning given by section 852DB.

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

is itself a subsidiary of no body corporate.

unacceptable control situation:

in relation to a licensed trustee company or a proposed licensed trustee company—has the meaning given by section 601VAA; and

in relation to a widely held market body—has the meaning given by subsection 850B(1); and

in relation to a controlled Australian financial body—has the meaning given by section 852DB.

unclaimed property means:

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

any other property that a provision of this Act provides for ASIC to deal with under Part 9.7; or

property that vests in ASIC under section 1404; or

an accretion to, or substitution for, property that is unclaimed property because of any other application or applications of this definition.

uncommercial transaction has the meaning given by section 588FB.

underlying securities means:

in relation to an option over securities—those securities; and

in relation to scrip that is constituted by documents that are, or are documents of title to, securities—those securities.

undertaking 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.

unreasonable director-related transaction has the meaning given by section 588FDA.

unsecured, in relation to a debt, has in Part 5.7B a meaning affected by section 588D.

unsolicited contact has the meaning given by subsection 992A(4).

value includes amount.

virtual meeting technology means any technology that allows a person to participate in a meeting without being physically present at the meeting.

volume-based shelf-space fee has a meaning affected by section 964A.

voluntary transfer determination has the meaning given by subsection 601WBA(1).

voting interest, in relation to a managed investment scheme (including a notified foreign passport fund), 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:

on a proposal that affects rights attached to the interests;

on a proposal to wind up the scheme;

on a proposal for the disposal of the whole of the scheme or fund property, business and undertaking;

during the winding up of the scheme.

voting power in a body or managed investment scheme 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 right to vote while a dividend (or part of a dividend) in respect of the share is unpaid; a right to vote on a proposal to reduce the body’s share capital; a right to vote on a resolution to approve the terms of a buy-back agreement; a right to vote on a proposal that affects the rights attached to the share; a right to vote on a proposal to wind the body up; a right to vote on a proposal for the disposal of the whole of the body’s property, business and undertaking; a right to vote during the body’s winding up.

a right to vote while a dividend (or part of a dividend) in respect of the share is unpaid;

a right to vote on a proposal to reduce the body’s share capital;

a right to vote on a resolution to approve the terms of a buy-back agreement;

a right to vote on a proposal that affects the rights attached to the share;

a right to vote on a proposal to wind the body up;

a right to vote on a proposal for the disposal of the whole of the body’s property, business and undertaking;

a right to vote during the body’s winding up.

wages 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.

website disclosure information has the meaning given by section 943J.

wholesale CCIV has the meaning given by subsection 1222J(2).

wholesale client has the meaning given by section 761G.

wholly-owned subsidiary means a body corporate none of whose members is a person other than: the first-mentioned body; or a nominee of the first-mentioned body; or a subsidiary of the first-mentioned body, being a subsidiary none of whose members is a person other than: the first-mentioned body; or a nominee of the first-mentioned body; or a nominee of such a subsidiary.

the first-mentioned body; or

a nominee of the first-mentioned body; or

a subsidiary of the first-mentioned body, being a subsidiary none of whose members is a person other than:

the first-mentioned body; or

a nominee of the first-mentioned body; or

a nominee of such a subsidiary.

widely held market body has the meaning given by subsection 850A(2).

will includes a codicil and any other testamentary writing.

winding up by the Court includes winding up in insolvency.

winding up provisions has the meaning given by subsection 1237B(2).

within authority, in Division 6 (liability of financial services licensees for representatives) of Part 7.6, has a meaning given by subsections 917A(2) and (3).

wound up by the Court includes wound up in insolvency.

For the purposes of this Act, relationships (including the relationship of being family) are taken to include:

(a) relationships between de facto partners (within the meaning of the Acts Interpretation Act 1901); and

relationships of child and parent that arise:

if someone is an exnuptial or adoptive child of a person; or

(ii) if someone is the child of a person because of the definition of child in this Act; and

relationships traced through relationships referred to in paragraphs (a) and (b).

(1) An asset (except in relation to a sub-fund of a CCIV) is property, or a right, of any kind, and includes:

any legal or equitable estate or interest (whether present or future, vested or contingent, tangible or intangible, in real or personal property) of any kind; and

any chose in action; and

any right, interest or claim of any kind including rights, interests or claims in or in relation to property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing); and

(d) any CGT asset within the meaning of the Income Tax Assessment Act 1997.

(2) The assets of a financial services licensee are all the licensee’s assets (as defined in subsection (1)), whether or not the assets are used in connection with the licensee’s Australian financial services licence.

(3) An asset of a sub-fund of a CCIV has the meaning given by section 1233H.

(1) A director of a company or other body is:

a person who:

is appointed to the position of a director; or

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

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

they act in the position of a director; or

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

Note: Examples of provisions for which a person would not be a director because of paragraph (b) of this subsection include:

section 205B (notice to ASIC of change of address); and

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

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

(2) In directors (as defined in subsection (1)) is affected by section 410.Part 5.1 (arrangements and reconstructions), the meaning of

(3) For the purposes of Chapter 2M, a director of a registrable superannuation entity is:

(a) if the RSE licensee for the entity is a constitutional corporation (within the meaning of the Superannuation Industry (Supervision) Act 1993) or a body corporate—a director of the constitutional corporation or body corporate; or

if the RSE licensee for the entity is a group of individual trustees—each of those trustees.

(1) An officer of a corporation (other than a CCIV) is:

a director or secretary of the corporation; or

a person:

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

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

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

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

an administrator of the corporation; or

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

a restructuring practitioner for the corporation; or

a restructuring practitioner for a restructuring plan made by the corporation; or

a liquidator of the corporation; or

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

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

(2) An officer of a corporation that is a CCIV has the meaning given by section 1224B.

(3) Subject to subsection (4), an officer of an entity that is neither an individual nor a corporation is:

if the entity is a partnership—a partner in the partnership; or

if the entity is an unincorporated association—an office holder of the unincorporated association; or

in any case—a person:

who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or

who has the capacity to affect significantly the entity’s financial standing.

(4) For the purposes of Chapter 2M, an officer of a registrable superannuation entity is:

(a) if the RSE licensee for the entity is a constitutional corporation (within the meaning of the Superannuation Industry (Supervision) Act 1993) or a body corporate—an officer of the constitutional corporation or body corporate; or

if the RSE licensee for the entity is a group of individual trustees:

each of those trustees; or

a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or

a person who has the capacity to affect significantly the entity’s financial standing.

(1) A rights issue is an offer of a body’s securities for issue in respect of which the following conditions are met:

the securities being offered for issue are in a particular class;

either:

the offer is made to every person who holds securities in that class to issue them, or their assignee, with the percentage of the securities to be issued that is the same as the percentage of the securities in that class that they hold before the offer; or

if the conditions in subsection (3) are met—such an offer is made to every person with a registered address in Australia or New Zealand who holds securities in that class;

the terms of each offer are the same.

(2) A rights issue is an offer of interests in a registered scheme or notified foreign passport fund for issue in respect of which the following conditions are met:

the interests being offered for issue are in a particular class;

either:

the offer is made to every person who holds interests in that class to issue them, or their assignee, with the percentage of the interests to be issued that is the same as the percentage of the interests in that class that they hold before the offer; or

if the conditions in subsection (3) are met—such an offer is made to every person with a registered address in Australia or New Zealand who holds interests in that class;

the terms of each offer are the same.

The conditions in this subsection are met if:

(a) the offering entity decides that it is unreasonable to offer securities or interests (as the case requires) for issue to persons (the non-residents) with a registered address in a place outside Australia or New Zealand, after taking into account the following matters:

the number of non-residents, in that place, to whom offers would otherwise be made;

the number and value of the securities or interests that would otherwise be offered for issue;

the cost of complying with the laws, and any requirements of any regulatory authority, of the place where the securities or interests would otherwise be offered for issue; and

the offering entity:

sends details of the offer to each non-resident in that place; and

advises each non-resident in that place that the non-resident will not be offered the securities or interests; and

if the invitation to apply for, or the right to be issued with, the securities or interests is able to be assigned—the offering entity:

advises each non-resident in that place that a nominee will be appointed to sell the invitation or right that would otherwise have been offered to the non-resident; and

advises each non-resident that the nominee will send the non-resident any net proceeds from the sale of that invitation or those rights; and

appoints a nominee in Australia to carry out the obligations referred to in subparagraphs (i) and (ii).

(3A) For the purposes of subsection (3), offering entity means the following:

in relation to an offer of securities in a body that is not a registered scheme or a notified foreign passport fund—the body;

in relation to an offer of interests in a registered scheme—the responsible entity of the scheme;

in relation to an offer of interests in a notified foreign passport fund—the operator of the fund.

For the purposes of this section, a reference to an offer of securities includes a reference to an invitation to apply for the issue of securities.

(1) A remuneration recommendation is:

a recommendation about either or both of the following:

how much the remuneration should be;

what elements the remuneration should have;

for one or more members of the key management personnel for a company; or

a recommendation or advice about a matter or of a kind prescribed by the regulations.

(2) None of the following is a remuneration recommendation (even if it would otherwise be covered by subsection (1)):

advice about the operation of the law (including tax law);

advice about the operation of accounting principles (for example, about how options should be valued);

advice about the operation of actuarial principles and practice;

the provision of facts;

the provision of information of a general nature relevant to all employees of the company;

a recommendation, or advice or information, of a kind prescribed by the regulations.

Subsection (2) does not limit the things that are not remuneration recommendations, nor does it mean that something specified in that subsection would otherwise be a remuneration recommendation within the meaning of subsection (1).

ASIC may by writing declare that subsection (1) does not apply to a specified recommendation or specified advice, but may do so only if ASIC is satisfied that it would be unreasonable in the circumstances for the advice or recommendation to be a remuneration recommendation. The declaration has effect accordingly. The declaration is not a legislative instrument.

(1) A declared financial market is a financial market declared under subsection (2).

ASIC may, by legislative instrument, declare a specified financial market for the purposes of subsection (1).

ASIC must not make a declaration under subsection (2) unless the Minister has approved it in writing.

(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.

A person is not an associate of the primary person except as provided in this Division.

Nothing in this Division limits the generality of anything else in it.

If the primary person is a body corporate, the associate reference includes a reference to:

a director or secretary of the body; and

a related body corporate; and

a director or secretary of a related body corporate.

(1) Subject to subsection 16(1), but despite anything else in this Part, this section applies for the purposes of interpreting a reference to an associate (the associate reference), in relation to a designated body, if:

the reference occurs in a provision of Chapter 6, 6A, 6B or 6C; or

the reference occurs in a provision outside those Chapters that relates to any of the following matters:

the extent, or restriction, of a power to exercise, or to control the exercise of, the votes attached to voting shares in the designated body;

the primary person’s voting power in the designated body;

relevant interests in securities in the designated body;

a substantial holding in the designated body;

a takeover bid for securities in the designated body;

the compulsory acquisition, or compulsory buy-out, of securities in the designated body.

(2) For the purposes of the application of the associate reference in relation to the designated body, a person (the second person) is an associate of the primary person if, and only if, one or more of the following paragraphs applies:

the primary person is a body corporate and the second person is:

a body corporate the primary person controls; or

a body corporate that controls the primary person; or

a body corporate that is controlled by an entity that controls the primary person;

subject to subsection (2A), the second person is a person with whom the primary person has, or proposes to enter into, a relevant agreement for the purpose of controlling or influencing the composition of the designated body’s board or the conduct of the designated body’s affairs;

subject to subsection (2A), the second person is a person with whom the primary person is acting, or proposing to act, in concert in relation to the designated body’s affairs.

For the purposes of paragraphs (2)(b) and (c), the second person is not an associate of the primary person in relation to a designated body merely because:

they have entered or propose to enter into a relevant agreement; and

one of them has or will have a right under the relevant agreement (whether the right is enforceable presently or in the future and whether or not on the fulfilment of a condition) to dispose of securities in the designated body or control the exercise of a power to dispose of the securities.

For the purposes of the application of this section in relation to a designated body that is a managed investment scheme:

a reference to controlling or influencing the composition of the designated body’s board is taken to be a reference to controlling or influencing:

if the scheme is a registered scheme—whether a particular company becomes or remains the scheme’s responsible entity; or

if the scheme is not a registered scheme—whether a particular person is appointed, or remains appointed, to the office (by whatever name it is known) in relation to the scheme that corresponds most closely to the office of responsible entity of a registered scheme; and

a reference to voting shares in the designated body is taken to be a reference to voting interests in the managed investment scheme.

In relation to a matter relating to securities in a designated body, a person may be an associate of the body and the body may be an associate of the person.

In this section:

designated body means:

a body; or

a managed investment scheme.

If the associate reference occurs in Chapter 7, it includes a reference to:

a person in partnership with whom the primary person carries on a financial services business; and

subject to subsection 16(2), a person who is a partner of the primary person otherwise than because of carrying on a financial services business in partnership with the primary person; and

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

a director of a body corporate of which the primary person is also a director and that carries on a financial services business; and

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 financial services business.

The associate reference includes a reference to:

a person in concert with whom the primary person is acting, or proposes to act; and

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

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.

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.

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:

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;

one, a client, gives specific instructions to the other, whose ordinary business includes dealing in financial products, to acquire financial products on the client’s behalf in the ordinary course of that business;

one had sent, or proposes to send, to the other an offer under a takeover bid for shares held by the other;

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.

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), 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.

A reference to an associate, in relation to an entity (other than a body corporate) that carries on a financial services business, is, if 2 or more persons constitute the entity, a reference to an associate of any of those persons.

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:

in any case—otherwise than for profit; or

in the case of a body corporate—otherwise than for the profit of the members or corporators of the body.

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.

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.

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.

A reference to a body corporate carrying on business in Australia, or in a State or Territory, includes a reference to the body:

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

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.

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:

is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute; or

holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or

maintains a bank account; or

effects a sale through an independent contractor; or

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

creates evidence of a debt, or creates a security interest in property, including PPSA retention of title property of the body; or

secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts; or

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

invests any of its funds or holds any property.

In working out whether someone carries on a financial services business disregard paragraph (3)(e).

Note: See also section 911D for when a financial services business is taken to be carried on in this jurisdiction.

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 needs to be limited by shares or be an unlimited company with a share capital (see subsection 112(1)).

Note 3: A proprietary company needs to:

have no more than 50 shareholders, although employee shareholders and shareholders connected with CSF offers do not count for this purpose; and

not do anything to require disclosure to investors under Chapter 6D (except in limited circumstances);

(see section 113).

Small proprietary company

A proprietary company is a small proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

the consolidated revenue for the financial year of the company and the entities it controls (if any) is less than $25 million, or any other amount prescribed by the regulations for the purposes of this paragraph;

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 $12.5 million, or any other amount prescribed by the regulations for the purposes of this paragraph;

the company and the entities it controls (if any) have fewer than 50, or any other number prescribed by the regulations for the purposes of this paragraph, 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

A proprietary company is a large proprietary company for a financial year if it satisfies at least 2 of the following paragraphs:

the consolidated revenue for the financial year of the company and the entities it controls (if any) is $25 million, or any other amount prescribed by the regulations for the purposes of paragraph (2)(a), or more;

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 $12.5 million, or any other amount prescribed by the regulations for the purposes of paragraph (2)(b), or more;

the company and the entities it controls (if any) have 50, or any other number prescribed by the regulations for the purposes of paragraph (2)(c), or more employees at the end of the financial year.

When a company controls an entity

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)(b) (even if the standards do not otherwise apply to the company).

Counting employees

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

Consolidated 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).

(1) A company is a small company limited by guarantee in a particular financial year if:

it is a company limited by guarantee for the whole of the financial year; and

(b) it is not a deductible gift recipient (within the meaning of the Income Tax Assessment Act 1997) at any time during the financial year; and

either:

where the company is not required by the accounting standards to be included in consolidated financial statements—the revenue of the company for the financial year is less than the threshold amount; or

where the company is required by the accounting standards to be included in consolidated financial statements—the consolidated revenue of the consolidated entity for the financial year is less than the threshold amount; and

it is not one of the following:

(i) a Commonwealth company for the purposes of the Public Governance, Performance and Accountability Act 2013;

a subsidiary of a Commonwealth company for the purposes of that Act;

a subsidiary of a corporate Commonwealth entity for the purposes of that Act; and

it has not been a transferring financial institution of a State or Territory within the meaning of clause 1 of Schedule 4 to this Act; and

(f) it is not a company that is permitted to use the expression building society, credit society or credit union under section 66 of the Banking Act 1959 at any time during the financial year.

(2) The threshold amount, for the purposes of subparagraphs (1)(c)(i) and (ii), is $250,000, or any other amount prescribed by the regulations for the purposes of this subsection.

Revenue and consolidated revenue 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).

A body corporate (in this section called the first body) is a subsidiary of another body corporate if, and only if:

the other body:

controls the composition of the first body’s board; or

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

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

the first body is a subsidiary of a subsidiary of the other body.

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 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

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.

(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.

Any shares held, or power exercisable, by the other body in a fiduciary capacity are treated as not held or exercisable by it.

Subject to subsections (4) and (5), any shares held, or power exercisable:

by a person as a nominee for the other body (except where the other body is concerned only in a fiduciary capacity); or

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.

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.

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:

the ordinary business of the other body or that subsidiary, as the case may be, includes lending money; and

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.

Any shares in the first body that are MCIs, and any powers exercisable by a person by virtue of such shares, are to be disregarded.

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.

Where a body corporate is:

a holding company of another body corporate; or

a subsidiary of another body corporate; or

a subsidiary of a holding company of another body corporate;

the first-mentioned body and the other body are related to each other.

(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

This subsection is satisfied if the associate and the principal are related bodies corporate.

This subsection is satisfied if the principal controls the associate.

This subsection is satisfied if:

the associate controls the principal; and

the operations, resources or affairs of the principal are material to the associate.

This subsection is satisfied if:

the associate has a qualifying investment (see subsection (8)) in the principal; and

the associate has significant influence over the principal; and

the interest is material to the associate.

This subsection is satisfied if:

the principal has a qualifying investment (see subsection (8)) in the associate; and

the principal has significant influence over the associate; and

the interest is material to the principal.

This subsection is satisfied if:

(a) an entity (the third entity) controls both the principal and the associate; and

the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

has an asset that is an investment in the second entity; or

has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.

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.

In determining whether the first entity has this capacity:

the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

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).

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.

If the first entity:

has the capacity to influence decisions about the second entity’s financial and operating policies; and

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.

Definition

(1) Property is PPSA retention of title property (short for Personal Property Securities Act retention of title property) of a corporation if:

the property is personal property; and

the property is used or occupied by, or is in the possession of, the corporation; and

the corporation does not have title to the property; and

(d) a PPSA security interest is attached to the property, within the meaning of the Personal Property Securities Act 2009; and

the corporation is the grantor in relation to the PPSA security interest, within the meaning of that Act.

Examples: The following personal property is PPSA retention of title property if a PPSA security interest attaches to the property by virtue of the transaction concerned, and the grantor is a corporation:

(a) property that is the subject of an agreement to sell subject to retention of title, or a hire purchase agreement, that secures the payment or performance of an obligation (see subsection 12(2) of the Personal Property Securities Act 2009);

(b) property that is the subject of a lease, or a consignment agreement, that secures the payment or performance of an obligation (see subsection 12(2) of the Personal Property Securities Act 2009);

(c) goods that are the subject of a commercial consignment (see subsection 12(3) of the Personal Property Securities Act 2009);

(d) goods that are leased or bailed under a PPS lease (see subsection 12(3) of the Personal Property Securities Act 2009).

References to property of a corporation

A reference in this Act to the property of a corporation does not include a reference to any PPSA retention of title property of the corporation, unless provided otherwise expressly or by necessary implication.

Note: See also the definition of property in section 9.

References to property of a sub-fund of a CCIV

A reference in a provision of this Act to property of a sub-fund of a CCIV (including a substituted reference provided for by Part 8B.6) is a reference to something that is:

property of the CCIV (within the meaning of the provision); and

an asset of the sub-fund of the CCIV.

Note: For assets of a sub-fund of a CCIV, see section 1233H.

(1) A company is a mutual entity if:

the company is registered under this Act; and

the company’s constitution provides that a person has no more than one vote at a general meeting of the company for each capacity in which the person is a member of the company.

To avoid doubt:

the requirement in paragraph (1)(b) does not fail to be satisfied merely because the company’s constitution provides that:

2 or more persons may together be joint members of the company; and

those persons each have one vote at a general meeting of the company; and

that requirement does not fail to be satisfied merely because the company’s constitution provides that:

a person may vote as proxy or representative at a general meeting of the company; and

as a result of voting as a proxy or representative, the person may have more than one vote at a general meeting of the company.

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.

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 (other than a CCIV) include:

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

in the case of a body corporate (not being a licensed trustee company or the Public Trustee of a State or Territory) 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

the internal management and proceedings of the body; and

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:

a receiver, or a receiver and manager, is in possession of, or has control over, property of the body; or

the body is under administration; or

a deed of company arrangement executed by the body has not yet terminated; or

the body is under restructuring; or

a restructuring plan made by the body has not yet terminated; or

a compromise or arrangement made between the body and any other person or persons is being administered; or

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 restructuring practitioner for the body, of a restructuring practitioner for such a restructuring plan, of a person administering such a compromise or arrangement or of a liquidator or provisional liquidator of the body; and

the ownership of shares in, debentures of, and interests in a managed investment scheme made available by, the body; and

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

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

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

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

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.

For the purposes of the provisions referred to in subsection (3), the affairs of a body corporate that is a CCIV include anything that would be included in the affairs of a body corporate under section 53.

In applying paragraph 53(d) to the CCIV:

disregard subparagraphs (ii) and (iia); and

treat the reference in subparagraph (iv) to the body as instead being a reference to a sub-fund of the CCIV; and

treat the reference to a liquidator or provisional liquidator of the body as instead being a reference to a liquidator or provisional liquidator of a sub-fund of the CCIV.

The provisions for subsection (1) are the following:

a provision referred to in section 53;

a provision prescribed for the purposes of section 53;

section 1222 (about requirements for registration as a CCIV);

section 1224F (about who can be the director of a CCIV);

section 1224J (about corporate director must operate the CCIV);

section 1237V (about Court order imposing liability on unlicensed person operating CCIV);

section 1241C (about extra kinds of financial services relating to CCIVs);

section 1241E (about when conduct does not constitute providing a custodial or depository service in relation to a CCIV);

section 1241F (about Australian financial services licences to conduct the affairs of a CCIV);

section 1241L (about financial services disclosure does not apply to conducting the affairs of CCIVs);

a provision of this Act prescribed by the regulations for the purposes of this paragraph.

A body corporate’s business affairs include (without limitation):

any of the body’s affairs (including anything that is included in the body’s affairs because of section 53 or 53AAA); and

matters concerned with ascertaining the corporations with which the body is or has been connected.

A natural person’s business affairs include (without limitation):

the person’s examinable operations and examinable assets and liabilities; and

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

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 Bankruptcy Act 1966 because of an authority given by the person under section 188 of that Act; orDivision 2 of Part X of the

(iv) a personal insolvency agreement 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

without limiting the generality of paragraph (b), any conduct of the trustee of such a bankrupt estate or of such a personal insolvency agreement or a person acting under such an authority; and

matters concerned with ascertaining the corporations with which the person is or has been connected.

A partnership’s business affairs include (without limitation):

the partnership’s promotion, formation, membership, control, examinable operations and examinable assets and liabilities; and

the partnership’s management and proceedings; and

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

matters concerned with ascertaining the corporations with which the partnership is or has been connected.

A trust’s business affairs include (without limitation):

the creation of the trust; and

matters arising under, or otherwise relating to, the terms of the trust; and

the appointment and removal of a trustee of the trust; and

the business, trading, transactions and dealings of the trustee of the trust; and

the profits, income and receipts of the trustee of the trust; and

the losses, outgoings and expenditure of the trustee of the trust; and

the trust property, including transactions and dealings in, and the income arising from, the trust property; and

the liabilities of the trustee of the trust; and

the management of the trust; and

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

matters concerned with ascertaining the corporations with which the trust is or has been connected.

The shares in a body corporate, if not divided into 2 or more classes, constitute a class.

Note: A CCIV must have a minimum of one class of shares per sub-fund: see section 1230A.

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.

(1) Subject to this section, in this Act, corporation includes:

a company; and

any body corporate (whether incorporated in this jurisdiction or elsewhere); and

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 office holder of the body duly appointed for that purpose.

(2) Neither of the following is a corporation:

an exempt public authority;

a corporation sole.

(3) To avoid doubt, an Aboriginal and Torres Strait Islander corporation is taken to be a corporation for the purposes of this Act.

Note: Various provisions of this Act that generally apply to corporations do not apply to Aboriginal and Torres Strait Islander corporations because of express provisions to that effect: see section 190B, subsection 197(5), section 206HB and subsections 599(2), 1309(6), 1318(5) and 1335(3).

Subject to subsection (2), in this Act:

court means any court.

Court means any of the following courts: the Federal Court; the Supreme Court of a State or Territory; the Federal Circuit and Family Court of Australia (Division 1); (d) a court to which Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.section 41 of the

the Federal Court;

the Supreme Court of a State or Territory;

the Federal Circuit and Family Court of Australia (Division 1);

(d) a court to which Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.section 41 of the

(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 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.6A include the applicability of limits on the jurisdictional competence of courts.

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.

Nothing in subsection (2) affects the operation of any provision of this Act that:

expressly requires a particular act to be done in this jurisdiction; or

expressly or by implication permits a particular act to be done outside Australia.

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.

Administrator

(1) In this Act, a declaration of relevant relationships, in relation to an administrator of a company under administration, means a written declaration:

stating whether any of the following:

the administrator;

if the administrator’s firm (if any) is a partnership—a partner in that partnership;

if the administrator’s firm (if any) is a body corporate—that body corporate or an associate of that body corporate;

has, or has had within the preceding 24 months, a relationship with:

the company; or

an associate of the company; or

a former liquidator, or former provisional liquidator, of the company; or

a former restructuring practitioner for the company, or a restructuring plan of the company; or

a person who is entitled to enforce a security interest in the whole, or substantially the whole, of the company’s property (including any PPSA retention of title property); and

if so, stating the administrator’s reasons for believing that none of the relevant relationships result in the administrator having a conflict of interest or duty.

Restructuring practitioner

(1A) In this Act, a declaration of relevant relationships, in relation to a restructuring practitioner for a company under restructuring, means a written declaration:

stating whether any of the following:

the restructuring practitioner;

if the restructuring practitioner’s firm (if any) is a partnership—a partner in that partnership;

if the restructuring practitioner’s firm (if any) is a body corporate—that body corporate or an associate of that body corporate;

has, or has had within the preceding 24 months, a relationship with:

the company; or

an associate of the company; or

a former liquidator, or former provisional liquidator, of the company; or

a person who is entitled to enforce a security interest in the whole, or substantially the whole, of the company’s property (including any PPSA retention of title property); and

if so, stating the restructuring practitioner’s reasons for believing that none of the relevant relationships result in the restructuring practitioner having a conflict of interest or duty.

Liquidator

(2) In this Act, a declaration of relevant relationships, in relation to a liquidator of a company, means a written declaration:

stating whether any of the following:

the liquidator;

if the liquidator’s firm (if any) is a partnership—a partner in that partnership;

if the liquidator’s firm (if any) is a body corporate—that body corporate or an associate of that body corporate;

has, or has had within the preceding 24 months, a relationship with:

the company; or

an associate of the company; or

a former liquidator, or former provisional liquidator, of the company; or

a former administrator of the company; or

a former administrator of a deed of company arrangement executed by the company; or

a former restructuring practitioner for the company; or

a former restructuring practitioner for a restructuring plan made by the company; and

if so, stating the liquidator’s reasons for believing that none of the relevant relationships result in the liquidator having a conflict of interest or duty.

Except in Chapters 2E, 8A and 8B, a reference to an entity:

is a reference to a natural person, a body corporate (other than an exempt public authority), a partnership or a trust; and

includes, in the case of a trust, a reference to the trustee of the trust.

Body corporate

A body corporate is connected with a corporation if, and only if, the corporation:

can control, or influence materially, the body’s activities or internal affairs; or

is a member of the body; or

is in a position to cast, or to control the casting of, a vote at a general meeting of the body; or

has power to dispose of, or to exercise control over the disposal of, a share in the body; or

is financially interested in the body’s success or failure or apparent success or failure; or

is owed a debt by the body; or

is engaged by the body under a contract for services; or

acts as agent for the body in any transaction or dealing.

Natural person

A natural person is connected with a corporation if, and only if, the corporation:

is a trustee of a trust under which the person is capable of benefiting; or

is engaged by the person under a contract for services; or

acts as agent for the person in any transaction or dealing; or

is an attorney of the person under a power of attorney; or

has appointed the person as the corporation’s attorney under a power of attorney; or

is given financial, business or legal advice by the person in the performance of the functions attaching to the person’s professional capacity.

Partnership

A partnership is connected with a corporation if, and only if, the corporation:

is a partner in the partnership; or

can control, or influence materially, the partnership’s activities or internal affairs; or

is financially interested in the partnership’s success or failure or apparent success or failure; or

is a creditor of the partnership; or

is engaged by the partnership under a contract for services; or

acts as agent for the partnership in any transaction or dealing.

Trust

A trust is connected with a corporation if, and only if, the corporation:

is the settlor, or one of the settlors, of the trust; or

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

is a trustee of the trust; or

can control, or influence materially, the activities of the trust; or

is capable of benefiting under the trust; or

is a creditor of the trustee of the trust; or

is engaged by the trustee of the trust under a contract for services; or

acts as agent for the trustee of the trust in any transaction or dealing.

ASIC may declare a body corporate to be an authorised dealer in the short term money market by notice published in the Gazette.

A body corporate is an exempt body corporate of a State or Territory if, and only if, it:

is not a company; and

is incorporated by or under a law of the State or Territory.

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.

An Australian court finds a person guilty of an offence if, and only if:

the court convicts the person of the offence; or

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.

A reference to a body corporate or other person included in an official list of a body corporate is a reference to:

a body corporate or other person whose name is included in that official list; or

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.

A person is involved in a contravention if, and only if, the person:

has aided, abetted, counselled or procured the contravention; or

has induced, whether by threats or promises or otherwise, the contravention; or

has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or

has conspired with others to effect the contravention.

The Jervis Bay Territory is taken to be part of the Australian Capital Territory.

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:

is an offer or invitation to enter into an underwriting agreement; or

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

is made or issued to existing members or debenture holders of a corporation and relates to shares in, or debentures of, that corporation; or

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.

A thing that is in a person’s custody or under a person’s control is in the person’s possession.

(1) Subject to this section, public document, in relation to a body, means:

an instrument of, or purporting to be signed, issued or published by or on behalf of, the body that:

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

is signed, issued or published under or for the purposes of this Act, the ASIC Act or any other Australian law; or

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

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.

A thing is not a public document of a body if it:

is applied, or is intended or required to be applied:

to goods; or

to a package, label, reel or thing in or with which goods are, or are to be, supplied; and

is so applied, or is intended or required to be so applied, for a purpose connected with the supply of the goods.

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 covering, stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper; or

any other container or thing in which goods are, or are to be, packed.

(1) For the purposes of this Act, a qualified accountant is a person covered by a declaration in force under subsection (2).

ASIC may, in writing, declare that all members of a specified professional body, or all persons in a specified class of members of a specified professional body, are qualified accountants for the purposes of this Act.

ASIC may, in writing, vary or revoke a declaration made under subsection (2).

Where this Act provides that a person has qualified privilege in respect of an act, matter or thing, the person:

has qualified privilege in proceedings for defamation; or

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.

In subsection (1):

malice includes ill will to the person concerned or any other improper motive.

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.

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.

For the purposes of this Act, the following table sets out the meaning of relation-back day in relation to a winding up of a company or Part 5.7 body.

(1) Subject to this section, securities means:

debentures, stocks or bonds issued or proposed to be issued by a government; or

shares in, or debentures of, a body; or

interests in a managed investment scheme; or

units of such shares;

but does not include:

a derivative (as defined in section 761D), other than an option to acquire by way of transfer a security covered by paragraph (a), (b), (c) or (d); or

an excluded security.

Note: A derivative does not include an option to acquire a security by way of issue (see the combined effect of paragraph 761D(3)(c), paragraph 764A(1)(a) and paragraph (5)(d) of this section).

(2) The expression securities, when used in relation to a body, means:

shares in the body; or

debentures of the body; or

interests in a managed investment scheme made available by the body; or

units of such shares;

but does not include:

a derivative (as defined in section 761D), other than an option to acquire by way of transfer a security covered by paragraph (a), (b), (c) or (d); or

an excluded security.

Note: A derivative does not include an option to acquire a security by way of issue (see the note to subsection (1)).

(2A) In securities means:Part 1.2A,

shares in a body; or

debentures of a body; or

interests in a registered scheme or a notified foreign passport fund; or

legal or equitable rights or interests in:

shares; or

debentures; or

interests in a registered scheme or a notified foreign passport fund; or

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 derivative (as defined in section 761D), other than an option to acquire by way of transfer a security covered by paragraph (a), (b), (c) or (d); or

a market traded option.

Note 1: A derivative does not include an option to acquire a security by way of issue (see the note to subsection (1)).

Note 2: Section 9 defines body.

In Chapters 6 to 6CA (inclusive) and Part 8B.7:

securities means:

shares in a body; or

debentures of a body; or

interests in a registered scheme; or

when used in Chapter 6C—an interest in a listed notified foreign passport fund; or

legal or equitable rights or interests in:

shares; or

debentures; or

interests in a registered scheme or interests in a fund mentioned in paragraph (d); or

options to acquire (whether by way of issue or transfer) a security covered by paragraph (a), (b), (c), (d) or (e).

It does not cover:

a derivative (as defined in section 761D), other than an option to acquire by way of transfer a security covered by paragraph (a), (b), (c), (d) or (e); or

a market traded option; or

when used outside Chapter 6C—an interest in a notified foreign passport fund.

Note 1: A derivative does not include an option to acquire a security by way of issue (see the note to subsection (1)).

Note 2: Section 9 defines body.

(4) In Chapter 6D, securities has the meaning given by section 700.

Note: However, in Chapter 6D, securities does not include securities in a CCIV: see section 1240G.

(5) In Chapter 7 (except security means:Part 7.11),

a share in a body; or

a debenture of a body; or

a legal or equitable right or interest in a security covered by paragraph (a) or (b); or

an option to acquire, by way of issue, a security covered by paragraph (a), (b) or (c); or

a right (whether existing or future and whether contingent or not) to acquire, by way of issue, the following under a rights issue:

a security covered by paragraph (a), (b), (c) or (d);

a managed investment product;

a foreign passport fund product;

an interest or right covered by paragraph 764A(ba); or

a CGS depository interest; or

a simple corporate bonds depository interest;

but does not include an excluded security or a foreign passport fund product.

(6) In security means:Part 7.11,

a security as defined in subsection (5); or

a managed investment product; or

a foreign passport fund product.

(7) In Chapter 8, securities means:

a share in a body; or

a debenture of a body; or

an interest in a managed investment scheme; or

a legal or equitable right or interest in a security or interest covered by paragraph (a), (b) or (c); or

an option to acquire, by way of issue, an interest or right covered by paragraph (a), (b), (c) or (d).

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.

A person who is not solvent is insolvent.

Note: A company is taken to be insolvent if the company proposes a restructuring plan to creditors (see subsection 455A(2)).

Where a provision of this Act requires a notice to be lodged of, or information in an application to specify:

the address of an office, or of a proposed office, of a body corporate or other person; or

a change in the situation of an office of a body corporate or other person;

the notice:

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

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.

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.

Nothing in this Act affects the operation of any provision of any law:

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

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.

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.

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.

(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.

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.

This section has effect except so far as this Act otherwise provides.

An act, transaction, agreement, instrument, matter or thing is not invalid merely because of:

a contravention of section 115, 208, 209, 601CA or 601CD; or

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.

Note: Section 1101H provides that a failure to comply with requirements of Chapter 7 generally does not affect the validity or enforceability of any transaction, contract or other arrangement.

In this section:

invalid includes void, voidable and unenforceable.

Nothing in this section limits the generality of anything else in it.

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.

A period of time referred to in the Corporations legislation, or an instrument made under the Corporations legislation, dating from a given day, act or event, is to be calculated exclusive of such day or of the day of such act or event.

Without limiting subsection (1), 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; and

the other day, or the day of the other act or event, is not to be counted.

If:

the Corporations legislation, or an instrument made under the Corporations legislation, requires or allows a thing to be done within a specified period; and

the last day of the period is not a business day in the place where the thing must or may be done;

then the thing may instead be done on the next day that is a business day in that place.

This section applies in relation to an electronic communication unless otherwise agreed between the originator and the addressee of the electronic communication.

(2) An electronic communication is sent:

when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or

if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator—when the electronic communication is received by the addressee.

Note 1: Paragraph (b) would apply to a case where the parties exchange electronic communications through the same information system.

Note 2: The meaning of sent in Chapters 6 and 6A is not affected by this section: see the definition of sent in section 9.

Subsection (2) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been sent under section 105B.

(4) An electronic communication is received when the electronic communication becomes capable of being retrieved by the addressee at the addressee’s nominated electronic address.

It is to be assumed that an electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s nominated electronic address.

Subsection (4) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 105B.

This section applies in relation to an electronic communication unless otherwise agreed between the originator and the addressee of the electronic communication.

An electronic communication is taken to have been sent:

if the addressee is a company or registered scheme and the originator is a member of the company or registered scheme—from the address of the originator as contained on the register of members of the company or registered scheme at the time the communication is sent; and

if the originator has a registered office and paragraph (a) does not apply—from the registered office of the originator; and

if the originator has a principal place of business in Australia and neither paragraph (a) nor (b) applies—the address of the originator’s principal place of business in Australia; and

otherwise:

from the most recent physical address nominated by the originator to the addressee; or

if the originator has not nominated a physical address as mentioned in subparagraph (i)—from the originator’s usual residential address in Australia.

An electronic communication is taken to have been received:

if the originator is a company or registered scheme and the addressee is a member of the company or registered scheme—at the address of the addressee as contained on the register of members of the company or registered scheme at the time the communication is received; and

if the addressee has a registered office and paragraph (a) does not apply—at the registered office of the addressee; and

if the addressee has a principal place of business in Australia and neither paragraph (a) nor (b) applies—the address of the addressee’s principal place of business in Australia; and

otherwise:

at the most recent physical address nominated by the addressee to the originator; or

if the addressee has not nominated a physical address as mentioned in subparagraph (i)—at the addressee’s usual residential address in Australia.

For the purposes of subsection 163(3B), section 178B and paragraph 601BC(2)(lc), if 2 or more members in the top 20 members of a class of shares each hold the same number of shares, details of each of those members must be included in any notice given in relation to those provisions.

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.

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:

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

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.

For the purposes of any law, a document may be served on a company by:

leaving it at, or posting it to, the company’s registered office; or

delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or

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

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; or

if a restructuring practitioner for the company has been appointed—leaving it at, or posting it to, the address of the restructuring practitioner in the most recent notice of that address lodged with ASIC.

For the purposes of any law, a document may be served on a director or company secretary 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:

in their capacity as a director or company secretary; or

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 Service and Execution of Process Act 1992.section 9 of the

This section does not affect:

any other provision of this Act, or any provision of another law, that permits; or

the power of a court to authorise;

a document to be served in a different way.

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”.

Signing of documents under this Act

This Division applies to a document (including a deed) required or permitted to be signed by a person under this Act.

Note 1: A document is any record of information: see the definition of document in section 2B of the Acts Interpretation Act 1901.

Note 2: This Division provides that a person may sign a document in physical form or electronic form: see subsection 110A(1).

Signing of documents by or on behalf of company

Without limiting subsection (1), this Division applies to a document (including a deed) to be signed by a person:

exercising the powers of a company under section 126 (making of contracts and execution of documents by an agent); or

under section 127 (execution of documents by a company).

Other ways of signing documents not limited

This Division does not limit the ways in which a person may sign a document (including a deed).

Note: For example, a company’s constitution may set out ways in which a document (including a deed) may be executed or signed in addition to the ways a document (including a deed) may be executed in accordance with sections 126 and 127 or signed in accordance with this Division.

A person may sign a document to which this Division applies:

by signing a physical form of the document by hand; or

by signing an electronic form of the document using electronic means;

if the method of signing satisfies subsection (2).

Note: A document (including a deed) may be executed by or on behalf of a company without the use of paper, parchment or vellum: see subsections 126(6) and 127(3A).

A method of signing satisfies this subsection if:

the method identifies the person and indicates the person’s intention in respect of the information recorded in the document; and

the method was either:

as reliable as appropriate for the purpose for which the information was recorded, in light of all the circumstances, including any relevant agreement; or

proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence.

What information the intention must cover

For the purposes of paragraph (2)(a), the person is not required to indicate an intention in relation to:

any material identifying another person signing the document or indicating another person’s intention in respect of the information recorded; or

the signature of another person signing the document; or

(c) if a common seal is fixed to the document—the seal; or

(d) any immaterial information in a form of the document generated for the purposes of signing and which arises in the normal course of communication, storage or display.

Note: This subsection allows minor differences that arise from the way a document is signed to be disregarded. For example, a person can sign to witness the fixing of a common seal to a document, and it is not necessary for the signed document to include the common seal (as long as a method is used to indicate that the person observed the fixing of the seal, as required by paragraph 127(2A)(c)).

Avoidance of doubt

(4) To avoid doubt, this section does not require:

a person to sign the same form of the document as another person; or

a person to sign the same page of the document as another person; or

a person to use the same method to sign the document as another person; or

all the information recorded in the document to be included in the form of the document signed by a person as mentioned in paragraph (1)(a) or (b).

Note: For example, a company may execute a document by one director signing a physical form of the document by hand, and another director signing an electronic form of the document by electronic means.

Persons signing in different capacities

For the purposes of this section, a person who is to sign a document in more than one capacity:

is treated as a different person in each such capacity they sign the document; and

may sign the document in some or all of those capacities by signing the document once, if the document:

requires or permits the person to do so; and

states the capacities in which the person is signing the document.

Example 1: If a signature block in a document requires or permits a person to sign once as the sole director and sole company secretary of a company, the person may sign the document as the sole director and sole company secretary by signing that signature block.

Example 2: If a signature block in a document requires or permits a person to sign once on behalf of 2 companies as an agent for both those companies, the person may sign the document as an agent for both those companies by signing that signature block.

Example 3: A person who is to sign a document in their capacity as the director of one company and their capacity as the company secretary of another company must sign the document twice if:

one signature block in the document requires or permits the person to sign as the director of the first company; and

another signature block in the document requires or permits the person to sign as the company secretary of the second company.

If:

under this Act, the signature of a person is required or permitted on a document; and

the person signs the document in accordance with section 110A; and

the person or another person submits the document for lodgement; and

the signature complies with any requirements relating to that lodgement under this Act or an instrument made under this Act;

ASIC or the Registrar (as the case requires) must not refuse to receive or register the document on the basis that the document has not been signed.

Note: This section does not prevent ASIC or the Registrar from refusing to receive or register the document on any other basis. For example, if the lodgement requirements mentioned in paragraph (d) (such as those under Chapter 2P) are not met, ASIC or the Registrar may refuse to receive or register the document.

Sending documents

(1) This Division applies to any document covered by subsection (3) or (4) that is required or permitted under this Act to be sent by a person or entity (the sender) to another person or entity (the recipient).

A reference in subsection (1) to an entity includes a reference to a disclosing entity.

Covered documents

(3) This subsection covers a document that is required or permitted be sent by the sender to the recipient under:

this Chapter; or

Chapters 2A to 2M; or

Chapters 5 to 5D; or

Chapter 6, 6A, 6B or 6C; or

Division 3 of Part 7.7A; or

Chapter 8A or 8B; or

Chapter 9; or

Schedule 2; or

any other provision of this Act, to the extent that it relates to the provisions mentioned in paragraphs (a) to (g).

This subsection covers a document that is in a class of documents specified in regulations made for the purposes of this subsection.

However, this Division does not apply to a document that is required or permitted under this Act to be sent by or to ASIC, the Registrar or the Takeovers Panel.

References to sending documents

(6) This Division applies to a requirement or permission to send a document, whether the expression send, give, serve or dispatch, or any other expression, is used.

(7) To avoid doubt, for the purposes of this Division, a document is not a document that is required or permitted under this Act to be sent merely because section 109X, 601CX or 1200R provides that the document may be served in a particular way.

The document may be sent to the recipient:

by sending the document in a physical form; or

if subsection (2) is satisfied—by sending the recipient sufficient information in physical form to allow the recipient to access the document electronically; or

if subsection (2) is satisfied—by sending the document in electronic form by means of an electronic communication; or

if subsection (2) is satisfied—by sending the recipient sufficient information in electronic form, by means of an electronic communication, to allow the recipient to access the document electronically; or

if subsection (2) is satisfied and the document is covered by subsection (3)—by making the document readily available in electronic form on a website.

Note: A requirement for the sender to send a document to which this Division applies is met if the document is sent in accordance with this section and in accordance with any timing requirements under this Act.

This subsection is satisfied if, at the time the document is sent, it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference.

Documents that may be sent by publication on a website

This subsection covers a document that:

is a report mentioned in section 314 or 314A (which deal with annual financial reporting to members); or

is in a class of documents specified in regulations made for the purpose of this paragraph.

Other ways of sending documents not limited

Subsection (1) does not limit the ways in which a person may send a document.

Note: For example, a company’s constitution may set out other ways in which a document may be sent.

Address for sending document

Paragraphs (1)(a) and (b) apply only if:

where the recipient is covered by subsection (7)—the sending of the document mentioned in paragraph (1)(a), or the sending of the information mentioned in paragraph (1)(b), is to an address known to the sender because the recipient is a member or holder of securities mentioned in whichever of paragraphs (7)(a) to (f) applies; or

the recipient is not covered by subsection (7).

Paragraphs (1)(c) and (d) apply only if:

where the recipient is covered by subsection (7):

the sending of the document mentioned in paragraph (1)(c), or the sending of the information mentioned in paragraph (1)(d), is to an address known to the sender because the recipient is a member or holder of securities mentioned in whichever of paragraphs (7)(a) to (f) applies; and

that address is a nominated electronic address of the recipient; or

where the recipient is not covered by subsection (7)—the sending of the document mentioned in paragraph (1)(c), or the sending of the information mentioned in paragraph (1)(d), is to a nominated electronic address of the recipient.

For the purposes of subsections (5) and (6), this subsection covers the recipient if:

the recipient is a member of the sender; or

where the sender is the responsible entity of a registered scheme—the recipient is a member of the scheme; or

where the sender is the corporate director of a CCIV—the recipient is a member of the CCIV; or

where the sender is a disclosing entity mentioned in subsection 111AC(2)—the recipient is a member of the managed investment scheme mentioned in that subsection; or

where the sender is the operator of a notified foreign passport fund—the recipient is an Australian member of the fund; or

where the sender is the bidder under a takeover bid—the recipient is a holder of securities in the target for the bid.

This section applies if:

where the sender is a company—the recipient is a member of the company; or

where the sender is the responsible entity of a registered scheme—the recipient is a member of the scheme; or

where the sender is the corporate director of a CCIV—the recipient is a member of the CCIV; or

where the sender is a disclosing entity mentioned in subsection 111AC(1)—the recipient is a member of the disclosing entity; or

where the sender is a disclosing entity mentioned in subsection 111AC(2)—the recipient is a member of the managed investment scheme mentioned in that subsection; or

where the sender is the operator of a notified foreign passport fund—the recipient is an Australian member of the fund; or

where the sender is the bidder under a takeover bid—the recipient is a holder of securities in the target for the bid; or

the recipient is of a kind specified in regulations made for the purposes of this paragraph.

Election to be sent documents in physical form or electronic form

The recipient may elect to be sent documents to which this Division applies:

in physical form; or

in electronic form;

by notifying the sender (whether or not in writing) of the election.

Note 1: Section 110F requires the sender to comply with an election to be sent documents to which this Division applies in a particular form.

Note 2: Regardless of any election under this section, if the sender is required under this Act to send a document to which this Division applies to the recipient, that requirement is met if the document is sent in accordance with section 110D and in accordance with any timing requirements under this Act.

An election under subsection (2) may be made in relation to:

all documents to which this Division applies; or

a specified class or classes of documents to which this Division applies.

Note: The documents in relation to which an election may be made include, for example, documents required or permitted to be sent under this Act in relation to a takeover bid: see section 648CB.

Election not to be sent documents

(4) The recipient may elect not to be sent documents covered by subsection (5) by notifying the sender (whether or not in writing) of the election.

This subsection covers the following documents:

reports mentioned in section 314 or 314A (which deal with annual financial reporting to members);

documents to which this Division applies that are prescribed by the regulations for the purposes of this paragraph.

An election under subsection (4) may be made in relation to:

all of the documents covered by subsection (5); or

a specified class or classes of documents covered by subsection (5).

When an election is in force

An election under subsection (2) or (4) is in force in relation to those documents during the period:

beginning on:

unless subparagraph (ii) or (iii) applies—the first business day after the day on which the sender receives notice (whether or not in writing) of the election from the recipient; or

unless subparagraph (iii) applies, where the recipient, in notifying the sender of the election, specifies a later day—the first business day after that later day; or

if regulations made for the purposes of this subparagraph specify another day—that other day; and

ending on:

unless subparagraph (ii) or (iii) applies—the first business day after the day on which the sender receives notice (whether or not in writing) from the recipient withdrawing the election; or

unless subparagraph (iii) applies, where the recipient, in notifying the sender of the withdrawal, specifies a later day—the first business day after that later day; or

if regulations made for the purposes of this subparagraph specify another day—that other day.

However, an election under subsection (2) to be sent documents to which this Division applies in physical form is not in force in relation to a document if:

the sender is required or permitted under this Act to send the document by a particular day; and

the sender receives notice of the election from the recipient on or after the day that is 30 days immediately before the day mentioned in paragraph (a) of this subsection.

This section applies if:

an election by the recipient to be sent documents by the sender in physical form or electronic form is in force in relation to a document under section 110E; and

the sender sends the document to the recipient in a manner that does not comply with the election (otherwise than by way of giving it to the recipient personally); and

no determination is in force under section 1345 allowing the document to be sent by the sender in that manner (see subsections 1345(2) and (3A)).

The sender contravenes this subsection if the sender does not take reasonable steps to send the document in a manner that complies with the election:

unless paragraph (b) applies—before, or within a reasonable time after, sending the document as mentioned in paragraph (1)(b); or

if the sender is required or permitted under this Act to send the document to the recipient by a particular time—by that time.

A person commits an offence of strict liability if the person contravenes subsection (2).

For the purposes of this section, the following manners of sending the document comply with the election:

for an election to be sent documents in physical form—the manner mentioned in paragraph 110D(1)(a);

for an election to be sent documents in electronic form—a manner mentioned in paragraph 110D(1)(c) or (d).

No current address for sending documents in elected manner

Subsection (2) does not apply if:

the sender reasonably believes that none of the addresses (including any electronic addresses) for the recipient that are:

known to the sender; and

where the recipient is covered by subsection (4B)—so known because the recipient is a member or holder of securities mentioned in whichever of paragraphs (4B)(a) to (f) applies;

are a current address for the recipient to be sent the document in a manner that complies with the election; and

the sender sends the document to the recipient in a manner that does not comply with the election, as mentioned in paragraph (1)(b), other than in the manner mentioned in paragraph 110D(1)(e); and

if the document is a report mentioned in section 314A (annual reporting by notified foreign passport funds)—the requirement (if applicable) in paragraph 314A(4)(b) (about sending report in elected language) is satisfied.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4A), see subsection 13.3(3) of the Criminal Code.

For the purposes of subparagraph (4A)(a)(ii), this subsection covers the recipient if:

the recipient is a member of the sender; or

where the sender is the responsible entity of a registered scheme—the recipient is a member of the scheme; or

where the sender is the corporate director of a CCIV—the recipient is a member of the CCIV; or

where the sender is a disclosing entity mentioned in subsection 111AC(2)—the recipient is a member of the managed investment scheme mentioned in that subsection; or

where the sender is the operator of a notified foreign passport fund—the recipient is an Australian member of the fund; or

where the sender is the bidder under a takeover bid—the recipient is a holder of securities in the target for the bid.

Effect of contravention

A contravention of subsection (2) by the sender does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

Note: In particular, the validity of the sending of the document as mentioned in paragraph (1)(b) is not affected. Regardless of any contravention of subsection (2), if the sender is required under another provision of this Act to send a document to which this Division applies, that requirement is met if the document is sent in accordance with section 110D and in accordance with any timing requirements under that other provision.

This section applies if:

an election by the recipient not to be sent documents from the sender is in force in relation to a document under section 110E; and

the sender sends the document to the recipient, other than in the manner mentioned in paragraph 110D(1)(e).

The sender contravenes this subsection if the sender did not take reasonable steps to avoid sending the document as mentioned in paragraph (1)(b).

A person commits an offence of strict liability if the person contravenes subsection (2).

This section applies if:

the sender is required or permitted to send a document to which this Division applies to the recipient in accordance with a provision of this Act (other than this Division); and

an election under section 110E not to be sent documents is in force in relation to the document.

For the purposes of the provision mentioned in paragraph (1)(a) of this section:

the sender is taken to send the document, as required or permitted in accordance with that provision, at the later of:

the time the recipient’s election mentioned in paragraph (1)(b) came into force; and

the earliest time at which the sender could have sent the document in accordance with the provision mentioned in paragraph (1)(a); and

the recipient is taken to receive the document when it is taken to be sent under paragraph (a) of this subsection.

This section applies if:

the recipient is covered by subsection (3); and

the recipient requests (whether or not in writing) the sender to send a particular document to which this Division applies to the recipient in physical form, or in electronic form; and

either:

the sender is required or permitted under this Act to send the document to the recipient by a particular time; or

if subparagraph (i) does not apply—the sender has sent the document to the recipient in a manner that would not comply with the request; and

the request is made:

if subparagraph (c)(i) applies—within a reasonable time before the particular time mentioned in that subparagraph; or

if subparagraph (c)(ii) applies—within a reasonable time after the sender sends the document as mentioned in that subparagraph; and

at the time the request is made:

the sender has not yet sent the document to the recipient in a manner that would comply with the request; and

no determination is in force under section 1345 allowing the document to be sent by the sender in a manner that would not comply with the request (see subsections 1345(2) and (3A)).

The sender must take reasonable steps to send the document to the recipient in a manner that complies with the request by the later of the following:

3 business days after the day on which the sender received the request;

if the sender is required or permitted under this Act to send the document by a particular time—that time.

Note: A determination under section 1345 may extend the time within which a document is required to be sent by the sender to the recipient.

The recipient is covered by this subsection if:

where the sender is a company—the recipient is a member of the company; or

where the sender is the responsible entity of a registered scheme—the recipient is a member of the scheme; or

where the sender is the corporate director of a CCIV—the recipient is a member of the CCIV; or

where the sender is a disclosing entity mentioned in subsection 111AC(1)—the recipient is a member of the disclosing entity; or

where the sender is a disclosing entity mentioned in subsection 111AC(2)—the recipient is a member of the managed investment scheme mentioned in that subsection; or

where the sender is the operator of a notified foreign passport fund—the recipient is an Australian member of the fund; or

where the sender is the bidder under a takeover bid—the recipient is a holder of securities in the target for the bid; or

the recipient is of a kind specified in regulations made for the purposes of this paragraph.

For the purposes of subparagraph (1)(e)(i) and subsection (2), a physical form of the document is taken to have been sent to the recipient:

when the document is posted; or

if the document is sent by courier—when the document is given to the courier.

An offence based on subsection (2) is an offence of strict liability.

For the purposes of this section, the following manners of sending the document comply with the request:

for a request to be sent the document in physical form—the manner mentioned in paragraph 110D(1)(a);

for a request to be sent the document in electronic form—a manner mentioned in paragraph 110D(1)(c) or (d).

Sender taken to send document

This section applies if:

the sender is required or permitted to send a document to which this Division applies to the recipient under a provision of this Act; and

the conditions in subsection (3) are satisfied; and

any of the following apply:

where the sender is a company—the recipient is a member of the company;

where the sender is the responsible entity of a registered scheme—the recipient is a member of the scheme;

where the sender is the corporate director of a CCIV—the recipient is a member of the CCIV;

where the sender is a disclosing entity mentioned in subsection 111AC(1)—the recipient is a member of the disclosing entity;

where the sender is a disclosing entity mentioned in subsection 111AC(2)—the recipient is a member of the managed investment scheme mentioned in that subsection; and

the sender sends the document in accordance with the provision mentioned in paragraph (a) to one or more other members of a kind mentioned in whichever of subparagraphs (c)(i) to (v) applies.

For the purposes of the provision mentioned in paragraph (1)(a):

the sender is taken to send the document, as required or permitted in accordance with that provision, at the later of:

the time all of the conditions in paragraphs (3)(a), (b) and (c) are first satisfied; and

the time the sender first sends the document to one or more other members as mentioned in paragraph (1)(d); and

the recipient is taken to receive the document when it is taken to be sent under paragraph (a) of this subsection.

Conditions for relief

For the purposes of paragraph (1)(b), the conditions are that:

the sender has received notification in relation to each of the following addresses that indicates it is not a current address for the recipient:

if the sender is a company, responsible entity of a registered scheme or corporate director of a CCIV—the recipient’s address in the company, scheme or CCIV’s register of members;

(ii) any other addresses for the recipient, including any electronic addresses for receiving electronic communications, known to the sender because the recipient is a member mentioned in whichever of subparagraphs (1)(c)(i) to (v) applies; and

the sender reasonably believes that none of those addresses are a current address for the recipient; and

the sender is unable, after taking reasonable steps, to ascertain a current address for the recipient.

For the purposes of paragraph (3)(c), the sender has not taken reasonable steps unless the sender has attempted to communicate with the recipient using all contact details for the recipient that are known to the sender because the recipient is a member mentioned in whichever of subparagraphs (1)(c)(i) to (v) applies.

Sender must send notice for relief to continue to apply after period of 18 months

Subsection (6) applies if the period of 18 months starting on the day all of the conditions in paragraphs (3)(a), (b) and (c) are first satisfied has ended.

Subsection (2) does not apply to the sending of a document mentioned in paragraph (1)(d) if, within the last 12 months of that period, the sender did not take reasonable steps to advise the recipient that:

the sending of documents to which this Division applies to the recipient by the sender is suspended; and

although that sending has been suspended, it will be resumed if the recipient provides a current address (which may be an electronic address) for being sent those documents.

A public company must:

send the members of the company, at least once in each financial year, a notice setting out the matters mentioned in subsection (4); or

make such a notice readily available on a website.

The responsible entity of a registered scheme must:

send the members of the scheme, at least once in each financial year, a notice setting out the matters mentioned in subsection (4); or

make such a notice readily available on a website.

A CCIV must:

send the members of the CCIV, at least once in each financial year, a notice setting out the matters mentioned in subsection (4); or

make such a notice readily available on a website.

A disclosing entity must:

send the members mentioned in subsection (3A) in relation to the disclosing entity, at least once in each financial year, a notice setting out the matters mentioned in subsection (4); or

make such a notice readily available on a website.

For the purposes of paragraph (3)(a), the members are:

for a disclosing entity mentioned in subsection 111AC(1)—the members of the disclosing entity; and

for a disclosing entity mentioned in subsection 111AC(2)—the members of the managed investment scheme mentioned in that subsection.

The operator of a notified foreign passport fund must:

send the Australian members of the fund, at least once in each financial year, a notice setting out the matters mentioned in subsection (4); or

make such a notice readily available on a website.

For the purposes of subsections (1), (2), (2A) and (3), the matters required to be set out in the notice are:

members’ rights to elect under section 110E, and to request under section 110J, to be sent documents in physical form; and

members’ rights to elect under section 110E, and to request under section 110J, to be sent documents in electronic form; and

members’ rights to elect under section 110E not to be sent documents covered by subsection 110E(5); and

for the operator of a notified foreign passport fund—Australian members’ rights to elect to be sent reports mentioned in section 314A in English or in an official language of the home economy of the fund (see subsections 314A(3) and (4)).

An offence based on subsection (1), (2), (2A) or (3) is an offence of strict liability.

The object of this Part is:

(a) to define disclosing entity and other key terms relevant to disclosing entities (this is done in Division 2); and

to outline the significance for this Act of being a disclosing entity (this is done in Division 3); and

to provide for exemptions from, and modifications of, the special requirements imposed by this Act in relation to disclosing entities (this is done in Division 4).

(1) If any securities of a body (except interests in a managed investment scheme) are ED securities, the body is a disclosing entity for the purposes of this Act.

(2) If any interests in a managed investment scheme are ED securities, the undertaking to which the interests relate is a disclosing entity for the purposes of this Act.

(1) Securities of a body are ED securities (short for “enhanced disclosure securities”) for the purposes of this Act if, and only if:

they are ED securities under section 111AE, 111AF, 111AFA, 111AFB, 111AG or 111AI; and

they are not declared under section 111AJ not to be ED securities.

For the purposes of sections 111AE, 111AF, 111AG and 111AI, a class of shares or debentures is taken to include units of shares or debentures in that class.

If:

a body corporate (other than a notified foreign passport fund) is, with its agreement, consent or acquiescence, included in the official list of a declared financial market; and

the market’s listing rules (according to their terms) apply to the body in relation to a class (which may be some or all) of securities issued by the body;

securities issued by the body in that class are ED securities, and that market is a listing market in relation to that body.

If:

an undertaking to which interests in a registered scheme relates is, with the agreement, consent or acquiescence of the responsible entity, included in the official list of a declared financial market; and

the market’s listing rules (according to their terms) apply to the undertaking in relation to a class (which may be some or all) of managed investment products that relate to the scheme;

managed investment products in that class that relate to the scheme are ED securities, and that market is a listing market in relation to the undertaking.

If:

(a) an undertaking to which interests in a notified foreign passport fund relate is, with the agreement, consent or acquiescence of the operator of the fund, included in the official list of a declared financial market; and

the market’s listing rules (according to their terms) apply to the fund in relation to a class (which may be some or all) of foreign passport fund products that relate to the fund;

foreign passport fund products in that class that relate to the fund are ED securities, and that market is a listing market in relation to the fund.

If:

subsection (1) does not apply to securities issued by a CCIV; and

a sub-fund of the CCIV is, with the agreement, consent or acquiescence of the CCIV, included in the official list of a declared financial market; and

the market’s listing rules (according to their terms) apply to the sub-fund in relation to a class of securities issued by the CCIV that are referable to the sub-fund;

securities in that class that are referable to the sub-fund are ED securities, and that market is a listing market in relation to the CCIV.

Note: Subsection (1) may apply to a CCIV instead of this subsection if the CCIV, and not a sub-fund, is included in the official list of a declared financial market.

Subsections (1) and (1A) do not apply to securities of a body if:

the body is a public authority of the Commonwealth or an instrumentality or agency of the Crown in right of the Commonwealth; and

the only securities issued by the body that would otherwise be ED securities because of subsection (1) or (1A) are debentures; and

both the repayment of principal, and the payment of interest, in respect of those debentures is guaranteed by the Commonwealth.

Subsections (1) and (1A) do not apply to securities of a body that is:

a public authority of a State or Territory; or

an instrumentality or agency of the Crown in right of a State or Territory.

(1) Securities (except debentures or managed investment products) in a class of securities of a body are ED securities if:

a disclosure document in relation to securities in that class has been lodged with ASIC under Chapter 6D; and

securities in that class have been issued pursuant to the disclosure document; and

after an issue of securities in that class pursuant to the disclosure document, 100 or more persons held securities in that class; and

securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (c).

(2) Securities (except debentures and managed investment products) in a class of securities of a body are ED securities if securities in that class have been issued under a recognised offer and the offeror’s records indicate that 100 or more people who reside in this jurisdiction have held securities in that class (whether or not as a result of the recognised offer) at all times since the issue.

(3) Securities (except debentures) in a class of securities of a CCIV are ED securities if 100 or more people hold securities in that class as a result of offers that gave rise to obligations to give Product Disclosure Statements (whether or not all in the same terms) under Chapter 7 (as that Chapter applies to those securities under Division 4 of Part 8B.7).

(1) Managed investment products in a class of managed investment products issued by a body are ED securities if 100 or more people hold managed investment products in that class as a result of offers that gave rise to obligations to give Product Disclosure Statements (whether or not all in the same terms) under Chapter 7.

(2) Interests in a class of interests in a managed investment scheme issued by a body are ED securities if interests in that class have been issued under a recognised offer and the offeror’s records indicate that 100 or more people who reside in this jurisdiction have held interests in that class (whether or not as a result of the recognised offer) at all times since the issue.

Foreign passport fund products in a class of foreign passport fund products issued by a body are ED securities if 100 or more people who reside in this jurisdiction hold foreign passport fund products in that class.

(1) Securities (except debentures) in a class of securities of a body are ED securities if:

securities in that class have been issued by the body as consideration for offers under an off-market bid; and

after an issue of securities in that class under the off-market bid, 100 or more persons held securities in that class; and

securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (b).

(2) Securities in a class of securities of a body are ED securities if:

securities in that class have been issued as consideration for the acquisition or cancellation of securities of another body pursuant to a compromise or arrangement under Part 5.1; and

securities in that class, or those or any other securities of the other body, were ED securities immediately before securities in that class were first issued pursuant to the compromise or arrangement; and

after an issue of securities in that class pursuant to the compromise or arrangement, 100 or more persons held securities in that class; and

securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (c).

For the purposes of sections 111AF, 111AFA and 111AG, a person holds securities if, and only if:

the person is registered as the holder of the securities in a register under section 169, 170, 171 or 601CZB; or

the person is entitled to be so registered.

For the purposes of section 111AFB, a person holds securities in a notified foreign passport fund if, and only if:

the person is registered as the holder of securities in the fund on a register maintained by the operator of the fund under the law of the home economy for the fund; or

the person is entitled to be so registered.

For the purposes of sections 111AF, 111AFA, 111AFB and 111AG, joint holders of securities count as one person.

Debentures of a borrower are ED securities if:

section 283AA requires the borrower to appoint a trustee; or

section 283AA does not apply to the borrower only because the offer of the debentures to which section 283AA would otherwise have applied is a recognised offer.

The regulations may declare specified securities of bodies not to be ED securities.

Regulations in force for the purposes of subsection (1) have effect accordingly, despite anything else in this Division.

For the purposes of this Act, ED securities because of which (having regard to section 111AC) a disclosing entity is such an entity are ED securities of the entity.

A disclosing entity is a listed disclosing entity if all or any ED securities of the entity are quoted ED securities.

For the purposes of this Act, ED securities are quoted ED securities if they are ED securities because of section 111AE.

This Division outlines the significance for this Act of being a disclosing entity.

There are special requirements in Part 2D.8 for remuneration recommendations in relation to key management personnel for disclosing entities that are companies.

A disclosing entity incorporated or formed in Australia has to prepare financial statements and reports for half-years as well as full financial years. These requirements are set out in Chapter 2M.

A disclosing entity is subject to the continuous disclosure requirements of sections 674, 674A, 675 and 675A.

Section 713 applies (subject to certain qualifications) to prospectuses for quoted ED securities of disclosing entities. The section’s requirements for the content of prospectuses are less comprehensive than those that apply to other prospectuses under section 710.

Obligations that apply to disclosing entities can be taken into account in deciding what information should be included in a Product Disclosure Statement—see section 1013FA and paragraph 1013F(2)(d).

(1) The disclosing entity provisions are the provisions of the following:

Chapter 2M as it applies to disclosing entities;

sections 674, 674A, 675 and 675A;

Division 4 of Part 8B.4 as it applies to disclosing entities;

Division 2 of Part 8B.7 as it applies to disclosing entities.

A reference in subsection (1) to a Part, Division or section includes a reference to regulations in force for the purposes of the Part, Division or section.

The regulations may exempt specified persons from all or specified disclosing entity provisions:

either generally or as otherwise specified; and

either unconditionally or subject to specified conditions.

Without limiting subsection (1), an exemption may relate to specified securities.

ASIC may, by writing, exempt specified persons from all or specified disclosing entity provisions:

either generally or as otherwise specified; and

either unconditionally or subject to specified conditions.

Without limiting subsection (1), an exemption may relate to specified securities.

(3) ASIC must cause a copy of an exemption to be published in the Gazette.

A person must not intentionally or recklessly contravene a condition to which an exemption under section 111AS or 111AT is subject.

If a person contravenes such a condition, the Court may, on the application of ASIC, order the person to comply with the condition.

The regulations may make modifications of all or specified disclosing entity provisions.

Without limiting subsection (1), a modification may relate to specified securities.

Exemptions and modifications under this Division have effect accordingly.

Nothing in this Division limits, or is limited by, any other exemption or modification power (for example, section 340, 340A, 341, 341A or 741).

Name is available unless identical or unacceptable

A name is available to a company unless the name is:

identical (under rules set out in the regulations) to a name that is reserved or registered under this Act for another body; or

identical (under rules set out in the regulations) to a name that is held or registered on the Business Names Register in respect of another individual or body who is not the person applying to have the name; or

unacceptable for registration under the regulations.

Minister may consent to a name being available to a company

The Minister may consent in writing to a name being available to a company even if the name is:

identical to a name that is reserved or registered under this Act for another body; or

unacceptable for registration under the regulations.

The Minister’s consent may be given subject to conditions.

Note: If the company breaches a condition, ASIC may direct it to change its name under section 158.

The regulations may specify that a particular unacceptable name is available to a company if:

a specified public authority, or an instrumentality or agency of the Crown in right of the Commonwealth, a State or an internal Territory has consented to the company using or assuming the name; or

the company is otherwise permitted to use or assume the name by or under:

an Act of the Commonwealth, a State or an internal Territory; or

a specified provision of an Act of the Commonwealth, a State or an internal Territory.

The consent of the authority, instrumentality or agency may be given subject to conditions.

Note: If the consent is withdrawn, the company ceases to be permitted or the company breaches a condition, ASIC may direct it to change its name under section 158.

Company may use available name or ACN

A company may have as its name:

an available name; or

the expression “Australian Company Number” followed by the company’s ACN.

The name must also include the words required by subsection (2) or (3).

Limited companies

A limited public company must have the word “Limited” at the end of its name unless section 150 or 151 applies. A limited proprietary company must have the words “Proprietary Limited” at the end of its name.

Unlimited proprietary companies

An unlimited proprietary company must have the word “Proprietary” at the end of its name.

No liability companies

A no liability company must have the words “No Liability” at the end of its name.

Public companies with “Proprietary” included in their name

A public company must not include the word “Proprietary” (or an abbreviation of it) in its name unless:

it was a public company before 1 July 1998; and

the word “Proprietary” (or an abbreviation of it) was included in its name before 1 July 1998.

An offence based on subsection (2), (3), (4) or (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

The abbreviations set out in the following table may be used:

instead of words that this Act requires to be part of a company’s name or to be included in a document or on a company’s common seal; and

instead of words that are part of a company’s name; and

with or without full stops.

If a company’s name includes any of these abbreviations, the word corresponding to the abbreviation may be used instead.

Name

A company is not required to have the word “Limited” at the end of its name if:

(a) the company is registered under the Australian Charities and Not-for-profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25-5(5) of that Act (charity); and

the company’s constitution:

prohibits the company paying fees to its directors; and

requires the directors to approve all other payments the company makes to directors.

A company that, in accordance with subsection (1), does not have “Limited” at the end of its name must notify ASIC as soon as practicable if:

the company ceases to be registered as mentioned in paragraph (1)(a); or

any of the prohibitions or requirements mentioned in paragraph (1)(b) are not complied with or the company’s constitution is modified to remove any of those prohibitions or requirements.

An offence based on subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Paragraph 157(1)(a) (company must pass special resolution to change name) does not apply to a change of the name of a company to omit the word “Limited” in accordance with this section.

Name may be stated without “Limited”

If a company:

has the word “Limited” at the end of its name; but

under subsection (1), is not required to do so;

the word “Limited” may be omitted anywhere that the name of the company is required to be used (including on the company’s common seal).

A licence that:

allowed a company to omit “Limited” from its name; and

was in force immediately before 1 July 1998; and

was in force immediately before the commencement of this section;

continues in force subject to subsection (3).

The company must notify ASIC as soon as practicable if it:

breaches a condition of the licence; or

pursues objects or purposes that would have prevented it being granted the licence; or

applies its profits or other income to promote objects or purposes that would have prevented it being granted the licence; or

pays a dividend to its members; or

modifies its constitution to allow it to do anything set out in paragraphs (a) to (d).

(2AA) If:

a company holds a licence that is in force under this section; and

either the licence or the company’s constitution requires a modification to the constitution to have previously been submitted to, and approved by:

the Minister; or

another Minister of the Commonwealth, a State or a Territory; or

an officer, instrumentality or agency of the Commonwealth, a State or a Territory;

then the licence or constitution (as the case requires) is taken instead to require the company to notify ASIC as soon as practicable of the modification.

An offence based on subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

ASIC may revoke the company’s licence if:

the company does anything set out in paragraphs (2)(a) to (e); or

the company fails to notify ASIC in accordance with subsection (2AA).

A person may lodge an application in the prescribed form with ASIC to reserve a name for a company. If the name is available, ASIC must reserve it.

Note: For available names, see section 147.

The reservation lasts for 2 months from the date when the application was lodged. An applicant may ask ASIC in writing for an extension of the reservation during a period that the name is reserved, and ASIC may extend the reservation for 2 months.

ASIC must cancel a reservation if the applicant asks ASIC in writing to do so.

A company must set out its name on all its public documents and negotiable instruments.

Subject to sections 154 and 155, if the company’s ACN is not used in its name, the company must also set out with its name, or with 1 of the references to its name, either:

the expression “Australian Company Number” followed by the company’s ACN; or

if the last 9 digits of the company’s ABN are the same, and in the same order, as the last 9 digits of its ACN—the words “Australian Business Number” followed by the company’s ABN.

If the company’s name appears on 2 or more pages of the document or instrument, this must be done on the first of those pages.

Note 1: If a company has a common seal, its name and ACN or ABN must be set out on the seal (see section 123).

Note 2: A public company must display its name at its registered office. Every company must display its name at places at which the company carries on business and that are open to the public (see section 144).

Note 3: Section 149 provides that “ACN” is an acceptable abbreviation of “Australian Company Number”, and that “ABN” is an acceptable abbreviation of “Australian Business Number”.

Note 4: In any case where the company’s ACN would be used, the company’s ABN may be used instead if section 1344 is satisfied.

An offence based on subsection (1) or (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

A company does not have to set out the expression “Australian Company Number” followed by its ACN on a receipt (for example, a cash register receipt) that sets out information recorded in the machine that produced the receipt.

The regulations may exempt a specified company, or a class of companies, from the requirement in subsection 153(2) to set out information on its public documents and negotiable instruments. The exemption may relate to specified documents or instruments, or a class of documents or instruments.

A person must not carry on business in this jurisdiction under a name or title that:

has the words “Limited” or “No Liability” (or an abbreviation of those words) at the end; or

includes the word “Proprietary” (or an abbreviation of it).

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Subsection (1) does not apply to the extent that the person is allowed or required to carry on business in this jurisdiction under the name or title under a law of the Commonwealth or a law of a State or Territory in this jurisdiction.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3), see subsection 13.3(3) of the Criminal Code.

If a company wants to change its name, it must:

pass a special resolution adopting a new name; and

lodge an application in the prescribed form with ASIC.

Note: The company may reserve a name before the resolution is passed or the application is lodged (see section 152).

The company must lodge a copy of the special resolution with ASIC within 14 days after it is passed.

An offence based on subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

If the proposed name is available, ASIC must change the company’s name by altering the details of the company’s registration to reflect the change. The change of name takes effect when ASIC alters the details of the company’s registration.

Note: For available names, see section 147.

Application by liquidator

The liquidator of a company that is being wound up may lodge an application with ASIC to change the name of the company if the liquidator is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.

Subsection (1) does not apply to a members’ voluntary winding up.

Application by administrator

The administrator of a company under administration may lodge an application with ASIC to change the name of the company if the administrator is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.

Application by deed administrator

The administrator of a deed of company arrangement may lodge an application with ASIC to change the name of the company if the administrator is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.

Application by restructuring practitioner

The restructuring practitioner for a company under restructuring may lodge an application with ASIC to change the name of the company if the restructuring practitioner is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.

Application by restructuring practitioner for a restructuring plan

The restructuring practitioner for a restructuring plan for a company may lodge an application with ASIC to change the name of the company if the restructuring practitioner is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.

Application by managing controller

If:

a person is the managing controller of property of a company; and

the person is entitled to enforce a security interest in the whole, or substantially the whole, of the company’s property;

the person may lodge an application with ASIC to change the name of the company if the person is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.

Application by receiver

If:

a person is a receiver of property of a company; and

the property subject to the receivership consists of, or includes, goodwill in relation to the name of the company;

the person may lodge an application with ASIC to change the name of the company if the person is satisfied that the proposed change of name is in the interests of the creditors of the company as a whole.

Change of name

If:

an application is lodged under subsection (1), (3), (4), (5) or (6); and

the proposed name is available;

ASIC must change the company’s name by altering the details of the company’s registration to reflect the change. The change of name takes effect when ASIC alters the details of the company’s registration.

Note: For available names, see section 147.

ASIC may direct a company in writing to change its name within 2 months if:

the name should not have been registered; or

the company has breached a condition under subsection 147(3) on the availability of the name; or

a consent given under subsection 147(4) to use or assume the name has been withdrawn; or

the company has breached a condition on a consent given under subsection 147(4); or

the company ceases to be permitted to use or assume the name (as referred to in paragraph 147(4)(b)).

The company must comply with the direction within 2 months after being given it by doing everything necessary to change its name under section 157.

An offence based on subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

If the company does not comply with subsection (2), ASIC may change the company’s name to its ACN and any other words that section 148 requires, by altering the details of the company’s registration to reflect the change.

A change of name under subsection (3) takes effect when ASIC alters the details of the company’s registration.

ASIC may change a company’s name so that it includes the word “Limited” by altering the details of the company’s registration to reflect the change if:

the company contravenes any of the requirements or prohibitions in its constitution referred to in subsection 150(1); or

the company modifies its constitution to remove any of those requirements or prohibitions; or

ASIC revokes a licence referred to in section 151 that applies to the company.

The change of name takes effect when ASIC alters the details of the company’s registration.

If ASIC changes a company’s name, it must give the company a new certificate of registration. The company’s new name is the name specified in the certificate of registration issued under this section.

Note: For the evidentiary value of a certificate of registration, see subsection 1274(7A).

A change of company name does not:

create a new legal entity; or

affect the company’s existing property, rights or obligations; or

render defective any legal proceedings by or against the company.

Any legal proceedings that could have been continued or begun by or against the company in its former name may be continued or begun by or against it in its new name.

This section applies to a company if:

any of the following conditions is satisfied:

the company is being wound up;

the company is under administration;

the company has executed a deed of company arrangement that has not yet terminated;

the company is under restructuring;

the company has made a restructuring plan that has not yet terminated;

there is a managing controller of property of the company;

there is a receiver of property of the company; and

any of the following conditions is satisfied:

a change of the company’s name takes effect;

in the case of a company that is being wound up—a change of the company’s name took effect during the 6-month period ending immediately before the relevant date;

in the case of a company under administration—a change of the company’s name took effect during the 6-month period ending immediately before the administration began;

in the case of a company that has executed a deed of company arrangement—a change of the company’s name took effect during the 6-month period ending immediately before the beginning of the administration that ended when the deed was executed;

in the case of a company under restructuring—a change of the company’s name took effect during the 6-month period ending immediately before the restructuring began;

in the case of a company that has made a restructuring plan—a change of the company’s name took effect during the 6-month period ending immediately before the beginning of the restructuring that ended when the plan was made;

in the case of a company where there is a managing controller—a change in the company’s name took effect during the 6-month period ending immediately before the appointment of the managing controller;

in the case of a company where there is a receiver—a change in the company’s name took effect during the 6-month period ending immediately before the appointment of the receiver.

If subparagraph (1)(b)(i) applies, the company must set out its former name on all its public documents and negotiable instruments.

If subparagraph (1)(b)(ii), (iii), (iv), (iva), (ivb), (v) or (vi) applies, then, except with the leave of the Court, the company must set out its former name on all its public documents and negotiable instruments.

An offence based on subsection (2) or (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

The regulations may exempt a specified company, or a class of companies, from the requirement in subsection (2) or (3). The exemption may relate to specified documents or instruments, or a specified class of documents or instruments.

The Court may only grant leave under subsection (3) on the application of:

if subparagraph (1)(b)(ii) applies—the liquidator of the company; or

if subparagraph (1)(b)(iii) applies—the administrator of the company; or

if subparagraph (1)(b)(iv) applies—the administrator of the deed of company arrangement; or

if subparagraph (1)(b)(iva) applies—the restructuring practitioner for the company; or

if subparagraph (1)(b)(ivb) applies—the restructuring practitioner for the restructuring plan; or

if subparagraph (1)(b)(v) applies—the managing controller; or

if subparagraph (1)(b)(vi) applies—the receiver.

As soon as practicable after applying for leave under subsection (3), the applicant must lodge with ASIC a notice stating that the application has been made. The notice must be in the prescribed form.

The Court may only grant leave under subsection (3) if it is satisfied that the granting of leave will not result in any significant risk to the interests of the company’s creditors (including contingent or prospective creditors) as a whole.

This Part provides for mutual capital instruments (MCIs).

An MCI is a share in a mutual entity that meets requirements relating to voting rights and other matters. Certain kinds of mutual entities may issue MCIs and become MCI mutual entities.

Division 3 sets out a special procedure for amending the constitution of a mutual entity that proposes to issue MCIs.

A mutual entity is an MCI mutual entity if:

the entity is a public company; and

the entity does not have voting shares (other than MCIs) quoted on a declared financial market; and

(c) the entity is not a registered entity within the meaning of the Australian Charities and Not-for-profits Commission Act 2012; and

the entity’s constitution states that the entity is intended to be an MCI mutual entity for the purposes of this Act; and

the entity has issued one or more MCIs.

(1) A share in a mutual entity is an MCI (short for mutual capital instrument) if:

paragraphs 167AC(a), (b), (c) and (d) apply to the entity; and

the share meets the requirements in sections 167AE and 167AF.

To avoid doubt, if a share that is an MCI ceases to meet one or more of those requirements, the share ceases to be an MCI.

Nothing in this Division requires an MCI mutual entity to treat the holders of MCIs in the same way as members of the entity who do not hold MCIs.

Note: For example, this Division does not require an MCI mutual entity that provides services to a class of members to provide those services to holders of MCIs.

A share in a mutual entity meets the requirement in this section if the rights attached to the share can be varied or cancelled only by special resolution of the company and either:

by special resolution passed at a meeting of the class of members holding shares in the same class; or

with the written consent of members with at least 75% of the votes in the class.

A share in a mutual entity meets the requirements in this section if the entity’s constitution:

provides that the share can only be issued as a fully paid share; and

provides that dividends in respect of the share are non-cumulative; and

sets out the rights attached to the share with respect to participation in surplus assets and profits.

A resolution of an MCI mutual entity that would result in the entity ceasing to be an MCI mutual entity can only take effect if:

there are no MCIs in the entity; or

the resolution provides for each MCI to be cancelled at or before the time the entity ceases to be an MCI mutual entity (whether or not the holders of the MCIs to be cancelled are to receive other securities in respect of those MCIs).

This Division sets out a special procedure for the constitution of a mutual entity to be amended to provide for the entity to issue MCIs.

This Division applies to a mutual entity that:

is a public company; and

does not have voting shares quoted on a declared financial market; and

(c) is not a registered entity within the meaning of the Australian Charities and Not-for-profits Commission Act 2012.

(1) An MCI amendment resolution is a resolution of the mutual entity to amend the entity’s constitution for one or more of the following purposes, and for no other purpose:

to include a statement that the entity is intended to be an MCI mutual entity for the purposes of this Act;

to provide for the entity to issue MCIs;

to provide for the rights and obligations attached to MCIs;

to make changes that are incidental or ancillary to the purpose in paragraph (a), (b) or (c).

An MCI amendment resolution must not result in the mutual entity ceasing to be a mutual entity.

This section applies to a meeting of the mutual entity’s members if:

notice of an MCI amendment resolution to be proposed at the meeting is given in accordance with paragraph 249L(1)(c); and

the meeting is held during the period of 36 months beginning on the day this section commences; and

no more than 2 MCI amendment resolutions have been considered at previous meetings of the mutual entity’s members.

The MCI amendment resolution:

must be passed at the meeting by at least 75% of the votes cast by or on behalf of members who are present at the meeting (including members who have appointed proxies who are present at the meeting) and entitled to vote on the resolution; and

if so passed—has effect as a special resolution despite subsections 136(3) and (4) and anything in the mutual entity’s constitution.

Despite section 135 and anything in the mutual entity’s constitution, section 249T (quorum) applies to the meeting to the extent that the meeting is considering or voting on the MCI amendment resolution.

Care and diligence—directors and other officers

A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they:

were a director or officer of a corporation in the corporation’s circumstances; and

occupied the office held by, and had the same responsibilities within the corporation as, the director or officer.

Note: This subsection is a civil penalty provision (see section 1317E).

Business judgment rule

A director or other officer of a corporation who makes a business judgment is taken to meet the requirements of subsection (1), and their equivalent duties at common law and in equity, in respect of the judgment if they:

make the judgment in good faith for a proper purpose; and

do not have a material personal interest in the subject matter of the judgment; and

inform themselves about the subject matter of the judgment to the extent they reasonably believe to be appropriate; and

rationally believe that the judgment is in the best interests of the corporation.

The director’s or officer’s belief that the judgment is in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in their position would hold.

Note: This subsection only operates in relation to duties under this section and their equivalent duties at common law or in equity (including the duty of care that arises under the common law principles governing liability for negligence)—it does not operate in relation to duties under any other provision of this Act or under any other laws.

In this section:

business judgment means any decision to take or not take action in respect of a matter relevant to the business operations of the corporation.

Good faith—directors and other officers

A director or other officer of a corporation must exercise their powers and discharge their duties:

in good faith in the best interests of the corporation; and

for a proper purpose.

Note 1: This subsection is a civil penalty provision (see section 1317E).

Note 2: Section 187 deals with the situation of directors of wholly-owned subsidiaries.

A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1: Section 79 defines involved.

Note 2: This subsection is a civil penalty provision (see section 1317E).

Use of position—directors, other officers and employees

A director, secretary, other officer or employee of a corporation must not improperly use their position to:

gain an advantage for themselves or someone else; or

cause detriment to the corporation.

Note: This subsection is a civil penalty provision (see section 1317E).

A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1: Section 79 defines involved.

Note 2: This subsection is a civil penalty provision (see section 1317E).

Use of information—directors, other officers and employees

A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to:

gain an advantage for themselves or someone else; or

cause detriment to the corporation.

Note 1: This duty continues after the person stops being an officer or employee of the corporation.

Note 2: This subsection is a civil penalty provision (see section 1317E).

A person who is involved in a contravention of subsection (1) contravenes this subsection.

Note 1: Section 79 defines involved.

Note 2: This subsection is a civil penalty provision (see section 1317E).

Good faith—directors and other officers

A director or other officer of a corporation commits an offence if they:

are reckless; or

are dishonest;

and fail to exercise their powers and discharge their duties:

in good faith in the best interests of the corporation; or

for a proper purpose.

Note: Section 187 deals with the situation of directors of wholly-owned subsidiaries.

Use of position—directors, other officers and employees

A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:

with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or

recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.

To avoid doubt, it is not a defence in a proceeding for an offence against subsection (2) that the director, other officer or employee of the corporation uses their position dishonestly:

with the intention of directly or indirectly gaining an advantage for the corporation; or

with the result that the corporation directly or indirectly gained an advantage.

Use of information—directors, other officers and employees

A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly:

with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or

recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.

To avoid doubt, it is not a defence in a proceeding for an offence against subsection (3) that the person uses the information dishonestly:

with the intention of directly or indirectly gaining an advantage for the corporation; or

with the result that the corporation directly or indirectly gained an advantage.

Sections 180 to 184:

have effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of a person because of their office or employment in relation to a corporation; and

do not prevent the commencement of civil proceedings for a breach of a duty or in respect of a liability referred to in paragraph (a).

This section does not apply to subsections 180(2) and (3) to the extent to which they operate on the duties at common law and in equity that are equivalent to the requirements of subsection 180(1).

Sections 180 to 184 do not apply to an act or omission by a director or other officer or employee of a foreign company unless the act or omission occurred in connection with:

the foreign company carrying on business in this jurisdiction; or

an act that the foreign company does, or proposes to do, in this jurisdiction; or

a decision by the foreign company whether or not to do, or refrain from doing, an act in this jurisdiction.

A director of a corporation that is a wholly-owned subsidiary of a body corporate is taken to act in good faith in the best interests of the subsidiary if:

the constitution of the subsidiary expressly authorises the director to act in the best interests of the holding company; and

the director acts in good faith in the best interests of the holding company; and

the subsidiary is not insolvent at the time the director acts and does not become insolvent because of the director’s act.

Responsibility of company secretaries

(1) A secretary of a company contravenes this subsection if the company contravenes any of the following provisions (each of which is a corporate responsibility provision):

section 142 (registered office);

section 145 (public company’s registered office to be open to public);

section 146 (change of principal place of business);

section 178A (change to proprietary company’s member register);

section 178C (change to proprietary company’s share structure);

subsection 203AA(6) (notification of resignation day);

section 205B (lodgement of notices with ASIC);

section 254X (issue of shares);

section 319 (lodgement of annual reports with ASIC);

section 320 (lodgement of half-year reports with ASIC);

section 346C (response to extract of particulars);

section 348D (response to return of particulars);

section 349A (change to proprietary company’s ultimate holding company).

Note 1: See section 204A for the circumstances in which a company must have a secretary.

Note 2: This subsection is a civil penalty provision (see section 1317E).

Note 3: This subsection has an extended operation in relation to the secretary of a corporate director of a CCIV: see sections 1225A and 1225B.

Responsibility of directors of proprietary companies

Each director of a proprietary company contravenes this subsection if:

the proprietary company contravenes a corporate responsibility provision; and

the proprietary company does not have a secretary when it contravenes that provision.

Note 1: See section 204A for the circumstances in which a company must have a secretary.

Note 2: This subsection is a civil penalty provision (see section 1317E).

Defence of reasonable steps

A person does not contravene subsection (1) or (2) in relation to a company’s contravention of a corporate responsibility provision if the person shows that he or she took reasonable steps to ensure that the company complied with the provision.

If:

a director relies on information, or professional or expert advice, given or prepared by:

an employee of the corporation whom the director believes on reasonable grounds to be reliable and competent in relation to the matters concerned; or

a professional adviser or expert in relation to matters that the director believes on reasonable grounds to be within the person’s professional or expert competence; or

another director or officer in relation to matters within the director’s or officer’s authority; or

a committee of directors on which the director did not serve in relation to matters within the committee’s authority; and

the reliance was made:

in good faith; and

after making an independent assessment of the information or advice, having regard to the director’s knowledge of the corporation and the complexity of the structure and operations of the corporation; and

the reasonableness of the director’s reliance on the information or advice arises in proceedings brought to determine whether a director has performed a duty under this Part or an equivalent general law duty;

the director’s reliance on the information or advice is taken to be reasonable unless the contrary is proved.

If the directors delegate a power under section 198D, a director is responsible for the exercise of the power by the delegate as if the power had been exercised by the directors themselves.

A director is not responsible under subsection (1) if:

the director believed on reasonable grounds at all times that the delegate would exercise the power in conformity with the duties imposed on directors of the company by this Act and the company’s constitution (if any); and

the director believed:

on reasonable grounds; and

in good faith; and

after making proper inquiry if the circumstances indicated the need for inquiry;

that the delegate was reliable and competent in relation to the power delegated.

This Division does not apply to an act or omission by a director or other officer or employee of a corporation that is a registrable Australian body unless the act or omission occurred in connection with:

the body carrying on business outside its place of origin; or

an act that the body does or proposed to do outside its place of origin; or

a decision by the body whether or not to do or refrain from doing outside its place of origin.

This Division does not apply to a corporation that is an Aboriginal and Torres Strait Islander corporation.

Note: Corporations (Aboriginal and Torres Strait Islander) Act 2006 deals with the general duties of directors, secretaries, officers and employees of Aboriginal and Torres Strait Islander corporations.Division 265 of the

This Division does not apply to an act or omission by a person, if:

the act or omission is in the person’s capacity as a director, other officer or employee of a notified foreign passport fund; or

the act or omission:

is in the person’s capacity as a director, other officer or employee of the operator of a notified foreign passport fund; and

is connected with the operation of the fund.

Director’s duty to notify other directors of material personal interest when conflict arises

A director of a company who has a material personal interest in a matter that relates to the affairs of the company must give the other directors notice of the interest unless subsection (2) says otherwise.

For an offence based on subsection (1), strict liability applies to the circumstance, that the director of a company has a material personal interest in a matter that relates to the affairs of the company.

Note: For strict liability, see section 6.1 of the Criminal Code.

The director does not need to give notice of an interest under subsection (1) if:

the interest:

arises because the director is a member of the company and is held in common with the other members of the company; or

arises in relation to the director’s remuneration as a director of the company; or

relates to a contract the company is proposing to enter into that is subject to approval by the members and will not impose any obligation on the company if it is not approved by the members; or

arises merely because the director is a guarantor or has given an indemnity or security for all or part of a loan (or proposed loan) to the company; or

arises merely because the director has a right of subrogation in relation to a guarantee or indemnity referred to in subparagraph (iv); or

relates to a contract that insures, or would insure, the director against liabilities the director incurs as an officer of the company (but only if the contract does not make the company or a related body corporate the insurer); or

relates to any payment by the company or a related body corporate in respect of an indemnity permitted under section 199A or any contract relating to such an indemnity; or

is in a contract, or proposed contract, with, or for the benefit of, or on behalf of, a related body corporate and arises merely because the director is a director of the related body corporate; or

the company is a proprietary company and the other directors are aware of the nature and extent of the interest and its relation to the affairs of the company; or

all the following conditions are satisfied:

the director has already given notice of the nature and extent of the interest and its relation to the affairs of the company under subsection (1);

if a person who was not a director of the company at the time when the notice under subsection (1) was given is appointed as a director of the company—the notice is given to that person;

the nature or extent of the interest has not materially increased above that disclosed in the notice; or

the director has given a standing notice of the nature and extent of the interest under section 192 and the notice is still effective in relation to the interest.

Note: Subparagraph (c)(ii)—the notice may be given to the person referred to in this subparagraph by someone other than the director to whose interests it relates (for example, by the secretary).

The notice required by subsection (1) must:

give details of:

the nature and extent of the interest; and

the relation of the interest to the affairs of the company; and

be given at a directors’ meeting as soon as practicable after the director becomes aware of their interest in the matter.

The details must be recorded in the minutes of the meeting.

Effect of contravention by director

A contravention of this section by a director does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

Section does not apply to single director proprietary company

This section does not apply to a proprietary company that has only 1 director.

Power to give notice

A director of a company who has an interest in a matter may give the other directors standing notice of the nature and extent of the interest in the matter in accordance with subsection (2). The notice may be given at any time and whether or not the matter relates to the affairs of the company at the time the notice is given.

Note: The standing notice may be given to the other directors before the interest becomes a material personal interest.

The notice under subsection (1) must:

give details of the nature and extent of the interest; and

be given:

at a directors’ meeting (either orally or in writing); or

to the other directors individually in writing.

The standing notice is given under subparagraph (b)(ii) when it has been given to every director.

Standing notice must be tabled at meeting if given to directors individually

If the standing notice is given to the other directors individually in writing, it must be tabled at the next directors’ meeting after it is given.

Nature and extent of interest must be recorded in minutes

The director must ensure that the nature and extent of the interest disclosed in the standing notice is recorded in the minutes of the meeting at which the standing notice is given or tabled.

Dates of effect and expiry of standing notice

The standing notice:

takes effect as soon as it is given; and

ceases to have effect if a person who was not a director of the company at the time when the notice was given is appointed as a director of the company.

A standing notice that ceases to have effect under paragraph (b) commences to have effect again if it is given to the person referred to in that paragraph.

Effect of material increase in nature or extent of interest

Note: The notice may be given to the person referred to in paragraph (b) by someone other than the director to whose interests it relates (for example, by the secretary).

The standing notice ceases to have effect in relation to a particular interest if the nature or extent of the interest materially increases above that disclosed in the notice.

Effect of contravention by director

A contravention of this section by a director does not affect the validity of any act, transaction, agreement, instrument, resolution or other thing.

Sections 191 and 192 have effect in addition to, and not in derogation of:

any general law rule about conflicts of interest; and

any provision in a company’s constitution (if any) that restricts a director from:

having a material personal interest in a matter; or

holding an office or possessing property;

involving duties or interests that conflict with their duties or interests as a director.

If a director of a proprietary company has a material personal interest in a matter that relates to the affairs of the company and:

under section 191 the director discloses the nature and extent of the interest and its relation to the affairs of the company at a meeting of the directors; or

the interest is one that does not need to be disclosed under section 191;

then:

the director may vote on matters that relate to the interest; and

any transactions that relate to the interest may proceed; and

the director may retain benefits under the transaction even though the director has the interest; and

the company cannot avoid the transaction merely because of the existence of the interest.

If disclosure is required under section 191, paragraphs (e) and (f) apply only if the disclosure is made before the transaction is entered into.

Note: A director may need to give notice to the other directors if the director has a material personal interest in a matter relating to the affairs of the company (see section 191).

Restrictions on voting and being present

A director of a public company who has a material personal interest in a matter that is being considered at a directors’ meeting must not:

be present while the matter is being considered at the meeting; or

vote on the matter.

Subsection (1) does not apply if:

subsection (2) or (3) allows the director to be present; or

the interest does not need to be disclosed under section 191.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A), see subsection 13.3(3) of the Criminal Code.

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Participation with approval of other directors

The director may be present and vote if directors who do not have a material personal interest in the matter have passed a resolution that:

identifies the director, the nature and extent of the director’s interest in the matter and its relation to the affairs of the company; and

states that those directors are satisfied that the interest should not disqualify the director from voting or being present.

Participation with ASIC approval

The director may be present and vote if they are so entitled under a declaration or order made by ASIC under section 196.

Director may consider or vote on resolution to deal with matter at general meeting

If there are not enough directors to form a quorum for a directors’ meeting because of subsection (1), 1 or more of the directors (including those who have a material personal interest in that matter) may call a general meeting and the general meeting may pass a resolution to deal with the matter.

Effect of contravention by director

A contravention by a director of:

this section; or

a condition attached to a declaration or order made by ASIC under section 196;

does not affect the validity of any resolution.

ASIC’s power to make specific declarations

ASIC may declare in writing that a director of a public company who has a material personal interest in a matter that is being, or is to be, considered at a directors’ meeting may, despite the director’s interest, be present while the matter is being considered at the meeting, vote on the matter, or both be present and vote. However, ASIC may only make the declaration if:

the number of directors entitled to be present and vote on the matter would be less than the quorum for a directors’ meeting if the director were not allowed to vote on the matter at the meeting; and

the matter needs to be dealt with urgently, or there is some other compelling reason for the matter being dealt with at the directors’ meeting, rather than by a general meeting called under subsection 195(4).

The declaration may:

apply to all or only some of the directors; or

specify conditions that the company or director must comply with.

ASIC’s power to make class orders

ASIC may make an order in writing that enables directors who have a material personal interest in a matter to be present while the matter is being considered at a directors’ meeting, vote on that matter, or both be present and vote. The order may be made in respect of a specified class of public companies, directors, resolutions or interests.

The order may be expressed to be subject to conditions.

(5) Notice of the making, revocation or suspension of the order must be published in the Gazette.

A person who is a director of a corporation when it incurs a liability while acting, or purporting to act, as trustee, is liable to discharge the whole or a part of the liability if the corporation:

has not discharged, and cannot discharge, the liability or that part of it; and

is not entitled to be fully indemnified against the liability out of trust assets solely because of one or more of the following:

a breach of trust by the corporation;

the corporation’s acting outside the scope of its powers as trustee;

a term of the trust denying, or limiting, the corporation’s right to be indemnified against the liability.

The person is liable both individually and jointly with the corporation and anyone else who is liable under this subsection.

Note: The person will not be liable under this subsection merely because there are insufficient trust assets out of which the corporation can be indemnified.

The person is not liable under subsection (1) if the person would be entitled to have been fully indemnified by 1 of the other directors against the liability had all the directors of the corporation been trustees when the liability was incurred.

This section does not apply to a liability incurred outside Australia by a foreign company.

This section does not apply to a liability incurred by a corporation that is:

a notified foreign passport fund; or

the operator of a notified foreign passport fund acting in that capacity.

This section does not apply to a liability incurred by a registrable Australian body outside its place of origin.

This section does not apply to a corporation that is an Aboriginal and Torres Strait Islander corporation.

Note: Section 271-1 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 deals with the liability of directors of Aboriginal and Torres Strait Islander corporations for debts and other liabilities incurred by those corporations as trustee.

The business of a company is to be managed by or under the direction of the directors.

Note: See section 198E for special rules about the powers of directors who are the single director/shareholder of proprietary companies.

The directors may exercise all the powers of the company except any powers that this Act or the company’s constitution (if any) requires the company to exercise in general meeting.

Note: For example, the directors may issue shares, borrow money and issue debentures.

Any 2 directors of a company that has 2 or more directors, or the director of a proprietary company that has only 1 director, may sign, draw, accept, endorse or otherwise execute a negotiable instrument.

The directors may determine that a negotiable instrument may be signed, drawn, accepted, endorsed or otherwise executed in a different way.

The directors of a company may confer on a managing director any of the powers that the directors can exercise.

The directors may revoke or vary a conferral of powers on the managing director.

Unless the company’s constitution provides otherwise, the directors of a company may delegate any of their powers to:

a committee of directors; or

a director; or

an employee of the company; or

any other person.

Note 1: The delegation must be recorded in the company’s minute book (see section 251A).

Note 2: If the company is a CCIV, section 1224L applies instead of this section.

The delegate must exercise the powers delegated in accordance with any directions of the directors.

The exercise of the power by the delegate is as effective as if the directors had exercised it.

Powers of director

The director of a proprietary company who is its only director and only shareholder may exercise all the powers of the company except any powers that this Act or the company’s constitution (if any) requires the company to exercise in general meeting. The business of the company is to be managed by or under the direction of the director.

Note: For example, the director may issue shares, borrow money and issue debentures.

Negotiable instruments

The director of a proprietary company who is its only director and only shareholder may sign, draw, accept, endorse or otherwise execute a negotiable instrument. The director may determine that a negotiable instrument may be signed, drawn, accepted, endorsed or otherwise executed in a different way.

Right while director

A director of a company may inspect the books of the company (other than its financial records) at all reasonable times for the purposes of a legal proceeding:

to which the person is a party; or

that the person proposes in good faith to bring; or

that the person has reason to believe will be brought against them.

Note 1: Section 290 gives the director a right of access to financial records.

Note 2: This section also applies to a director of a corporate director of a CCIV: see section 1225D.

Right during 7 years after ceasing to be director

A person who has ceased to be a director of a company may inspect the books of the company (including its financial records) at all reasonable times for the purposes of a legal proceeding:

to which the person is a party; or

that the person proposes in good faith to bring; or

that the person has reason to believe will be brought against them.

This right continues for 7 years after the person ceased to be a director of the company.

Right to take copies

A person authorised to inspect books under this section for the purposes of a legal proceeding may make copies of the books for the purposes of those proceedings.

Company not to refuse access

A company must allow a person to exercise their rights to inspect or take copies of the books under this section.

Interaction with other rules

This section does not limit any right of access to company books that a person has apart from this section.

Powers of officers while company under external administration

While a company is under external administration, an officer of the company must not perform or exercise a function or power of that office.

Note: For a CCIV, section 1224Q applies instead of this section.

Offence

A person commits an offence if:

the person is an officer of a company; and

the company is under external administration; and

the person purports to perform or exercise a function or power of that office.

Penalty: 30 penalty units.

Exceptions

Subsections (1) and (2) do not apply to the extent that the officer of the company is acting:

as the external administrator of the company; or

with the written approval of the external administrator of the company or the Court; or

in circumstances in which, despite the fact that the company is under external administration, the officer is permitted by this Act to act.

Note: In proceedings to determine whether a person has committed an offence under subsection (2), a defendant bears an evidential burden in relation to the matters in subsection (3), see subsection 13.3(3) of the Criminal Code.

Subsections (1) and (2) do not apply if the company has executed a deed of company arrangement and the deed has not yet terminated.

Note 1: Section 444G deals with the effect of a deed of company arrangement on various persons.

Note 2: In proceedings to determine whether a person has committed an offence under subsection (2), a defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.

Subsections (1) and (2) do not apply in relation to:

a company under restructuring; or

a company that has made a restructuring plan that has not yet terminated.

Functions and powers of liquidator or provisional liquidator prevail in case of conflict

If subsection (3) applies and there is a conflict between a function or power of the external administrator of the company and a function or power of the officer in relation to the company, the external administrator’s function or power prevails.

Effect of section

This section does not remove an officer of a company from office.

For the purposes of this section, a person is not an officer of a company merely because he or she is a managing controller, appointed under a power contained in an instrument, of property of the company.

Nothing in this section affects a secured creditor’s right to realise or otherwise deal with the security interest.

Definitions

In this section:

external administration of a company has the same meaning as in Schedule 2.

Exemptions not allowed

A company or a related body corporate must not exempt a person (whether directly or through an interposed entity) from a liability to the company incurred as an officer or auditor of the company.

Note: This section is modified for the director of a wholesale CCIV: see subsection 1224D(7). This section has an extended operation in relation to officers and auditors of the corporate director of a CCIV: see section 1225E.

When indemnity for liability (other than for legal costs) not allowed

A company or a related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer or auditor of the company:

a liability owed to the company or a related body corporate;

a liability for a pecuniary penalty order under section 1317G or a compensation order under section 961M, 1317H, 1317HA, 1317HB, 1317HC or 1317HE;

a liability that is owed to someone other than the company or a related body corporate and did not arise out of conduct in good faith.

This subsection does not apply to a liability for legal costs.

When indemnity for legal costs not allowed

A company or related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against legal costs incurred in defending an action for a liability incurred as an officer or auditor of the company if the costs are incurred:

in defending or resisting proceedings in which the person is found to have a liability for which they could not be indemnified under subsection (2); or

in defending or resisting criminal proceedings in which the person is found guilty; or

in defending or resisting proceedings brought by ASIC or a liquidator for a court order if the grounds for making the order are found by the court to have been established; or

in connection with proceedings for relief to the person under this Act in which the Court denies the relief.

Paragraph (c) does not apply to costs incurred in responding to actions taken by ASIC or a liquidator as part of an investigation before commencing proceedings for the court order.

Note 1: Paragraph (c)—This includes proceedings by ASIC for an order under section 206C, 206D, 206E or 206EAA (disqualification), section 232 (oppression), section 961M, 1317E, 1317G, 1317H, 1317HA, 1317HB, 1317HC or 1317HE (civil penalties) or section 1324 (injunction).

Note 2: The company may be able to give the person a loan or advance in respect of the legal costs (see section 212).

For the purposes of subsection (3), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.

A company or a related body corporate must not pay, or agree to pay, a premium for a contract insuring a person who is or has been an officer or auditor of the company against a liability (other than one for legal costs) arising out of:

conduct involving a wilful breach of duty in relation to the company; or

a contravention of section 182 or 183.

This section applies to a premium whether it is paid directly or through an interposed entity.

Note: This section has an extended operation in relation to officers and auditors of the corporate director of a CCIV: see section 1225E.

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Sections 199A and 199B do not authorise anything that would otherwise be unlawful.

Anything that purports to indemnify or insure a person against a liability, or exempt them from a liability, is void to the extent that it contravenes section 199A or 199B.

For the purposes of this Division, in determining whether a benefit is given:

give a broad interpretation to benefits being given, even if criminal or civil penalties may be involved; and

the economic and commercial substance of conduct is to prevail over its legal form.

If the company is a disclosing entity

(1) For a company to which managerial or executive office in the company during the current financial year if the person’s details were included in the directors’ report for that previous financial year for the company in accordance with paragraph 300A(1)(c).section 300A applies for the previous financial year for the company, a person holds a

Note: A person holding a managerial or executive office ceases to do so if the person’s details are not included in the next directors’ report. However, this is not relevant to whether the person has retired from an office or position in the company (see paragraph 200A(1)(f)).

The person is taken to hold the managerial or executive office for the whole of the current financial year unless and until the person retires from an office or position in the company before the end of that year.

Note: Retires has an extended meaning (see section 200A).

Otherwise

(3) For a body corporate not covered by subsection (1), a managerial or executive office for the body corporate is:

an office of director of the body corporate; or

any other office or position in connection with the management of the body corporate’s affairs that is held by a person who also holds an office of director of the body corporate or a related body corporate.

(1) For the purposes of this Division, a benefit includes any of the following:

a payment or other valuable consideration;

any kind of real or personal property;

any legal or equitable estate or interest in real or personal property;

any legal or equitable right;

a thing specified in regulations made for the purposes of this paragraph.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

(2) However, for the purposes of this Division, a benefit does not include a thing specified in regulations made for the purposes of this subsection.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

General rules

For the purposes of this Division:

a benefit is given in connection with a person’s retirement from an office or position if the benefit is given:

by way of compensation for, or otherwise in connection with, the loss by the person of the office or position; or

in connection with the person’s retirement from the office or position; and

giving a benefit includes:

if the benefit is a payment—making the payment; and

if the benefit is an interest in property—transferring the interest; and

a person gives a benefit even if the person is obliged to give the benefit under a contract; and

a pension or lump sum is paid or payable in connection with the person’s retirement from an office or position if the pension or lump sum is paid or payable:

by way of compensation for, or otherwise in connection with, the loss by the person of the office or position; or

in connection with the person’s retirement from the office or position; and

retirement from an office or position includes:

loss of the office or position; and

resignation from the office or position; and

death of a person at a time when they hold the office or position; and

when working out whether a person has retired from an office or position, disregard whether or not the person’s details are included in a directors’ report in accordance with paragraph 300A(1)(c).

Rules in regulations

Without limiting subsection (1), a benefit is given in connection with a person’s retirement from an office or position if the benefit is given in circumstances specified in regulations made for the purposes of this subsection.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

Related benefits

For the purposes of this Division, if:

(a) a person (person A) gives another person a benefit (benefit A); and

(b) person A gives benefit A for the purpose, or for purposes including the purpose, of enabling or assisting someone to give a person a benefit in connection with the retirement of a person (person B) from an office or position;

person A is taken to give benefit A in connection with the person B’s retirement from that office or position.

Benefits in connection with retirement if person has held a managerial or executive office

(1) An entity mentioned in subsection (1AA) must not give a person a benefit in connection with a person’s (the retiree’s) retirement from an office, or position of employment, in a company or a related body corporate if:

the office or position is a managerial or executive office; or

the retiree has, at any time during the last 3 years before his or her retirement, held a managerial or executive office in the company or a related body corporate;

unless there is member approval under section 200E for the giving of the benefit.

(1AA) The entities are as follows:

Note 1: This subsection extends to benefits given by way of compensation for, or otherwise in connection with, a person’s loss of an office or position (see subsections 200A(1) and (3)).

Note 2: Sections 200F, 200G and 200H provide for exceptions to this subsection.

Note 3: The recipient of the benefit need not be the retiree.

Note 4: This section has a modified operation in relation to CCIVs: see section 1224ZD.

the company;

an associate of the company (other than a body corporate that is related to the company and is itself a company);

a prescribed superannuation fund in relation to the company.

For an offence based on subsection (1), strict liability applies to the circumstance, that the benefit is in connection with the retiree’s, or someone else’s, retirement.

Note: For strict liability, see section 6.1 of the Criminal Code.

Prescribed superannuation funds

For the purposes of this section:

a superannuation fund is taken to be a prescribed superannuation fund in relation to a company if the company, or an associate of the company, gives a benefit to the superannuation fund in prescribed circumstances; and

if a prescribed superannuation fund in relation to a company gives a benefit to another superannuation fund in prescribed circumstances, the other superannuation fund is taken to be a prescribed superannuation fund in relation to the company.

Prescribed circumstances

For the purposes of this section, if:

a company, or an associate of a company, gives a benefit to a superannuation fund solely for the purpose of enabling or assisting the superannuation fund to give to a person a benefit in connection with the retiree’s retirement from an office or position in the company or a related body corporate; or

a superannuation fund gives a benefit to another superannuation fund solely for the purpose of enabling or assisting the other superannuation fund to give to a person a benefit in connection with the retiree’s retirement from an office or position in a company or a related body corporate;

the benefit first referred to in paragraph (a) or (b) is taken to be given in prescribed circumstances.

In this section:

superannuation fund means a provident, benefit, superannuation or retirement fund.

A person must not give a benefit to a person who:

holds, or has at any previous time held, a managerial or executive office in a company or a related body corporate; or

is the spouse of a person referred to in paragraph (a); or

is a relative of a person referred to in paragraph (a) or of the spouse of such a person; or

is an associate of a person referred to in paragraph (a) or the spouse of an associate of such a person;

in connection with the transfer of the whole or any part of the undertaking or property of the company.

Note: This section has a modified operation in relation to CCIVs: see section 1224ZD.

For an offence based on subsection (1), strict liability applies to the circumstance, that the transfer is in connection with the transfer of the whole or any part of the undertaking or property of the company.

Note: For strict liability, see section 6.1 of the Criminal Code.

Subsection (1) does not apply to the extent that there is member approval under section 200E.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3), see subsection 13.3(3) of the Criminal Code.

A person who:

holds, or has at any previous time held, a managerial or executive office in a company or related body corporate; or

is the spouse of a person referred to in paragraph (a); or

is a relative of a person referred to in paragraph (a) or of the spouse of such a person; or

is an associate of a person referred to in paragraph (a) or the spouse of an associate of such a person;

must not receive a benefit if the giving of the benefit contravenes section 200B or 200C.

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Conditions for member approval

For the purposes of section 200B, the conditions set out in subsections (1B), (2) and (2A) must be satisfied for there to be member approval under this section for the giving of the benefit to the person in connection with the retiree’s retirement from the office or position.

For the purposes of section 200C, the conditions set out in subsections (1B) and (2) must be satisfied for there to be member approval under this section for the giving of the benefit.

First condition

The first condition is that the giving of the benefit be approved by a resolution passed at a general meeting of:

the company; and

if the company is a subsidiary of a listed domestic corporation—the listed corporation; and

if the company has a holding company that:

is a domestic corporation that is not listed; and

is not itself a subsidiary of a domestic corporation;

the holding company.

Second condition

The second condition is that details of the benefit must be set out in, or accompany, the notice of the general meeting that is to consider the resolution. The details must include:

if the proposed benefit is a payment:

the amount of the payment; or

if that amount cannot be ascertained at the time of the disclosure—the manner in which that amount is to be calculated and any matter, event or circumstance that will, or is likely to, affect the calculation of that amount; and

otherwise:

the money value of the proposed benefit; or

if that value cannot be ascertained at the time of the disclosure—the manner in which that value is to be calculated and any matter, event or circumstance that will, or is likely to, affect the calculation of that value.

These requirements are in addition to, and not in derogation of, any other law that requires disclosure to be made with respect to giving or receiving a benefit.

Third condition—for approvals relating to section 200B

The third condition is that at the general meeting, a vote on the resolution must not be cast (in any capacity) by or on behalf of:

the retiree; or

an associate of the retiree.

Subsection (2A) does not prevent the casting of a vote if:

it is cast by a person as a proxy appointed by writing that specifies how the proxy is to vote on the resolution; and

it is not cast on behalf of the retiree or an associate of the retiree.

The regulations may prescribe cases where subsection (2A) does not apply.

Meeting may approve a lesser benefit

For the purposes of subsection (1B), the resolution may give approval by approving the giving of another benefit to the person if:

the other benefit is given to the person instead of the proposed benefit; and

the amount or money value of the benefit is less than the amount or money value of the proposed benefit.

Effect of approval on directors’ duties

Member approval under this section does not relieve a director of a body corporate from any duty to the body corporate (whether under section 180, 181, 182, 183 or 184 or otherwise and whether of a fiduciary nature or not) in connection with the giving of the benefit.

Subsection 200B(1) does not apply to:

a benefit that is a payment made in respect of leave of absence to which the person is entitled under an industrial instrument; or

a benefit given under an order of a court; or

a benefit given in prescribed circumstances.

Subsection 200B(1) does not apply to a benefit given in connection with a person’s retirement from an office or position in relation to a company if:

the benefit is:

a genuine payment by way of damages for breach of contract; or

given to the person under an agreement made between the company and the person before the person became the holder of the office or position as the consideration, or part of the consideration, for the person agreeing to hold the office or position; and

the value of the benefit, when added to the value of all other benefits (if any) already given in connection with the person’s retirement from offices or positions in the company and related bodies corporate, does not exceed the amount worked out under whichever of subsections (3) and (4) is applicable.

This subsection applies if the relevant period for the person is less than 1 year. The amount worked out under this subsection is:

where:

estimated annual base salary is a reasonable estimate of the base salary that the person would have received from the company and related bodies corporate during the relevant period if the relevant period had been 1 year.

Note: The relevant period for the person is defined in subsection (5).

This subsection applies in every other case. The amount worked out under this subsection is:

if the relevant period is 1 year—the base salary that the person received from the company and related bodies corporate during the relevant period; or

if the relevant period is more than 1 year but less than 2 years—the average annual base salary that the person received from the company and related bodies corporate during the relevant period, worked out as if:

the relevant period were 2 years; and

the person’s annual base salary for the second year were a reasonable estimate of what the person would have received as base salary after the first year of the relevant period had the relevant period been 2 years; or

if the relevant period is 2 years—the average annual base salary that the person received from the company and related bodies corporate during the relevant period; or

if the relevant period is more than 2 years but less than 3 years—the average annual base salary that the person received from the company and related bodies corporate during the relevant period, worked out as if:

the relevant period were 3 years; and

the person’s annual base salary for the third year were a reasonable estimate of what the person would have received as base salary after the second year of the relevant period had the relevant period been 3 years; or

if the relevant period is 3 years or more—the average annual base salary that the person received from the company and related bodies corporate during the last 3 years of the relevant period.

For the purposes of this section, if a person has held a managerial or executive office in relation to a company:

throughout a period; or

throughout a number of periods;

the relevant period for that person is that period or the period consisting of those periods.

Subsection 200B(1) does not apply to a benefit if:

the benefit is a payment in connection with a person’s retirement from an office or position in a company or a related body corporate; and

the payment is for past services the person rendered to:

the company; or

a related body corporate; or

a body that was a related body corporate of the company when the past services were rendered; and

the value of the benefit, when added to the value of all other benefits (if any) already given in connection with the person’s retirement from offices or positions in the company and related bodies corporate does not exceed the amount worked out under whichever of subsections (2) and (3) is applicable.

In applying paragraph (c), disregard any pensions or lump sums that section 200F applies to.

This subsection applies if the relevant period for the person is less than 1 year. The amount worked out under this subsection is:

where:

estimated annual base salary is a reasonable estimate of the base salary that the person would have received from the company and related bodies corporate during the relevant period if the relevant period had been 1 year.

Note: The relevant period for the person is defined in subsection (6).

This subsection applies in every other case. The amount worked out under this subsection is:

if the relevant period is 1 year—the base salary that the person received from the company and related bodies corporate during the relevant period; or

if the relevant period is more than 1 year but less than 2 years—the average annual base salary that the person received from the company and related bodies corporate during the relevant period, worked out as if:

the relevant period were 2 years; and

the person’s annual base salary for the second year were a reasonable estimate of what the person would have received as base salary after the first year of the relevant period had the relevant period been 2 years; or

if the relevant period is 2 years—the average annual base salary that the person received from the company and related bodies corporate during the relevant period; or

if the relevant period is more than 2 years but less than 3 years—the average annual base salary that the person received from the company and related bodies corporate during the relevant period, worked out as if:

the relevant period were 3 years; and

the person’s annual base salary for the third year were a reasonable estimate of what the person would have received as base salary after the second year of the relevant period had the relevant period been 3 years; or

if the relevant period is 3 years or more—the average annual base salary that the person received from the company and related bodies corporate during the last 3 years of the relevant period.

In determining for the purposes of paragraph (1)(c) the value of a pension or lump sum payment, disregard any part of the pension or lump sum payment that is attributable to:

a contribution made by the person; or

a contribution made by a person other than:

the company; or

(ii) a body corporate (a relevant body corporate) that is a related body corporate of the company, or that was, when the contribution was made, such a related body corporate; or

an associate of the company, or of a relevant body corporate, in respect of:

(A) the payment of the pension, or the making of the lump sum payment, as the case may be; or

(B) the making of the contribution.

In this section:

payment means a payment by way of pension or lump sum and includes a superannuation, retiring allowance, superannuation gratuity or similar payment.

relevant period: if a person has held a managerial or executive office in the company or a related body corporate:

throughout a period; or

throughout a number of periods;

the relevant period for that person is that period or the period consisting of those periods.

Subsection 200B(1) does not apply to a benefit given by a person if failure to give the benefit would constitute a contravention of a law in force in Australia or elsewhere (otherwise than because of breach of contract or breach of trust).

(1) If an entity (the giver) contravenes section 200B by giving a benefit to a person (the recipient), then the amount of the benefit, or the money value of the benefit if it is not a payment:

is taken to be received by the recipient on trust for the giver; and

must be immediately repaid by the recipient to the giver.

An amount repayable under subsection (1) to the giver:

is a debt due to the giver; and

may be recovered by the giver in a court of competent jurisdiction.

Subsection (1) applies to the whole of the amount of a payment or of the money value of the benefit even though giving the benefit would not have contravened section 200B if that amount or value of the benefit had been less.

Proprietary companies

A proprietary company must have at least 1 director. That director must ordinarily reside in Australia.

However, a proprietary company must have at least 2 directors while the company has one or more CSF shareholders. Of those directors:

if there are only 2 of them—at least one of them must ordinarily reside in Australia; or

otherwise—a majority of them must ordinarily reside in Australia.

Note: The company must also have at least 2 directors when making the CSF offer (see paragraph 738H(1)(a)).

Public companies

A public company must have at least 3 directors (not counting alternate directors). At least 2 directors must ordinarily reside in Australia.

Only an individual who is at least 18 may be appointed as a director of a company.

A person who is disqualified from managing corporations under Part 2D.6 may only be appointed as director of a company if the appointment is made with permission granted by ASIC under section 206GAB or leave granted by the Court under section 206G.

A company contravenes this subsection if a person does not give the company a signed consent to act as a director of the company before being appointed.

The company must keep the consent.

An offence based on subsection (1) or (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

A resolution passed at a general meeting of a public company appointing or confirming the appointment of 2 or more directors is void unless:

the meeting has resolved that the appointments or confirmations may be voted on together; and

no votes were cast against the resolution.

This section does not affect:

a resolution to appoint directors by an amendment to the company’s constitution (if any); or

a ballot or poll to elect 2 or more directors if the ballot or poll does not require members voting for 1 candidate to vote for another candidate.

For the purposes of paragraph (2)(b), a ballot or poll does not require a member to vote for a candidate merely because the member is required to express a preference among individual candidates in order to cast a valid vote.

The director of a proprietary company who is its only director and only shareholder may appoint another director by recording the appointment and signing the record.

Appointment of new director on death, mental incapacity or bankruptcy

If a person who is the only director and the only shareholder of a proprietary company:

dies; or

cannot manage the company because of the person’s mental incapacity;

and a personal representative or trustee is appointed to administer the person’s estate or property, the personal representative or trustee may appoint a person as the director of the company.

If:

the office of the director of a proprietary company is vacated under subsection 206B(3) or (4) because of the bankruptcy of the director; and

the person is the only director and the only shareholder of the company; and

a trustee in bankruptcy is appointed to the person’s property;

the trustee may appoint a person as the director of the company.

A person who has a power of appointment under subsection (2) or (3) may appoint themselves as director.

A person appointed as a director of a company under subsection (2), (3) or (4) holds office as if they had been appointed in the usual way.

A company may appoint a person as a director by resolution passed in general meeting.

Appointment by other directors

The directors of a company may appoint a person as a director. A person can be appointed as a director in order to make up a quorum for a directors’ meeting even if the total number of directors of the company is not enough to make up that quorum.

Proprietary company—confirmation by meeting within 2 months

If a person is appointed under this section as a director of a proprietary company, the company must confirm the appointment by resolution within 2 months after the appointment is made. If the appointment is not confirmed, the person ceases to be a director of the company at the end of those 2 months.

Public company—confirmation by next AGM

If a person is appointed by the other directors as a director of a public company, the company must confirm the appointment by resolution at the company’s next AGM. If the appointment is not confirmed, the person ceases to be a director of the company at the end of the AGM.

The directors of a company may appoint 1 or more of themselves to the office of managing director of the company for the period, and on the terms (including as to remuneration), as the directors see fit.

With the other directors’ approval, a director may appoint an alternate to exercise some or all of the director’s powers for a specified period.

If the appointing director requests the company to give the alternate notice of directors’ meetings, the company must do so.

When an alternate exercises the director’s powers, the exercise of the powers is just as effective as if the powers were exercised by the director.

The appointing director may terminate the alternate’s appointment at any time.

An appointment or its termination must be in writing. A copy must be given to the company.

Note: ASIC must be given notice of the appointment and termination of appointment of an alternate (see subsections 205B(2) and (5)).

Under within 28 days if a person is appointed as a director or as an alternate director.section 205B, a company must notify ASIC

An act done by a director is effective even if their appointment, or the continuance of their appointment, is invalid because the company or director did not comply with the company’s constitution (if any) or any provision of this Act.

Subsection (1) does not deal with the question whether an effective act by a director:

binds the company in its dealings with other people; or

makes the company liable to another person.

Note: The kinds of acts that this section validates are those that are only legally effective if the person doing them is a director (for example, calling a meeting of the company’s members or signing a document to be lodged with ASIC or minutes of a meeting). Sections 128-130 contain rules about the assumptions people are entitled to make when dealing with a company and its officers.

Subdivision B—Limits on numbers of directors of public companies

(1) This Subdivision applies in relation to a public company if its constitution allows its directors to set a limit (a board limit) whose effect is to restrict the number of directors of the company to a number less than the maximum number of directors specified in the constitution.

Note: This Subdivision applies however the constitution or board limit is expressed.

If a company’s constitution provides that the maximum number of directors is either a specified number or another number determined by the directors:

(a) any number determined by the directors that is lower than the specified number is a board limit; and

(b) any lowering by the directors of that lower number is also a board limit.

Subsection (2) does not limit, and is not limited by, subsection (1).

The directors must not set a board limit unless:

(a) a resolution (a board limit resolution) approving the proposal to set the limit specified in the resolution has been passed by a general meeting of the company; and

the notice of the meeting set out an intention to propose the board limit resolution and stated the resolution; and

the notice was accompanied by a statement explaining the resolution and meeting the requirements in section 201Q.

Note 1: Subsection 249L(3) requires information in the notice of meeting to be presented clearly, concisely and effectively.

Note 2: Section 201U specifies the consequences of a contravention of subsection (1) of this section. Also, section 1324 provides for injunctions to enforce subsection (1) of this section.

A board limit resolution has effect until immediately before the start of the first AGM of the company after the general meeting by which the resolution was passed.

A board limit resolution does not prevent the appointment of a person as a director of the company by the other directors of the company between general meetings of the company.

However, if a person is appointed by the other directors as a director of the company while a board limit resolution has effect, the company must confirm the appointment by resolution at the company’s next AGM. If the appointment is not confirmed, the person ceases to be a director of the company at the end of the AGM.

Subsections (1), (2) and (4) have effect despite the company’s constitution.

Note: Although subsection (4) is like subsection 201H(3) in many ways, it is not a replaceable rule like subsection 201H(3).

The statement accompanying the notice of a general meeting stating an intention to propose the board limit resolution must be in writing and set out clearly, concisely and effectively:

the directors’ reasons for proposing the board limit resolution; and

all other information that:

is reasonably required by members in order to decide whether or not it is in the company’s interests to pass the proposed board limit resolution; and

is known to the company or to any of its directors.

Note: Section 1309 creates offences where false and misleading material relating to a corporation’s affairs is made available or furnished to members.

This section applies if a poll is duly demanded, or is otherwise required under section 250JA, on the question that the board limit resolution be passed.

For each member of the company who votes on the poll in person, the company must record in writing:

the member’s name; and

how many votes the member casts for the resolution and how many against.

Note: Failure to comply with this subsection is an offence: see subsection 1311(1).

For each member of the company who votes on the poll by proxy, or by a representative authorised under section 250D, the company must record in writing:

the member’s name; and

in relation to each person who votes as proxy, or as such a representative, for the member:

the person’s name; and

how many votes the person casts on the resolution as proxy, or as such a representative, for the member; and

how many of those votes the person casts for the resolution and how many against.

Note: Failure to comply with this subsection is an offence: see subsection 1311(1).

The company must lodge a notice setting out the text of the board limit resolution within 14 days after the resolution is passed.

The Court may declare that a requirement set by section 201Q, 201R or 201S has been satisfied if the Court finds that it has been substantially satisfied.

A declaration may be made only on the application of an interested person.

Application

This section applies if the directors of the company set a board limit in contravention of subsection 201P(1).

Board limit etc. ineffective

The board limit and anything done in reliance on it have no effect for the purposes of:

the company’s constitution; or

this Act, except this section.

Note: If a board limit resolution is not passed, the number of directors of a company that can be appointed (for example by a general meeting) depends on the maximum number of directors specified by the company’s constitution. This is so even if the directors purport to set a board limit despite the fact the board limit resolution was not passed.

If:

one or more directors are appointed by one or more resolutions passed at a particular general meeting of the company; and

because of the board limit, the general meeting was not given the opportunity to pass one or more resolutions appointing a number of directors such that the number of directors of the company would (if those resolutions had been passed) have exceeded the board limit;

every appointment of director made by a resolution passed at the general meeting is invalid.

Note: This subsection does not apply if a shortage of persons consenting to be appointed director was the reason the general meeting was not given the opportunity to pass one or more resolutions appointing a number of directors such that the number of directors of the company would (if those resolutions had been passed) have exceeded the board limit.

Subsections (2) and (3) have effect despite anything else in the company’s constitution or in this Act, except sections 128, 129 and 201M.

Note: Sections 128 and 129 deal with assumptions a person dealing with the company may make, including assumptions about the due appointment of directors. Section 201M deals with effectiveness of acts by a director in circumstances where the director’s appointment is invalid for certain reasons.

Company and candidates for directors may seek compensation

(5) Subsection (6) applies if either of the following (the suffering party) suffers loss or damage because of the setting of the board limit in contravention of subsection 201P(1):

the company;

a person for whom both the following conditions are met:

the person had given the company a written indication that he or she would be a candidate to be appointed director at a general meeting;

because of the board limit, the general meeting was not given the opportunity to consider passing a resolution to appoint the person as director.

The suffering party may institute a proceeding in the Court for the contravention.

Note: Section 1325 deals with the orders the Court may make to compensate the suffering party for the loss.

Contravention does not give rise to an offence

A person is not guilty of an offence because of the contravention.

The directors of a company are to be paid the remuneration that the company determines by resolution.

Note: Chapter 2E makes special provision for the payment of remuneration to the directors of public companies.

The company may also pay the directors’ travelling and other expenses that they properly incur:

in attending directors’ meetings or any meetings of committees of directors; and

in attending any general meetings of the company; and

in connection with the company’s business.

A company must disclose the remuneration paid to each director of the company or a subsidiary (if any) by the company or by an entity controlled by the company if the company is directed to disclose the information by:

members with at least 5% of the votes that may be cast at a general meeting of the company; or

at least 100 members who are entitled to vote at a general meeting of the company.

The company must disclose all remuneration paid to the director, regardless of whether it is paid to the director in relation to their capacity as director or another capacity.

An offence based on subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

The company must comply with the direction as soon as practicable by:

preparing a statement of the remuneration of each director of the company or subsidiary for the last financial year before the direction was given; and

having the statement audited; and

sending a copy of the audited statement to each person entitled to receive notice of general meetings of the company.

A person who is the only director and the only shareholder of a proprietary company is to be paid any remuneration for being a director that the company determines by resolution. The company may also pay the director’s travelling and other expenses properly incurred by the director in connection with the company’s business.

A director of a company may resign as a director of the company by giving a written notice of resignation to the company at its registered office.

When resignation takes effect

A person’s resignation as a director of a company takes effect on:

if, within 28 days after the day the person stopped being a director of the company, ASIC is notified of that fact under subsection 205A(1) or 205B(5)—the day the person stopped being a director of the company; or

in any other case—the day written notice is lodged with ASIC stating that the person has stopped being a director of the company.

Note 1: A director includes a person appointed to the position of alternate director, see the definition of director in section 9.

Note 2: For the application of this section, see Part 10.37.

However, if:

because of paragraph (1)(b), the person’s resignation takes effect on a day that is not the day the person stopped being a director of the company; and

(b) the person or the company applies to ASIC or the Court for it to fix, as the day the person’s resignation takes effect, the day (the resignation day) that the person stopped being a director of the company; and

the application is made in accordance with subsection (5); and

the applicant satisfies ASIC or the Court that the person stopped being a director of the company on the resignation day;

ASIC or the Court may fix the resignation day as the day the person’s resignation takes effect.

The Court must not fix the resignation day as the day the person’s resignation takes effect unless it is satisfied that it is just and equitable to do so.

ASIC must not fix the resignation day as the day the person’s resignation takes effect unless it has had regard to:

any conduct, act, omission or representation of the applicant in relation to notifying ASIC of the resignation; and

the reasons for any delay in notifying ASIC of the resignation.

Application to ASIC or the Court

For the purposes of paragraph (2)(c), the application:

if made to ASIC—must:

be made within 56 days after the day the person stopped being a director of the company; and

be lodged in the prescribed form; or

if made to the Court—must be made within either:

12 months after the day the person stopped being a director of the company; or

such longer period as the Court allows.

Notification to ASIC

If the Court fixes the resignation day as the day the person’s resignation takes effect, the applicant must, within 2 business days after the Court fixes the resignation day, lodge with ASIC a copy of the order made by the Court that fixes the day.

An offence based on subsection (6) is an offence of strict liability.

Note: For strict liability, see Criminal Code.section 6.1 of the

Company must be left with at least 1 director

This section has effect subject to section 203AB.

The resignation of a director of a company does not take effect if, at the end of the day that the resignation is to take effect, the company does not have at least one director.

Note: For the application of this section, see Part 10.37.

However, subsection (1) does not prevent the resignation of a director of a company taking effect if the resignation is to take effect on or after the day that the winding up of the company is taken, because of Division 1A of Part 5.6, to have begun.

A person ceases to be a director of a company if the person becomes disqualified from managing corporations under Part 2D.6 (see subsection 206A(2)) unless ASIC or the Court allows them to manage the company (see sections 206GAB and 206G).

A proprietary company:

may by resolution remove a director from office; and

may by resolution appoint another person as a director instead.

A resolution by members of a proprietary company to remove a director of the company is void if, at the end of the day that the resolution is to take effect, the company does not have at least one director.

Note: For the application of this section, see Part 10.37.

However, subsection (1) does not affect the validity of a resolution by members of a proprietary company to remove a director of the company if the resolution is to take effect on or after the day that the winding up of the company is taken, because of Division 1A of Part 5.6, to have begun.

Resolution for removal of director

A public company may by resolution remove a director from office despite anything in:

the company’s constitution (if any); or

an agreement between the company and the director; or

an agreement between any or all members of the company and the director.

If the director was appointed to represent the interests of particular shareholders or debenture holders, the resolution to remove the director does not take effect until a replacement to represent their interests has been appointed.

Notice of intention to move resolution for removal of director

Note: See sections 249C to 249G for the rules on who may call meetings, sections 249H to 249M on how to call meetings and sections 249N to 249Q for rules on members’ resolutions.

Notice of intention to move the resolution must be given to the company at least 2 months before the meeting is to be held. However, if the company calls a meeting after the notice of intention is given under this subsection, the meeting may pass the resolution even though the meeting is held less than 2 months after the notice of intention is given.

Note: Short notice of the meeting cannot be given for this resolution (see subsection 249H(3)).

Director to be informed

The company must give the director a copy of the notice as soon as practicable after it is received.

Director’s right to put case to members

The director is entitled to put their case to members by:

giving the company a written statement for circulation to members (see subsections (5) and (6)); and

speaking to the motion at the meeting (whether or not the director is a member of the company).

The written statement is to be circulated by the company to members by:

sending a copy to everyone to whom notice of the meeting is sent if there is time to do so; or

if there is not time to comply with paragraph (a)—having the statement distributed to members attending the meeting and read out at the meeting before the resolution is voted on.

The director’s statement does not have to be circulated to members if it is more than 1,000 words long or defamatory.

Time of retirement

If a person is appointed to replace a director removed under this section, the time at which:

the replacement director; or

any other director;

is to retire is to be worked out as if the replacement director had become director on the day on which the replaced director was last appointed a director.

Strict liability offences

An offence based on subsection (3) or (5) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

A resolution, request or notice of any or all of the directors of a public company is void to the extent that it purports to:

remove a director from their office; or

require a director to vacate their office.

A person ceases to be managing director if they cease to be a director.

The directors may revoke or vary an appointment of a managing director.