Commonwealth Numbered Acts

FUTURES INDUSTRY ACT 1986 No. 72 of 1986 - SECT 13

13. (1) The powers of the Commission under sub-section (3), or the powers of
an authorised person under sub-section (4), to make a requirement of a person
shall not be exercised except-

   (a)  for the purpose of-

        (i)    the performance of a function, or the exercise of a power, by
               the Commission under a relevant Act (other than the exercise of
               a power of the Commission under sub-section 6 (3) of the
               National Companies and Securities  Commission Act 1979 ); or

        (ii)   ensuring compliance with the provisions of a relevant Act; or

   (b)  where the requirement relates to a matter that constitutes or may
        constitute-

        (i)    a contravention of a provision of a relevant Act; or

        (ii)   an offence relating to futures contracts that involves fraud or
               dishonesty.

(2) A reference in sub-section (1) to a relevant Act includes a reference to
the provisions of a law of a participating State or participating Territory
that correspond with a relevant Act.

(3) The Commission may, at any time, by notice in writing-

   (a)  give a direction to-

        (i)    a futures exchange, a clearing house or a futures association;

        (ii)   a member of the Board of a futures exchange, a clearing house
               or a futures association;

        (iii)  a person who is or has been (either alone or together with
               another person or other persons) a futures broker or a
               futures adviser or is or has been a futures broker's
               representative, a futures adviser's representative or a member
               of a futures association;

        (iv)   a nominee controlled by a person referred to in sub-paragraph
               (iii) or jointly controlled by 2 or more persons at least one
               of whom is a person referred to in that sub-paragraph;

        (v)    a person who is or has been an officer or employee of, or an
               agent, banker, solicitor, auditor or other person acting in any
               capacity for or on behalf of, a futures exchange, a
               clearing house, a member of a futures association or a person
               referred to in sub-paragraph (ii), (iii) or (iv); or

        (vi)   any other person who, in the opinion of the Commission, has
               been a party to any dealing in futures contracts,
requiring the production, to a person authorised by the Commission to receive
them, at such time and place as are specified in the direction, of such books
as are so specified, being books relating to-

        (vii)  the business or affairs of a futures exchange, a clearing house
               or a futures association;

        (viii) any dealing in futures contracts;

        (ix)   any advice concerning futures contracts or the issuing or
               publication of a report or analysis concerning
               futures contracts;

        (x)    the character or financial position of, or any business carried
               on by, a person referred to in sub-paragraph (iii) or (iv); or

        (xi)   an audit of, or any report of an auditor concerning, a dealing
               in futures contracts or any accounts or records of a
               futures broker or a futures adviser; or

   (b)  give a direction to any person requiring the production, to a person
        authorised by the Commission to receive them, at such time and place
        as are specified in the direction, of any books relating to matters
        mentioned in sub-paragraph (a) (vii), (viii), (ix), (x) or (xi) that
        are in the custody or under the control of the person.

(4) The Commission may from time to time authorise a person, on producing (if
required to do so) such evidence of the person's authority as is prescribed-

   (a)  to require by notice in writing a futures exchange, a clearing house,
        a futures association or a person referred to in sub-paragraph (3) (a)
        (ii), (iii), (iv), (v) or (vi) to produce to the authorised person
        forthwith or, if a time and place at which the books are to be
        produced are specified in the notice, at that time and place, such
        books relating to matters mentioned in sub-paragraph (3) (a) (vii),
        (viii), (ix), (x) or (xi) as are specified by the authorised person
        and as are in the custody or under the control of the
        futures exchange, clearing house, futures association or person of
        whom the requirement is made; or

   (b)  to require by notice in writing a futures exchange, a clearing house,
        a futures association or any other person to produce to the authorised
        person forthwith or, if a time and place at which the books are to be
        produced are specified in the notice, at that time and place, any
        books relating to matters mentioned in sub-paragraphs (3) (a) (vii),
        (viii), (ix), (x) and (xi) that are in the custody or under the
        control of the futures exchange, clearing house, futures association
        or other person.

(5) A reference in sub-section (3) to a dealing in futures contracts or to a
business carried on by a person includes a reference to a dealing in futures
contracts by a person as a trustee or to a business carried on by a person as
a trustee, as the case may be.

(6) An authorisation under sub-section (4) may be of general application or
may be limited to making requirements of a particular futures exchange,
clearing house, futures association or other person or particular futures
exchanges, clearing houses, futures associations or other persons.

(7) Where the Commission, or a person authorised by the Commission, requires
the production of any books under this section and a person has a lien on the
books, the production of the books does not prejudice the lien.

(8) Where the Commission, or a person authorised by the Commission, exercises
a power under this section to require another person to produce books-

   (a)  in a case where the books are produced-the person to whom the books
        are produced-

        (i)    may take possession of the books and make copies of, or take
               extracts from, the books;

        (ii)   may require the other person, or any person who was a party to
               the compilation of the books, to make a statement providing any
               explanation that the person concerned is able to provide as to
               a matter relating to the compilation of the books or as to any
               matter to which the books relate;

        (iii)  may retain possession of the books for such period as is
               necessary to enable the books to be inspected, and copies of,
               or extracts from, the books to be made or taken, by or
               on behalf of the Commission; and

        (iv)   during that period shall permit a person who would be entitled
               to inspect any one or more of the books if they were not in the
               possession of the person to whom the books were produced to
               inspect at all reasonable times such of the books as that
               person would be so entitled to inspect; or

   (b)  in any other case-the Commission or the authorised person may require
        the other person-

        (i)    to state, to the best of the other person's knowledge and
               belief, where the books may be found; and

        (ii)   to identify the person who, to the best of the other person's
               knowledge and belief, last had custody of the books and to
               state, to the best of the other person's knowledge and belief,
               where that person may be found.

(9) A person who complies or proposes to comply with a direction given or
purporting to have been given under sub-section (3) or a requirement made or
purporting to have been made under sub-section (4) is not liable to any
proceedings in respect of that compliance or proposed compliance.

(10) A power conferred by this section to make a requirement of a person
extends, if the person is a body corporate, including a body corporate that is
in the course of being wound up, or was a body corporate, being a body
corporate that has been dissolved, to making that requirement of any person
who is or has been an officer of the body corporate.
(11) In sub-section (10), "officer", in relation to a body corporate,
includes-

   (a)  a director, secretary, executive officer or employee of the body
        corporate;

   (b)  a receiver, or a receiver and manager, of property of the body
        corporate;

   (c)  an official manager or a deputy official manager of the body
        corporate;

   (d)  a liquidator or provisional liquidator of the body corporate; or

   (e)  a trustee or other person administering a compromise or arrangement
        made between the body corporate and another person or other persons.