Commonwealth Consolidated Acts

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ASIC's power of disqualification

Power to disqualify

             (1)  ASIC may disqualify a person from managing corporations for up to 5 years if:

                     (a)  within 7 years immediately before ASIC gives a notice under paragraph (b)(i):

                              (i)  the person has been an officer of 2 or more corporations; and

                             (ii)  while the person was an officer, or within 12 months after the person ceased to be an officer of those corporations, each of the corporations was wound up and a liquidator lodged a report under subsection 533(1) (including that subsection as applied by section 526-35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ) about the corporation's inability to pay its debts; and

                     (b)  ASIC has given the person:

                              (i)  a notice in the prescribed form requiring them to demonstrate why they should not be disqualified; and

                             (ii)  an opportunity to be heard on the question; and

                     (c)  ASIC is satisfied that the disqualification is justified.

          (1A)  To avoid doubt, the references in paragraph (1)(a) to corporations include references to Aboriginal and Torres Strait Islander corporations.

Grounds for disqualification

             (2)  In determining whether disqualification is justified, ASIC:

                     (a)  must have regard to whether any of the corporations mentioned in subsection (1) were related to one another; and

                     (b)  may have regard to:

                              (i)  the person's conduct in relation to the management, business or property of any corporation; and

                             (ii)  whether the disqualification would be in the public interest; and

                            (iii)  any other matters that ASIC considers appropriate.

          (2A)  To avoid doubt, the references in subsection (2) to a corporation includes a reference to an Aboriginal and Torres Strait Islander corporation.

Notice of disqualification

             (3)  If ASIC disqualifies a person from managing corporations under this section, ASIC must serve a notice on the person advising them of the disqualification. The notice must be in the prescribed form.

Start of disqualification

             (4)  The disqualification takes effect from the time when a notice referred to in subsection (3) is served on the person.

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