Commonwealth Numbered Acts Commonwealth Numbered Acts1 Subsection 75B(1)
Omit “or 75AYA”, substitute “, 75AYA or 95AZN”.
2 At the end of paragraph 76(1)(a)
Add:
(iii) section 95AZN; or
3 At the end of paragraphs 76(1)(b), (c) and (d)
Add “or”.
4 Subsection 76(1A)
Repeal the subsection, substitute:
(1A) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:
(a) for each act or omission to which this section applies that relates to section 45D, 45DB, 45E or 45EA—$750,000; and
(b) for each act or omission to which this section applies that relates to any other provision of Part IV—the greatest of the following:
(i) $10,000,000;
(ii) if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission—3 times the value of that benefit;
(iii) if the Court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the act or omission occurred; and
(c) for each act or omission to which this section applies that relates to section 95AZN—$33,000; and
(d) for each other act or omission to which this section applies—$10,000,000.
Note: For annual turnover , see subsection (5).
5 Subsection 76(1B)
Repeal the subsection, substitute:
(1B) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed:
(a) for each act or omission to which this section applies that relates to section 95AZN—$6,600; and
(b) for each other act or omission to which this section applies—$500,000.
6 Subsection 76(4)
Omit “subsection (1A)”, substitute “paragraphs (1A)(a) and (b)”.
7 At the end of section 76
Add:
Annual turnover
(5) For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is 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 that period, other than:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999 ); or
(d) supplies that are not made in connection with an enterprise that the body corporate carries on; or
(e) supplies that are not connected with Australia.
(6) Expressions used in subsection (5) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
8 Subsection 76A(1)
Insert:
"contravention" , in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section.
Note: The heading to section 76A is altered by inserting “ or 95AZN ” after “ 75AYA ”.
9 Subsection 76A(1) (definition of contravention of section 75AYA )
Repeal the definition.
10 Subsection 76A(2)
After “75AYA”, insert “or 95AZN”.
11 Subsection 76B(1)
Insert:
"contravention" , in relation to a section, includes conduct referred to in paragraph 76(1)(b), (c), (d), (e) or (f) that relates to a contravention of the section.
Note: The heading to section 76B is altered by inserting “ or 95AZN ” after “ 75AYA ”.
12 Subsection 76B(1) (definition of contravention of section 75AYA )
Repeal the definition.
13 Subsections 76B(2), (3) and (4)
After “75AYA”, insert “or 95AZN”.
14 Paragraph 76B(5)(a)
After “75AYA”, insert “or 95AZN”.
15 Application
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
Part 2 — Disqualification from managing corporations
16 After section 206E
Insert:
206EA Disqualification under the Trade Practices Act 1974
A person is disqualified from managing corporations if a court order disqualifying the person from managing corporations is in force under section 86E of the Trade Practices Act 1974 .
17 After section 206G
Insert:
206GA Involvement of ACCC—leave orders under section 206G
Scope of section
(1) This section applies in relation to a person who is disqualified from managing corporations under section 206EA.
Notice lodged with ASIC before leave application
(2) If the person lodges a notice with ASIC under subsection 206G(2), ASIC must give the ACCC a copy of the notice.
Leave orders
(3) If the person lodges a copy of an order with ASIC under subsection 206G(4), ASIC must give the ACCC a copy of the order.
Revoking leave
(4) If ASIC decides to apply for an order under subsection 206G(5) in relation to the person, it must consult the ACCC before making the application.
Definition
(5) In this section:
"ACCC" means the Australian Competition and Consumer Commission.
18 Paragraph 1274AA(1)(a)
After “206E”, insert “, 206EA”.
19 After paragraph 1274AA(2)(a)
Insert:
(aa) every court order referred to in section 206EA; and
20 After section 86D
Insert:
86E Order disqualifying a person from managing corporations
(1) On application by the Commission, the Court may make an order disqualifying a person from managing corporations for a period that the Court considers appropriate if:
(a) the Court is satisfied that the person has contravened, has attempted to contravene or has been involved in a contravention of Part IV; and
(b) the Court is satisfied that the disqualification is justified.
Note: Section 206EA of the Corporations Act 2001 provides that a person is disqualified from managing corporations if a court order is in force under this section. That Act contains various consequences for persons so disqualified.
(2) In determining whether the disqualification is justified, the Court may have regard to:
(a) the person’s conduct in relation to the management, business or property of any corporation; and
(b) any other matters that the Court considers appropriate.
(3) The Commission must notify ASIC if the Court makes an order under this section. The Commission must give ASIC a copy of the order.
Note: ASIC must keep a register of persons who have been disqualified from managing corporations: see section 1274AA of the Corporations Act 2001 .
(4) In this section:
"ASIC" means the Australian Securities and Investments Commission.
21 Application
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.
22 Paragraph 6(2)(h)
After “50A,”, insert “77A,”.
23 After section 77
Insert:
77A Indemnification of officers
(1) A body corporate (the first body ), or a body corporate related to the first body, 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 of the first body:
(a) a civil liability;
(b) legal costs incurred in defending or resisting proceedings in which the person is found to have such a liability.
Penalty: 25 penalty units.
(2) For the purposes of subsection (1), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.
Definitions
(3) In this section:
"civil liability" means a liability to pay a pecuniary penalty under section 76 for a contravention of a provision of Part IV.
"officer" has the same meaning as in the Corporations Act 2001 .
77B Certain indemnities not authorised and certain documents void
(1) Section 77A does not authorise anything that would otherwise be unlawful.
(2) Anything that purports to indemnify a person against a liability is void to the extent that it contravenes section 77A.
77C Application of section 77A to a person other than a body corporate
If, as a result of the operation of Part 2.4 of the Criminal Code , a person other than a body corporate is:
(a) convicted of an offence (the relevant offence ) against subsection 77A(1) of this Act; or
(b) convicted of an offence (the relevant offence ) against section 11.4 of the Criminal Code in relation to an offence referred to in subsection 77A(1) of this Act;
the relevant offence is taken to be punishable on conviction by a fine not exceeding 5 penalty units.
24 Application
The amendments made by this Part apply in relation to contraventions occurring after the commencement of this Part.