AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 43 Exercise of certain powers of ASIC in relation to financial products

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 43

  (1)   This section applies where ASIC considers that:

  (a)   it may be necessary to exercise, in relation to a financial product issued by a body corporate, a power under section   794D of the Corporations Act; or

  (b)   a contravention of section   991F, or Division   2 of Part   7.10, of the Corporations Act may have been committed in relation to financial products issued by a body corporate; or

  (c)   a contravention of Chapter   6C of the Corporations Act may have been committed in relation to shares in a body corporate; or

  (d)   a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, may have been committed, being a contravention that involves fraud or dishonesty and relates to financial products issued by a body corporate; or

  (e)   unacceptable circumstances within the meaning of Subdivision B of Division   2 of Part   6.10 of the Corporations Act have, or may have, occurred:

  (i)   in relation to an acquisition of shares in a body corporate; or

  (ii)   as a result of conduct engaged in by a person in relation to shares in, or the affairs of, a body corporate; or

  (f)   a person has, or may have, contravened section   657F of the Corporations Act.

  (2)   ASIC may require a director, secretary or senior manager of the body to disclose to ASIC information of which he or she is aware and that:

  (a)   may have affected a dealing that has taken place; or

  (b)   may affect a dealing that may take place;

in financial products issued by the body.

Note:   Failure to comply with a requirement made under this subsection is an offence (see section   63).

  (3)   If ASIC believes on reasonable grounds that a person can give, information about particular matters, being any or all of the following:

  (a)   a dealing in financial products issued by the body;

  (b)   advice, or an analysis or report, that a person who carries on or has carried on (either alone or together with any other person or persons) a financial services business, or a representative of such a person, has given, issued or published about such financial products;

  (c)   the financial position of a business carried on by a person who:

  (i)   is or has been (either alone or together with any other person or persons) a person who carries on or has carried on a financial services business, or a representative of such a person; and

  (ii)   has dealt in, has given advice about, or has issued or published an analysis or report about, such financial products;

  (d)   the financial position of a business carried on by a nominee controlled by a person of a kind referred to in paragraph   (c) or jointly controlled by 2 or more persons at least one of whom is such a person;

  (e)   an audit of, or a report of an auditor about, accounts or records of a person who carries on or has carried on (either alone or together with any other person or persons) a financial services business, or a representative of such a person, being accounts or records relating to dealings in such financial products;

ASIC may require the person to disclose to it the information that the person has about those particular matters.

Note:   Failure to comply with a requirement made under this subsection is an offence (see section   63).

  (3A)   An offence under subsection   63(2) relating to subsection   (2) or (3) of this section is an offence of strict liability.

Note:   For strict liability , see section   6.1 of the Criminal Code .

  (4)   ASIC must not exercise a power conferred by subsection   (2) or (3) except:

  (a)   if paragraph   (1)(a) applies--for the purpose of determining whether or not to exercise a power as mentioned in that paragraph; or

  (b)   if paragraph   (1)(b), (c) or (d) applies--for the purpose of investigating the possible contravention; or

  (c)   if paragraph   (1)(e) or (f) applies--for the purpose of determining whether or not to make an application under section   657C or 657G of the Corporations Act.