2004-2005-2006-2007 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Corporations (NZ Closer Economic Relations) and Other Legislation Amendment Bill 2007 No. , 2007 (Treasury) A Bill for an Act to amend the law in relation to corporations and trade practices, and for other purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 3 Schedule 1--Mutual recognition of securities offers 4 Corporations Act 2001 4 Schedule 2--Recognition of companies 30 Corporations Act 2001 30 Schedule 3--Protection of information obtained by the Australian Competition and Consumer Commission 32 Radiocommunications Act 1992 32 Trade Practices Act 1974 32 [Page Break] 1 corporations and trade practices, and for other 2 purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Corporations (NZ Closer Economic 6 Relations) and Other Legislation Amendment Act 2007. 7 2 Commencement 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 13 Corporations (NZ Closer Economic Relations) and Other Legislation Amendment Bill 2007 No. , 2007 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1, A single day to be fixed by Proclamation. items 1 to 18 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 3. Schedule 1, Immediately after the provision(s) covered item 19 by table item 2. However, if the provision(s) covered by table item 2 commence before the provision(s) covered by table item 6, the provision(s) covered by this table item do not commence at all. 4. Schedule 1, At the same time as the provision(s) covered item 20 by table item 2. However, if the provision(s) covered by table item 6 commence before or at the same time as the provision(s) covered by table item 2, the provision(s) covered by this table item do not commence at all. 5. Schedule 1, At the same time as the provision(s) covered items 21 and 22 by table item 2. 6. Schedule 2 A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 7. Schedule 3 The 28th day after the day on which this Act receives the Royal Assent. B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 passed by both Houses of the Parliament and assented to. It will not be 2 expanded to deal with provisions inserted in this Act after assent. 3 (2) Column 3 of the table contains additional information that is not 4 part of this Act. Information in this column may be added to or 5 edited in any published version of this Act. 6 3 Schedule(s) 7 Each Act that is specified in a Schedule to this Act is amended or 8 repealed as set out in the applicable items in the Schedule 9 concerned, and any other item in a Schedule to this Act has effect 10 according to its terms. 11 [Page Break] Schedule 1--Mutual recognition of securities 2 offers 3 4 Corporations Act 2001 5 1 Section 9 (after paragraph (b) of the definition of debenture) 6 Insert: 7 Note: This paragraph has an extended meaning in relation to Chapter 8 8 (see subsection 1200A(2)). 9 2 Section 9 (after paragraph (c) of the definition of managed 10 investment scheme) 11 Insert: 12 Note: This paragraph has an extended meaning in relation to Chapter 8 13 (see subsection 1200A(3)). 14 3 Section 9 (after paragraph (i) of the definition of managed 15 investment scheme) 16 Insert: 17 Note: This paragraph has an extended meaning in relation to Chapter 8 18 (see subsection 1200A(3)). 19 4 Section 9 20 Insert: 21 recognised offer has the meaning given by section 1200B. 22 5 Section 111AF 23 Before "Securities", insert "(1)". 24 Note: The heading to section 111AF is altered by omitting "to which lodged or deemed 25 prospectus relates" and substituting "held by 100 or more persons". 26 6 At the end of section 111AF 27 Add: 28 (2) Securities (except debentures and managed investment products) in 29 a class of securities of a body are ED securities if securities in that 30 class have been issued under a recognised offer and the offeror's 31 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 jurisdiction have held securities in that class (whether or not as a 2 result of the recognised offer) at all times since the issue. 3 7 Section 111AFA 4 Before "Managed", insert "(1)". 5 8 At the end of section 111AFA 6 Add: 7 (2) Interests in a class of interests in a managed investment scheme 8 issued by a body are ED securities if interests in that class have 9 been issued under a recognised offer and the offeror's records 10 indicate that 100 or more people who reside in this jurisdiction 11 have held interests in that class (whether or not as a result of the 12 recognised offer) at all times since the issue. 13 9 Section 111AI 14 Repeal the section, substitute: 15 111AI Debentures 16 Debentures of a borrower are ED securities if: 17 (a) section 283AA requires the borrower to appoint a trustee; or 18 (b) section 283AA does not apply to the borrower only because 19 the offer of the debentures to which section 283AA would 20 otherwise have applied is a recognised offer. 21 10 At the end of subsection 675(2) 22 Add: 23 Note 4: Subsection (2) has an extended operation in relation to disclosing 24 entities that have made recognised offers of securities under Chapter 8 25 (see section 1200K). 26 11 At the end of subsection 734(4) 27 Add: 28 Note: Subsection (4) has an extended operation in relation to recognised 29 offers under Chapter 8 (see subsection 1200L(1)). 30 12 At the end of subsection 734(5) 31 [Page Break] 1 Note: Subsection (5) has an extended operation in relation to recognised 2 offers under Chapter 8 (see subsection 1200L(2)). 3 13 At the end of subsection 734(6) 4 Add: 5 Note: Subsection (6) has an extended operation in relation to recognised 6 offers under Chapter 8 (see subsection 1200L(3)). 7 14 Subsection 1018A(2) (note) 8 Omit "Note", substitute "Note 1". 9 15 At the end of subsection 1018A(2) 10 Add: 11 Note 2: Subsection (2) has an extended operation in relation to recognised 12 offers under Chapter 8 (see subsection 1200L(4)). 13 16 Subsection 1018A(3) (note) 14 Omit "Note", substitute "Note 1". 15 17 At the end of subsection 1018A(3) 16 Add: 17 Note 2: Subsection (3) has an extended operation in relation to recognised 18 offers under Chapter 8 (see subsection 1200L(5)). 19 18 After Chapter 7 20 Insert: 21 Chapter 8--Mutual recognition of securities 22 offers 23 Part 8.1--Preliminary 24 25 1200A Definitions 26 (1) In this Chapter: 27 foreign recognition scheme means the provisions of a law of a 28 recognised jurisdiction that are prescribed by the regulations as 29 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 Chapter. 2 law of a recognised jurisdiction includes law of part of a 3 recognised jurisdiction. 4 offer securities includes: 5 (a) invite applications for the issue of securities; and 6 (b) invite offers to purchase securities. 7 offeror, of securities, means: 8 (a) in relation to an offer of a kind prescribed by the 9 regulations--a person of a kind prescribed by the regulations; 10 and 11 (b) otherwise--the person who has the capacity, or who agrees, 12 to issue or transfer the securities if the offer is accepted. 13 recognised jurisdiction means a foreign country prescribed by the 14 regulations as a recognised jurisdiction. 15 recognised offer has the meaning given by section 1200B. 16 securities means: 17 (a) a share in a body; or 18 (b) a debenture of a body; or 19 (c) an interest in a managed investment scheme; or 20 (d) a legal or equitable right or interest in a security or interest 21 covered by paragraph (a), (b) or (c); or 22 (e) an option to acquire, by way of issue, an interest or right 23 covered by paragraph (a), (b), (c) or (d). 24 (2) For the purposes of this Chapter, paragraph (b) of the definition of 25 debenture in section 9 is taken to include a reference to an 26 undertaking by an institution, authorised by or under the law of a 27 recognised jurisdiction as a deposit-taking institution (however 28 described), to repay money deposited with it, or lent to it, in the 29 ordinary course of its banking business. 30 (3) For the purposes of this Chapter: 31 (a) paragraph (c) of the definition of managed investment 32 scheme in section 9 is taken to include a reference to a 33 partnership that, if this Act applied to it, would not need to be 34 [Page Break] 1 regulations made for the purposes of subsection 115(2); and 2 (b) paragraph (i) of the definition of managed investment 3 scheme in section 9 is taken to include a reference to a 4 scheme operated by an institution, authorised by or under the 5 law of a recognised jurisdiction as a deposit-taking institution 6 (however described), in the ordinary course of its banking 7 business. 8 Part 8.2--Foreign offers that are recognised in this 9 jurisdiction 10 Division 1--Recognised offers 11 1200B When an offer is a recognised offer 12 (1) An offer of securities becomes a recognised offer, in relation to a 13 recognised jurisdiction, on the day the offer is first made in this 14 jurisdiction, if the conditions in section 1200C are met in relation 15 to the offer on that day. 16 (2) The offer continues to be a recognised offer after that day, even if a 17 condition in section 1200C ceases to be met after that day. 18 (3) If, at the time an offer is first made in this jurisdiction, the offer 19 would be a recognised offer but for a failure to meet the condition 20 in subsection 1200C(5) or (6) that ASIC is satisfied is minor or 21 technical, ASIC may declare in writing that the offer is a 22 recognised offer within the meaning of subsection (1). 23 (4) If ASIC makes a declaration under subsection (3) in relation to an 24 offer, the condition is taken to have been met at the time the offer 25 was first made in this jurisdiction. 26 (5) A declaration under subsection (3) is not a legislative instrument. 27 1200C Conditions that must be met to be a recognised offer 28 (1) For the purposes of subsection 1200B(1), the conditions that must 29 be met are those set out in this section. 30 (2) The person offering the securities must be: 31 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 jurisdiction; or 2 (b) a natural person resident in the recognised jurisdiction; or 3 (c) a legal person established by or under the law of the 4 recognised jurisdiction; or 5 (d) a person of a kind prescribed by regulations made in relation 6 to the recognised jurisdiction for the purposes of this 7 paragraph. 8 (3) The person offering the securities must not be banned under 9 section 1200P. 10 (4) The offer must be an offer of a kind prescribed by the regulations 11 in relation to the recognised jurisdiction. 12 (5) At least 14 days before the day on which the offer is first made in 13 this jurisdiction, the person making the offer must have lodged 14 with ASIC: 15 (a) a notice in the prescribed form (if any) of the person's 16 intention to make a recognised offer; and 17 (b) the documents and information required to be lodged under 18 section 1200D. 19 (6) If: 20 (a) before the offer is first made in this jurisdiction; and 21 (b) after a document or information was lodged with ASIC under 22 section 1200D; 23 either: 24 (c) an event of a kind mentioned in the table in subsection 25 1200G(9) happened; or 26 (d) the address for service in this jurisdiction of the person 27 proposing to offer the securities changed; 28 the person making the offer must have lodged with ASIC: 29 (e) if paragraph (c) applies--the document or information that 30 would have been required to have been lodged under 31 subsection 1200G(9) for the event if that subsection had 32 applied; and 33 (f) if paragraph (d) applies--the changed address for service. 34 [Page Break] 1 (1) For the purposes of paragraph 1200C(5)(b), the documents and 2 information required to be lodged under this section are: 3 (a) any offer document required by the law of the recognised 4 jurisdiction; and 5 (b) the warning statement that is to be included with an offer 6 document in this jurisdiction (which, if regulations are in 7 force for the purposes of section 1200E, must comply with 8 those regulations); and 9 (c) unless paragraph (d) applies--the constitution of the body 10 whose securities are to be the subject of the offer; and 11 (d) if the securities that are to be the subject of the offer are 12 interests in a managed investment scheme, rights or interests 13 in such interests, or options to acquire such interests by way 14 of issue--the constituent document of the scheme; and 15 (e) details, in the prescribed form (if any), of any exemption 16 from the securities law of the recognised jurisdiction that 17 applies, but not exclusively, to the offer or to the offeror in 18 relation to the offer; and 19 (f) if the offeror is relying on subsection (2)--notice of the 20 document or information that is not being lodged because of 21 the offeror's reliance on that subsection; and 22 (g) an address for service in this jurisdiction, in the prescribed 23 form (if any); and 24 (h) a copy of any exemption from the securities law of the 25 recognised jurisdiction that applies exclusively to the offer or 26 to the offeror; and 27 (i) any other documents or information prescribed by the 28 regulations. 29 (2) For the purposes of this Chapter, a person is taken to have lodged a 30 document or information under this section if: 31 (a) the document or information has been lodged under 32 Division 2 or 3 of Part 5B.2; or 33 (b) the document or information is not required to be lodged 34 because of section 601CDA or 601CTA. 35 (3) For the purposes of this Chapter, a person is taken to have lodged a 36 document or information under this section if the person lodged the 37 document or information in compliance with subsection 1200C(6). 38 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 The regulations may, in relation to offer documents used in this 2 jurisdiction for recognised offers, prescribe either or both of the 3 following: 4 (a) statements to be included with those documents that relate to 5 the status of an offer as a recognised offer and the laws that 6 regulate the offer; 7 (b) details to be given in statements to be included with those 8 documents that relate to the status of an offer as a recognised 9 offer and the laws that regulate the offer. 10 Division 2--Effect of a recognised offer 11 1200F Effect of a recognised offer 12 (1) The provisions listed in the table do not apply, in relation to a 13 recognised offer, to the things specified in the table for those 14 provisions. 15 Note: Recognised offers must comply with Division 3 instead. 16 17 Provisions that do not apply in relation to a recognised offer Item These provisions: do not apply, in relation to the offer, to: 1 Chapter 2L if the recognised offer is an offer of debentures-- the offeror. 2 Chapter 5C if the recognised offer is an offer of interests in a managed investment scheme--the operator of the managed investment scheme. (a) the recognised offer; or 3 Chapter 6D, other than sections 736 and 738 (b) the offeror of the recognised offer; or (c) any offer document for the offer. [Page Break] Item These provisions: do not apply, in relation to the offer, to: (a) the issue or disposal of a security under the 4 Parts 7.6, 7.7 and 7.8, recognised offer; or other than section 992AA (b) general advice (within the meaning of Chapter 7) contained in any offer document for the offer; or (c) general advice contained in an advertisement for the recognised offer issued by, or on behalf of, the offeror; or (d) the provision of a custodial or depository service (within the meaning of Chapter 7) in relation to interests in a managed investment scheme that are the subject of the recognised offer. 5 Part 7.9, other than the offeror of the recognised offer. sections 1020B and 1020C 1 (2) Despite subsection (1), the regulations may: 2 (a) apply a provision listed in the table in subsection (1) to a 3 person or class of persons; or 4 (b) apply a provision listed in the table in subsection (1) to a 5 security or class of securities; or 6 (c) provide that a provision listed in the table in subsection (1) 7 applies with the modifications specified in the regulations. 8 Division 3--Ongoing conditions for recognised offers 9 1200G Offering conditions 10 When the offering conditions apply 11 (1) The offering conditions in this section apply in relation to a 12 recognised offer until the recognised offer closes in this 13 jurisdiction. 14 Note: Failure to comply with an offering condition is an offence (see 15 sections 1200Q and 1311). 16 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 (2) The offer must be made in the recognised jurisdiction as well as in 2 this jurisdiction. 3 (3) The offeror must meet the conditions in subsections 1200C(2) and 4 (3). 5 (4) The offer must meet the condition in subsection 1200C(4). 6 (5) The offer must comply with the law of the recognised jurisdiction. 7 (6) There must be no person concerned in the management of the 8 offeror: 9 (a) who is disqualified from managing corporations for the 10 purposes of Part 2D.6; or 11 (b) who is disqualified from being concerned in the management 12 of the offeror under the law of the recognised jurisdiction; or 13 (c) who is subject to a banning order under section 920A; or 14 (d) who is subject to a court order under paragraph 921A(2)(a). 15 (7) An offer document provided to a person in this jurisdiction must 16 have included with it: 17 (a) the warning statement lodged under subsection 1200D(1) for 18 that offer document; or 19 (b) if a changed warning statement is lodged with ASIC under 20 subsection 1200G(9)--the changed warning statement. 21 (8) The offeror must, on request by a person in this jurisdiction, 22 provide a copy of the constitution or constituent document lodged 23 under paragraph 1200D(1)(c) or (d). 24 (9) If an event mentioned in an item of this table occurs in relation to 25 the offer or offeror, the offeror must lodge with ASIC the 26 document, statement or notice specified in the table for that event, 27 by the time specified for that event. 28 29 [Page Break] Item If: the offeror must lodge by this time: with ASIC: 1 a change is made to an a copy of the document no later than 7 days offer document, or any as changed after the day on which other document, the offeror notified (or required by the law of should have notified) the recognised the home regulator of jurisdiction in relation the change. to the offer 2 a change is made to the a copy of the warning no later than 7 days warning statement that statement as changed after the day on which is included with the the offeror notified (or offer document in this should have notified) jurisdiction the home regulator of the change. 3 a supplementary or a copy of the no later than 7 days replacement offer supplementary or after the day on which document is required replacement offer the supplementary or by the law of the document replacement offer recognised jurisdiction document is (or should have been) lodged with the home regulator. 4 a change is made to the a copy of the no later than 7 days constitution or constitution or after the day on which constituent document constituent document the offeror notified (or lodged under paragraph as changed should have notified) 1200D(1)(c) or (d) the home regulator of the change. 5 the home regulator written notice in the no later than 14 days makes, changes or prescribed form (if after the making, revokes an exemption any) of the details of change or revocation that applies, but not the exemption, change occurs. exclusively, to the offer or revocation or the offeror under the law of the recognised jurisdiction B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] Item If: the offeror must lodge by this time: with ASIC: 6 the home regulator a copy of the no later than 7 days makes, changes or exemption, the after the making, revokes an exemption exemption as changed, change or revocation that applies exclusively or notice in the occurs. to the offer or the prescribed form (if offeror under the law any) of the details of of the recognised the revocation jurisdiction 7 the home regulator written notice in the no later than 7 days begins enforcement prescribed form (if after the action is taken action, or exercises a any) of the details of or the power is power it has under law, the action taken or exercised. in relation to the power exercised offeror or offer 1 (10) For the purposes of this Chapter, a person is taken to have lodged a 2 document under subsection (9) if: 3 (a) the document has been lodged under Division 2 or 3 of 4 Part 5B.2; or 5 (b) the document is not required to be lodged because of 6 section 601CDA or 601CTA. 7 (11) If: 8 (a) an event mentioned in the table in subsection (9) occurs 9 while the offering conditions in this section apply; and 10 (b) the time by which an offeror is required to lodge a document, 11 statement or notice with ASIC because of that event is after 12 the offering conditions cease to apply; 13 then, for the purposes of this section and paragraph 1200Q(1)(b), 14 the offering conditions are taken to continue to apply until that 15 time in relation to the offer to the extent necessary to require the 16 offeror to lodge the document, statement or information by that 17 time. 18 (12) The offer must meet any other conditions prescribed by the 19 regulations. 20 [Page Break] 1 (13) For the purposes of subsection (9), the home regulator for a 2 recognised jurisdiction is an authority in the recognised jurisdiction 3 whose functions under the law of the recognised jurisdiction 4 include functions equivalent to any of those of ASIC under this Act 5 and that is prescribed by the regulations as the home regulator for 6 that jurisdiction. 7 (14) If there is more than one authority in a recognised jurisdiction 8 whose functions include functions under the law of the recognised 9 jurisdiction equivalent to any of those of ASIC under this Act and 10 that is prescribed under subsection (4), the regulations may 11 prescribe the matters in relation to which that authority is to be 12 regarded as the home regulator. 13 1200H Address for service condition 14 When the address for service condition applies 15 (1) The address for service condition in this section applies in relation 16 to a recognised offer: 17 (a) until the end of the last day on which a person who resides in 18 this jurisdiction could acquire securities under the offer; and 19 (b) if a person who resides in this jurisdiction acquires securities 20 under the offer--at all times when the offeror's records 21 indicate that someone who resides in this jurisdiction holds 22 securities in the class of securities that was the subject of the 23 recognised offer. 24 Note: Failure to comply with the address for service condition is an offence 25 (see sections 1200Q and 1311). 26 Address for service condition 27 (2) The offeror must lodge with ASIC written notice, in the prescribed 28 form (if any), of any change in its address for service in this 29 jurisdiction, no later than the end of the seventh day after the day 30 on which the address changed. 31 (3) If: 32 (a) the offeror's address for service in this jurisdiction changes 33 while the address for service condition in this section applies; 34 and 35 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 ASIC because of the change is after the address for service 2 condition ceases to apply; 3 then, for the purposes of this section and subparagraph 4 1200Q(2)(b)(i), the address for service condition is taken to 5 continue to apply until that time to the extent necessary to require 6 the offeror to lodge notice by that time. 7 1200J Dispute resolution condition 8 When the dispute resolution condition applies 9 (1) The dispute resolution condition in this section applies, to a person 10 who is or who has been the offeror of a recognised offer, at all 11 times when the person's records indicate that someone who resides 12 in this jurisdiction holds securities in the class of securities that 13 was the subject of the recognised offer. 14 Note: Failure to comply with the dispute resolution condition is an offence 15 (see sections 1200Q and 1311). 16 Dispute resolution condition 17 (2) The person must have a dispute resolution process that complies 18 with subsection 1017G(2), if the recognised offer was an offer of: 19 (a) interests in a managed investment scheme; or 20 (b) rights or interests in such interests, or options to acquire such 21 interests by way of issue. 22 Exemption from the dispute resolution condition 23 (3) ASIC may, on application by a person in the prescribed form (if 24 any), grant the person an exemption from the dispute resolution 25 condition in this section, subject to any conditions specified in the 26 exemption. 27 (4) If ASIC grants a person an exemption under subsection (3), then, 28 for the purposes of this Chapter, the person is taken to comply with 29 the dispute resolution condition in this section for so long as the 30 exemption is in force. 31 (5) ASIC may, in relation to an exemption under subsection (3): 32 (a) vary, or impose, a condition in relation to the exemption; or 33 [Page Break] 1 (6) A variation, imposition or revocation under subsection (5) takes 2 effect: 3 (a) if the person has an address for service in this jurisdiction-- 4 when it is served on the person at that address; or 5 (b) if the person does not have an address for service in this 6 jurisdiction--on publication in the Gazette. 7 Division 4--Modification of provisions of this Act 8 1200K Additional operation of section 675 (continuous disclosure) 9 In relation to a disclosing entity that has been the offeror of a 10 recognised offer, section 675 also has the operation it would have 11 if paragraph 675(2)(c) were replaced by the following paragraph: 12 (c) the information is not required, by the law of the recognised 13 jurisdiction to which the offer relates, to be included in a 14 supplementary or replacement offer document; and 15 1200L Pre-offer advertising 16 Offers that need a disclosure document 17 (1) Subsection 734(4) also has the operation it would have if: 18 (a) the reference in that subsection to a disclosure document that 19 has been lodged with ASIC were a reference to an offer 20 document lodged with ASIC for the purposes of this Chapter; 21 and 22 (b) the reference in that subsection to section 739 were a 23 reference to section 1200N. 24 (2) Subsection 734(5) also has the operation it would have if: 25 (a) references in that subsection to a disclosure document were 26 references to an offer document that complies with the law of 27 a recognised jurisdiction; and 28 (b) references in that subsection to completing an application 29 form were references to completing an application process 30 under the law of that recognised jurisdiction. 31 (3) Subsection 735(6) also has the operation it would have if: 32 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 references to an offer document lodged with ASIC for the 2 purposes of this Chapter; and 3 (b) references in that subsection to completing an application 4 form were references to completing an application process 5 under the law of the recognised jurisdiction to which the 6 offer relates. 7 Offers that need a Product Disclosure Statement 8 (4) Subsection 1018A(2) also has the operation it would have if: 9 (a) a reference in that subsection to a Product Disclosure 10 Statement were a reference to an offer document that 11 complies with the law of a recognised jurisdiction; and 12 (b) a reference in that subsection to sale offers to which 13 section 1012C will apply were a reference to sale offers to 14 which section 1012C would apply if the financial product, 15 when made available, were not made available under a 16 recognised offer. 17 (5) Subsection 1018A(3) also has, in relation to subsection 1018A(2), 18 the operation it would have if: 19 (a) the reference in that subsection to a Product Disclosure 20 Statement were a reference to an offer document that 21 complies with the law of a recognised jurisdiction; and 22 (b) the reference to section 1020E were a reference to 23 section 1200N. 24 1200M Modification by the regulations 25 The regulations may modify a provision of this Act in relation to 26 its application in respect of a recognised offer or a proposed offer 27 of securities that may become a recognised offer. 28 Division 5--ASIC's powers in relation to recognised offers 29 1200N Stop orders 30 (1) If, in relation to a thing mentioned in an item of this table, ASIC is 31 satisfied of the matters specified in the table item for that thing, 32 ASIC may make either or both of the orders specified in the table 33 item about that thing. 34 [Page Break] Stop orders Item If, in relation to: ASIC is satisfied that: ASIC may order: (a) an offer document (a) that no offers, 1 there is a misleading or lodged under issues, sales or deceptive statement in, 1200D(1)(a); or transfers of the or a material omission securities to which from, the document, (b) a warning statement the document, statement or lodged under statement or information paragraph information relates 1200D(1)(b); or be made while the (c) a document or order is in force; information lodged (b) that specified under paragraph conduct in respect 1200D(1)(i) of those securities, or in respect of the document, statement or information, must not be engaged in while the order is in force. (a) that no offers, 2 a document, statement the change results in issues, sales or or notice lodged under there being a transfers of the subsection 1200G(9) misleading or securities to which deceptive statement in, the document, or a material omission statement or notice from, the document, relates be made statement or notice while the order is in force; (b) that specified conduct in respect of those securities, or in respect of the document, statement or notice, must not be engaged in while the order is in force. B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] Item If, in relation to: ASIC is satisfied that: ASIC may order: (a) an advertisement of (a) that no offers, 3 there is a misleading or securities the issues, sales or deceptive statement in, subject of a transfers of the or a material omission recognised offer; or securities to which from, the the advertisement advertisement or (b) a published or statement relates statement statement that is be made while the reasonably likely to order is in force; induce people to acquire securities (b) that specified the subject of a conduct in respect recognised offer of those securities, or in respect of the advertisement or statement, must not be engaged in while the order is in force. (a) that no offers, 4 an offer document a new circumstance has issues, sales or lodged under paragraph arisen since lodgment transfers of the 1200D(1)(a) and that circumstance securities to which would have been the document required by the law of relates be made the recognised while the order is in jurisdiction to be force; included in the offer (b) that specified document, if the conduct in respect circumstance had of those securities, arisen before the or in respect of the document was lodged document, must not with the home be engaged in while regulator (as defined in the order is in force. subsection 1200G(13)) [Page Break] Item If, in relation to: ASIC is satisfied that: ASIC may order: (a) that no offers, 5 a notice of intention to one or more of the issues, sales or make a recognised requirements in transfers of the offer lodged under section 1200C is not securities that are paragraph 1200C(5)(a) met in relation to the proposed to be proposed offer offered be made while the order is in force; (b) that specified conduct in respect of those securities must not be engaged in while the order is in force. (a) that no offers, 6 a recognised offer an offering condition in issues, sales or section 1200G, the transfers of the address for service securities be made condition in while the order is in section 1200H or the force; dispute resolution (b) that specified condition in conduct in respect section 1200J is not of those securities being met must not be engaged in while the order is in force. 1 (2) The order may include a statement that specified conduct engaged 2 in contrary to the order will be regarded as not meeting a specified 3 ongoing condition in Division 3. 4 (3) Before making an order under subsection (1), ASIC must: 5 (a) hold a hearing; and 6 (b) give a reasonable opportunity to any interested people to 7 make oral or written submissions to ASIC on whether an 8 order should be made. 9 (4) If ASIC considers that any delay in making an order under 10 subsection (1) pending the holding of a hearing would be 11 prejudicial to the public interest, ASIC may make an interim order. 12 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 for 21 days after the day on which it is made unless revoked before 2 then. 3 (5) At any time during the hearing, ASIC may make an interim order. 4 The interim order lasts until: 5 (a) ASIC makes an order under subsection (1) after the 6 conclusion of the hearing; or 7 (b) the interim order is revoked; 8 whichever happens first. 9 (6) An order under subsection (1), (4) or (5) must be in writing and 10 must be served on the person who is ordered not to offer, issue, sell 11 or transfer securities or not to engage in specified conduct. 12 (7) The person on whom the order is served must take reasonable steps 13 to ensure that other people who engage in conduct to which the 14 order applies are aware of the order. 15 Note: Failure to comply with this subsection is an offence (see subsection 16 1311(1)). 17 (8) The person on whom the order is served, or a person who is aware 18 of the order, must not engage in conduct contrary to the order. 19 Note: Failure to comply with this subsection is an offence (see subsection 20 1311(1)). 21 (9) A statement under subsection (2) has effect accordingly in relation 22 to a person on whom the order is served, or who is aware of it, who 23 engages in conduct contrary to the order. This applies in addition to 24 any other consequence that is provided for in this Act. 25 1200P Ban on making subsequent recognised offers 26 (1) ASIC may declare in writing that a person is, for the time specified 27 in the declaration (which must be no longer than 5 years from the 28 day the declaration takes effect), banned from making a recognised 29 offer if: 30 (a) the person, or an associate of the person, has been convicted 31 (whether or not in this jurisdiction) of an offence constituted 32 by conduct engaged in in relation to a recognised offer; or 33 (b) a court in this jurisdiction has made a civil penalty order 34 against the person, or an associate of the person, for a 35 contravention in relation to a recognised offer; or 36 [Page Break] 1 the person, or an associate of the person, for a contravention 2 of the law of the recognised jurisdiction (other than an 3 offence) in relation to an offer that is a recognised offer in 4 this jurisdiction. 5 (2) Before making the declaration, ASIC must give the person an 6 opportunity: 7 (a) to appear, or be represented, at a hearing before ASIC that 8 takes place in private; or 9 (b) to make submissions to ASIC on the matter. 10 This subsection does not apply if the person does not have an 11 address for service in this jurisdiction. 12 (3) ASIC may, in writing, vary or cancel the declaration, on ASIC's 13 own initiative or on application lodged by the person in the 14 prescribed form (if any) together with any prescribed documents, if 15 ASIC is satisfied that a circumstance on which ASIC based the 16 declaration has changed. 17 (4) If ASIC proposes to reject an application by the person to vary or 18 cancel the declaration, ASIC must give the person an opportunity: 19 (a) to appear, or be represented, at a hearing before ASIC that 20 takes place in private; or 21 (b) to make submissions to ASIC on the matter. 22 (5) The declaration, and any variation or cancellation of the 23 declaration, takes effect: 24 (a) if the person to whom the declaration applies has an address 25 for service in this jurisdiction--when it is served on the 26 person at that address; or 27 (b) if the person to whom the declaration applies does not have 28 an address for service in this jurisdiction--when it is 29 published in the Gazette under subsection (7). 30 (6) A declaration that is served on a person under paragraph (5)(a) 31 must be accompanied by a statement of ASIC's reasons for the 32 declaration. 33 (7) ASIC must publish a notice in the Gazette as soon as practicable 34 after making, varying or cancelling the declaration. The notice: 35 (a) must state when the action takes or took effect; and 36 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 the declaration; and 2 (c) in the case of the varying of a declaration--set out a copy of 3 the declaration as varied. 4 (8) A declaration under this section is not a legislative instrument. 5 1200Q Offence of breaching an ongoing condition 6 (1) A person commits an offence if, at any particular time: 7 (a) the person is the offeror of a recognised offer; and 8 (b) an offering condition in section 1200G applies in relation to 9 the offer; and 10 (c) the condition is not met in relation to the offer. 11 (2) A person commits an offence if: 12 (a) the person is or has been the offeror of a recognised offer; 13 and 14 (b) at any particular time: 15 (i) the address for service condition in section 1200H; or 16 (ii) the dispute resolution condition in section 1200J; 17 applies in relation to the offer; and 18 (c) the condition is not met in relation to the offer. 19 Division 6--Miscellaneous 20 1200R Service of documents 21 (1) For the purposes of any law, a document may be served on a 22 person who is, or who has been, the offeror of a recognised offer 23 by leaving it at, or posting it to, the person's address for service in 24 this jurisdiction. 25 (2) The person's address for service in this jurisdiction is: 26 (a) the address lodged under paragraph 1200D(1)(g); or 27 (b) if a change to that address has been lodged with ASIC under 28 section 1200H--the changed address, on and from the later 29 of: 30 (i) the day that is 7 days after the day on which the change 31 (or, if more than one change has been lodged, the latest 32 change) was lodged; or 33 [Page Break] 1 which the change is to take effect. 2 (3) This section does not affect: 3 (a) any other provision of this Act, or any provision of another 4 law, that permits a document to be served in a different way; 5 or 6 (b) the power of a court to authorise a document to be served in a 7 different way. 8 (4) This section does not apply in relation to a person who is, or who 9 has been, the offeror of a recognised offer if the address for service 10 condition in section 1200H does not apply to the person. 11 Part 8.3--Offers made under foreign recognition 12 schemes 13 14 1200S Notice to ASIC 15 If: 16 (a) a body proposes to make an offer of securities in a recognised 17 jurisdiction under a foreign recognition scheme; and 18 (b) under the foreign recognition scheme, the offer is to be 19 regulated by the law of this jurisdiction; 20 the body must lodge with ASIC written notice, in the prescribed 21 form (if any), of its intention to make the offer under the foreign 22 recognition scheme, no later than the time it notifies the recognised 23 jurisdiction of that intention. 24 Note: Failure to comply with this subsection is an offence (see subsection 25 1311(1)). 26 1200T Extension of this Act to recognised jurisdictions 27 (1) If: 28 (a) a body proposes to make, or is making, an offer of securities 29 in a recognised jurisdiction under a foreign recognition 30 scheme; and 31 (b) under the foreign recognition scheme, the offer is to be 32 regulated by the law of this jurisdiction; 33 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 offer as if it were an offer being made in this jurisdiction. 2 (2) Despite subsection (1), the regulations may: 3 (a) exempt a person or class of persons from all or specified 4 provisions of this Act as it applies by force of subsection (1); 5 or 6 (b) exempt a security or a class of securities from all or specified 7 provisions of this Act as it applies by force of subsection (1); 8 or 9 (c) provide that a provision of this Act as it applies by force of 10 subsection (1) applies with the modifications specified in the 11 regulations. 12 1200U ASIC stop order for advertising in a recognised jurisdiction 13 (1) If ASIC is satisfied that: 14 (a) an offer of securities is being made or has been made in a 15 recognised jurisdiction under a foreign recognition scheme; 16 and 17 (b) there is a contravention of section 734 or 1018A (as they 18 apply by force of section 1200T) constituted by conduct in 19 the recognised jurisdiction in relation to the offer; 20 ASIC may order that no offers, issues, sales or transfers of the 21 securities the subject of the offer be made in the recognised 22 jurisdiction while the order is in force. 23 (2) Before making an order under subsection (1), ASIC must: 24 (a) hold a hearing; and 25 (b) give a reasonable opportunity to any interested people to 26 make oral or written submissions to ASIC on whether an 27 order should be made. 28 (3) If ASIC considers that any delay in making an order under 29 subsection (1) pending the holding of a hearing would be 30 prejudicial to the public interest, ASIC may make an interim order 31 that no offers, issues, sales or transfers of the securities be made 32 while the interim order is in force. The interim order may be made 33 without holding a hearing and lasts for 21 days after the day on 34 which it is made unless revoked before then. 35 [Page Break] 1 that no offers, issues, sales or transfers of the securities be made 2 while the interim order is in force. The interim order lasts until: 3 (a) ASIC makes an order under subsection (1) after the 4 conclusion of the hearing; or 5 (b) the interim order is revoked; 6 whichever happens first. 7 (5) An order under subsection (1), (3) or (4) must be in writing and 8 must be served on the person who is ordered not to offer, issue, sell 9 or transfer securities. 10 (6) The person on whom the order is served must take reasonable steps 11 to ensure that other people who engage in conduct to which the 12 order applies are aware of the order. 13 Note: Failure to comply with this subsection is an offence (see subsection 14 1311(1)). 15 (7) The person on whom the order is served, or a person who is aware 16 of the order, must not engage in conduct contrary to the order. 17 Note: Failure to comply with this subsection is an offence (see subsection 18 1311(1)). 19 19 After subsection 1274(2B) 20 Insert: 21 (2C) For the purposes of subsections (2) and (5), information or a copy 22 of a document that is taken to be lodged with ASIC because of 23 paragraph 1200D(2)(b) or 1200G(10)(b) is taken to be a document 24 lodged with ASIC if an authority mentioned in section 601CDA or 25 601CTA has given the information or document to ASIC. 26 Note: If items 1 to 18 of this Schedule commence before Schedule 2, this item does not 27 commence at all. See table item 3 of the commencement provision. 28 20 After subsection 1274(2A) 29 Insert: 30 (2C) For the purposes of subsections (2) and (5), information or a copy 31 of a document that is taken to be lodged with ASIC because of 32 paragraph 1200D(2)(b) or 1200G(10)(b) is taken to be a document 33 lodged with ASIC if an authority mentioned in section 601CDA or 34 601CTA has given the information or document to ASIC. 35 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 this item does not commence at all. See table item 4 of the commencement provision. 2 21 After paragraph 1311(1A)(db) 3 Insert: 4 (dc) Chapter 8; 5 22 Schedule 3 (after table item 318A) 6 Insert: 7 322 Subsection 1200N(7) 100 penalty units or imprisonment for 2 years, or both. 323 Subsection 1200N(8) 100 penalty units or imprisonment for 2 years, or both. 324 Subsection 1200Q(1) 200 penalty units or imprisonment for 5 years, or both. 325 Subsection 1200Q(2) 200 penalty units or imprisonment for 5 years, or both. 326 Section 1200S 100 penalty units or imprisonment for 2 years, or both. 327 Subsection 1200U(6) 100 penalty units or imprisonment for 2 years, or both. 328 Subsection 1200U(7) 100 penalty units or imprisonment for 2 years, or both. 8 [Page Break] Schedule 2--Recognition of companies 2 3 Corporations Act 2001 4 1 After section 601CD 5 Insert: 6 601CDA Limited disclosure if place of origin is a prescribed country 7 A foreign company is not required to lodge information or a copy 8 of a document with ASIC under this Division if: 9 (a) the company's place of origin is a country prescribed by the 10 regulations; and 11 (b) the company has given the information or a copy of the 12 document to an authority in that country whose functions 13 under the law of the country include functions equivalent to 14 any of those of ASIC under this Act. 15 2 Before section 601CT 16 Insert: 17 601CTA Limited disclosure if place of origin is a prescribed country 18 A foreign company is not required to lodge information or a copy 19 of a document with ASIC under this Division if: 20 (a) the company's place of origin is a country prescribed by 21 regulations made for the purposes of section 601CDA; and 22 (b) the company has given the information or a copy of the 23 document to an authority in that country whose functions 24 under the law of the country include functions equivalent to 25 any of those of ASIC under this Act. 26 3 After subsection 1274(2A) 27 Insert: 28 (2B) For the purposes of subsections (2) and (5), information or a copy 29 of a document that is not required to be lodged with ASIC because 30 of section 601CDA or 601CTA is taken to be a document lodged 31 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 information or document to ASIC. 2 [Page Break] Schedule 3--Protection of information 2 obtained by the Australian Competition 3 and Consumer Commission 4 5 Radiocommunications Act 1992 6 1 Subsection 118C(6) 7 Repeal the subsection. 8 2 Subsection 118G(6) 9 Repeal the subsection. 10 Trade Practices Act 1974 11 3 After section 155 12 Insert: 13 155AAA Protection of certain information 14 (1) A Commission official must not disclose any protected information 15 to any person except: 16 (a) when the Commission official is performing duties or 17 functions as a Commission official; or 18 (b) when the Commission official or the Commission is required 19 or permitted by: 20 (i) this Act or any other law of the Commonwealth; or 21 (ii) a prescribed law of a State or internal Territory; 22 to disclose the information. 23 (2) Subsection (1) does not allow a Commission official to disclose 24 protected information when performing a function of the 25 Commission described in section 28. 26 Disclosure to Ministers 27 (3) A Commission official may disclose protected information to the 28 designated Minister. 29 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 (a) a provision of this Act; or 2 (b) a provision of another Act; 3 that is administered by a Minister other than the designated 4 Minister, a Commission official may disclose the protected 5 information to the other Minister. 6 (5) Subsection (4) does not limit subsection (3). 7 Disclosure to Secretaries etc. 8 (6) A Commission official may disclose protected information to: 9 (a) the Secretary of the designated Department; or 10 (b) an officer of the designated Department who is authorised by 11 the Secretary of that Department, in writing, for the purposes 12 of this subsection; 13 for the purpose of advising the designated Minister. 14 (7) If protected information relates to a matter arising under: 15 (a) a provision of this Act; or 16 (b) a provision of another Act; 17 that is administered by a Minister other than the designated 18 Minister, a Commission official may disclose the protected 19 information to: 20 (c) the Secretary of the Department that is administered by the 21 other Minister; or 22 (d) an officer of that Department who is authorised by the 23 Secretary of that Department, in writing, for the purposes of 24 this subsection; 25 for the purpose of advising the other Minister. 26 (8) Subsection (7) does not limit subsection (6). 27 Disclosure to a Royal Commission 28 (9) A Commission official may disclose protected information to a 29 Royal Commission. 30 (10) The Chairperson may, by writing, impose conditions to be 31 complied with in relation to protected information disclosed under 32 subsection (9). 33 [Page Break] 1 Disclosure to certain agencies, bodies and persons 2 (12) If the Chairperson is satisfied that particular protected information 3 will enable or assist any of the following agencies, bodies or 4 persons: 5 (a) the Australian Bureau of Statistics; 6 (b) the Australian Communications and Media Authority; 7 (c) the Australian Prudential Regulation Authority; 8 (d) the Australian Securities and Investments Commission; 9 (e) the National Competition Council; 10 (f) the Productivity Commission; 11 (g) any other agency within the meaning of the Freedom of 12 Information Act 1982; 13 (h) the Australian Statistician; 14 (i) the Commissioner of Taxation; 15 (j) the Australian Competition Tribunal; 16 (k) the Director of Public Prosecutions; 17 (l) the Reserve Bank of Australia; 18 (m) a State/Territory government body; 19 (n) a foreign government body; 20 to perform or exercise any of the functions or powers of the 21 agency, body or person, an authorised Commission official may 22 disclose that protected information to the agency, body or person 23 concerned. 24 (13) The Chairperson may, by writing, impose conditions to be 25 complied with in relation to protected information disclosed under 26 subsection (12). 27 (14) An instrument under subsection (13) is not a legislative instrument. 28 Disclosure with consent 29 (15) A Commission official may disclose protected information that 30 relates to the affairs of a person if: 31 (a) the person has consented to the disclosure; and 32 (b) the disclosure is in accordance with that consent. 33 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 (16) A Commission official may disclose protected information if it is 2 already publicly available. 3 Disclosure of summaries or statistics 4 (17) A Commission official may disclose: 5 (a) summaries of protected information; or 6 (b) statistics derived from protected information; 7 if those summaries or statistics, as the case may be, are not likely 8 to enable the identification of a person. 9 Disclosure authorised by regulations 10 (18) The regulations may: 11 (a) authorise a Commission official to disclose protected 12 information in specified circumstances; and 13 (b) provide that the Chairperson may, by writing, impose 14 conditions to be complied with in relation to the disclosure of 15 protected information in those circumstances. 16 (19) An instrument under regulations made for the purposes of 17 paragraph (18)(b) is not a legislative instrument. 18 Delegation 19 (20) The Chairperson may, by writing, delegate any or all of his or her 20 functions and powers under: 21 (a) this section; or 22 (b) regulations made for the purposes of subsection (18); 23 to a member of the Commission. 24 Definitions 25 (21) In this section: 26 authorised Commission official means a Commission official 27 authorised by the Chairperson, in writing, for the purposes of this 28 section. 29 Commission official means: 30 (a) a member, or associate member, of the Commission; or 31 [Page Break] 1 (c) a person engaged under section 27A. 2 core statutory provision means: 3 (a) a provision of Part IV, IVA, V, VA, VII, VIII, XIB or XIC 4 (other than a provision of Division 1AA of Part V); or 5 (b) the remaining provisions of this Act so far as they relate to a 6 provision covered by paragraph (a); or 7 (c) a provision of the regulations so far as it relates to a provision 8 covered by paragraph (a) or (b). 9 designated Department means the Department that is responsible 10 for the administration of this section (other than subsections (4) 11 and (7)). 12 designated Minister means the Minister who is responsible for the 13 administration of this section (other than subsections (4) and (7)). 14 disclose means divulge or communicate. 15 foreign country includes a region where: 16 (a) the region is a colony, territory or protectorate of a foreign 17 country; or 18 (b) the region is part of a foreign country; or 19 (c) the region is under the protection of a foreign country; or 20 (d) a foreign country exercises jurisdiction or control over the 21 region; or 22 (e) a foreign country is responsible for the region's international 23 relations. 24 foreign government body means: 25 (a) the government of a foreign country; or 26 (b) an agency or authority of a foreign country; or 27 (c) the government of part of a foreign country; or 28 (d) an agency or authority of part of a foreign country. 29 information includes information in a document and information 30 given in evidence. 31 protected information means: 32 (a) information that: 33 (i) was given in confidence to the Commission; and 34 B05RC246.v05.doc 1/2/2006 3:05 PM [Page Break] 1 provision; or 2 (b) information that: 3 (i) was obtained by the Commission under Part XID or 4 section 155; and 5 (ii) relates to a matter arising under a core statutory 6 provision; or 7 (c) information that: 8 (i) was obtained by the Commission under section 151AU, 9 152AU, 152BT, 152BZ, 152CBB or 152CBH or rules 10 in force under section 151BU; and 11 (ii) relates to a matter arising under Part XIB or XIC; or 12 (d) information that was obtained by the Commission under 13 section 118C or 118G of the Radiocommunications Act 1992; 14 or 15 (e) information that: 16 (i) was given in confidence to the Commission by a foreign 17 government body; and 18 (ii) relates to a matter arising under a provision of a law of a 19 foreign country or of a part of a foreign country. 20 For the purposes of this definition, it is immaterial whether the 21 information was given to or obtained by the Commission before, at 22 or after the commencement of this section. 23 Royal Commission has the same meaning as in the Royal 24 Commissions Act 1902. 25 State/Territory government body means: 26 (a) the government of a State or Territory; or 27 (b) an agency or authority of a State or Territory. 28 4 Subsection 155AA(1) 29 Omit "protected Part IV information or". 30 Note: The heading to section 155AA is altered by omitting "IV or". 31 5 Paragraph 155AA(1)(b) 32 After "required", insert "or permitted". 33 6 Subsection 155AA(2) 34 [Page Break] 1 7 Subsection 155AA(2) 2 Omit "protected Part IV information or". 3 8 Subsection 155AA(3) (definition of protected Part IV 4 information) 5 Repeal the definition. 6 9 Section 155AB 7 Repeal the section. 8 B05RC246.v05.doc 1/2/2006 3:05 PM