Commonwealth Consolidated Acts Commonwealth Consolidated ActsUnless the contrary intention appears:
2-part simple corporate bonds prospectus has the meaning given by section 713B.
"AASB" means the Australian Accounting Standards Board.
"ABN" (short for "Australian Business Number") has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999 .
"Aboriginal and Torres Strait Islander corporation" means a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .
(a) an instrument in force under section 334; or
(b) a provision of such an instrument as it so has effect.
"ACN" (short for "Australian Company Number") is the number given by ASIC to a company on registration (see sections 118 and 601BD).
"acquire" , in relation to financial products, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"add-on insurance product" has the same meaning as in section 12DO of the Australian Securities and Investments Commission Act 2001 .
"administration" , in relation to a company, has the meaning given by section 435C.
(a) in relation to a body corporate but not in relation to a deed of company arrangement:
(i) means an administrator of the body or entity appointed under Part 5.3A; and
(iii) if 2 or more persons are appointed under that Part as administrators of the body or entity--has a meaning affected by paragraph 451A(2)(b); or
(b) in relation to a deed of company arrangement:
(i) means an administrator of the deed appointed under Part 5.3A; and
(ii) if 2 or more persons are appointed under that Part as administrators of the deed--has a meaning affected by paragraph 451B(2)(b).
"admit to quotation" : financial products are admitted to quotation on a market if the market operator has given unconditional permission for quotation of the financial products on the market.
(a) in relation to a body corporate (other than a CCIV)--has, in the provisions referred to in section 53, a meaning affected by that section; and
(b) in relation to a body corporate that is a CCIV--has, in the provisions referred to in section 53AAA, a meaning affected by that section.
"affidavit" includes affirmation.
"agency" means an agency, authority, body or person.
"aggregated turnover" has the same meaning as in the Income Tax Assessment Act 1997.
"AGM" means an annual general meeting of a company that section 250N requires to be held.
"agreement" , in Chapter 6 or 7, means a relevant agreement.
"amount" includes a nil amount and zero.
"ancillary offence" , in relation to another offence, means an offence against:
(a) section 5, 6, 7 or 7A of the Crimes Act 1914 ; or
(b) subsection 86(1) of that Act by virtue of paragraph 86(1)(a) of that Act;
being an offence that is related to that other offence.
"annual transparency report" has the meaning given by subsection 332A(2).
"annual turnover" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"application facility" , in relation to a CSF offer, has the meaning given by subsection 738ZA(3).
"approved code of conduct" means a code of conduct approved by ASIC by legislative instrument under section 1101A, and includes a replacement code of conduct approved under that section.
"approved stock exchange" has the same meaning as in the Income Tax Assessment Act 1997.
"APRA" means the Australian Prudential Regulation Authority.
"arbitrage transaction" means a purchase or sale of financial products effected in the ordinary course of trading on a financial market together with an offsetting sale or purchase of those financial products effected at the same time, or at as nearly the same time as practicable, in the ordinary course of trading on another financial market for the purpose of obtaining a profit from the difference between the prices of those financial products in the 2 financial markets.
"ARBN" (short for "Australian Registered Body Number") is the number given by ASIC to a registrable body on registration under Part 5B.2.
"ARFN" (short for Australian Registered Fund Number) is the number given by ASIC to a sub-fund of a CCIV on registration of the sub-fund (see subsection 1222S(3)).
"arrangement" , in Part 5.1, includes a reorganisation of the share capital of a body corporate by the consolidation of shares of different classes, by the division of shares into shares of different classes, or by both of those methods.
"ARSN" (short for "Australian Registered Scheme Number") is the number given by ASIC to a registered scheme on registration (see section 601EB).
"ASIC" means the Australian Securities and Investments Commission.
"ASIC Act" means the Australian Securities and Investments Commission Act 2001 and includes the regulations made under that Act.
"ASIC database" means so much of the national companies database kept by ASIC as consists of:
(a) some or all of a register kept by ASIC under this Act; or
(b) information set out in a document lodged under this Act;
but does not include ASIC's document imaging system.
"ASIC delegate" has the same meaning as in the ASIC Act.
(a) in relation to a financial services licensee--means all the licensee's assets (whether or not used in connection with the licensee's Australian financial services licence); and
(b) in relation to a sub-fund of a CCIV--has the meaning given by section 1233H.
"associate" has the meaning given by sections 10 to 17.
"associated entity" has the meaning given by section 50AAA.
"AUASB" means the Auditing and Assurance Standards Board.
"audit" means an audit conducted for the purposes of this Act and includes a review of a financial report for a financial year or a half-year conducted for the purposes of this Act.
"audit activity" : see the definition of engage in audit activity .
"audit company" means a company that consents to be appointed, or is appointed, as auditor of a company or registered scheme.
"audit-critical employee" , in relation to a company, or the responsible entity for a registered scheme, that is the audited body for an audit, means a person who:
(a) is an employee of the company or of the responsible entity for the registered scheme; and
(b) is able, because of the position in which the person is employed, to exercise significant influence over:
(i) a material aspect of the contents of the financial report being audited; or
(ii) the conduct or efficacy of the audit.
"audited body" , in relation to an audit of a company or registered scheme, means the company or registered scheme in relation to which the audit is, or is to be, conducted.
"audit firm" means a firm that consents to be appointed, or is appointed, as auditor of a company or registered scheme.
(a) a standard in force under section 336; or
(b) a provision of such a standard as it so has effect.
"auditor independence requirements of this Act" means the requirements of Divisions 3, 4 and 5 of Part 2M.4.
"Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes each Territory.
Note: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this section.
(a) an ADI (authorised deposit-taking institution) within the meaning of the Banking Act 1959 ; and
(b) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.
"Australian bank" means an Australian ADI that is permitted under section 66 of the Banking Act 1959 to assume or use:
(a) the word bank, banker or banking; or
(b) any other word (whether or not in English) that is of like import to a word referred to in paragraph (a).
"Australian business law" means a law of the Commonwealth, or of a State or Territory, that is a law that regulates, or relates to the regulation of, business or persons engaged in business.
"Australian carbon credit unit" has the same meaning as in the Carbon Credits (Carbon Farming Initiative) Act 2011 .
"Australian court" means a federal court or a court of a State or Territory.
"Australian CS facility licence" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"Australian derivative trade repository licence" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"Australian financial services licence" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"Australian law" means a law of the Commonwealth or of a State or Territory.
"Australian market licence" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"Australian member" : a person is an Australian member of a notified foreign passport fund if:
(a) the person holds an interest in the fund that was acquired in this jurisdiction; or
(b) the person is ordinarily resident in this jurisdiction and holds an interest in the fund.
"Australian passport fund " means:
(a) a registered scheme that is registered as a passport fund under Part 8A.3; or
(b) a sub-fund of a retail CCIV that is registered as a passport fund under Part 8A.3.
"Australian register" of a foreign company means a branch register of members kept under section 601CM.
"authorised audit company" means a company registered under Part 9.2A.
"bank or banker" includes, but is not limited to, a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959 .
"banking corporation " means a body corporate that carries on, as its sole or principal business, the business of banking (other than State banking not extending beyond the limits of the State concerned).
"banning order" means an order made under subsection 920A(1).
"BAS agent" has the same meaning as in the Tax Agent Services Act 2009 .
"base prospectus" has the meaning given by subsection 713C(1).
"base salary" has the meaning specified in regulations made for the purposes of this definition.
"begin" , in relation to a winding up, has the meaning given by Division 1A of Part 5.6.
"benchmark administrator licence" means a licence granted under section 908BC.
"benchmark administrator licensee" means a person who holds a benchmark administrator licence.
(a) means any benefit, whether by way of payment of cash or otherwise; and
(b) when used in Division 2 of Part 2D.2 (sections 200 to 200J)--has the meaning given by section 200AB.
"benefit derived and detriment avoided" :
(a) because of an offence--has the meaning given by section 1311D; and
(b) because of a contravention of a civil penalty provision--has the meaning given by section 1317GAD.
"bid class" of securities for a takeover bid is the class of securities to which the securities being bid for belong.
"bidder" for a takeover bid means the person who makes or proposes to make, or each of the people who make or propose to make, the offers under the bid (whether personally or by an agent or nominee).
Note: A person who announces a bid on behalf of another person is not making the bid, the other person is making the bid.
"bidder's statement" means a bidder's statement under sections 636 and 637 as supplemented.
(a) for an off-market bid--starts when the bidder's statement is given to the target and ends:
(i) 1 month later if no offers are made under the bid; or
(ii) at the end of the offer period; and
(b) for a market bid--starts when the bid is announced to the relevant financial market and ends at the end of the offer period.
"Board" , when used in Part 9.2, means the Companies Auditors Disciplinary Board.
"board limit" means a limit described in section 201N.
"board limit resolution" means a resolution described in paragraph 201P(1)(a).
"body" means a body corporate or an unincorporated body and includes, for example, a society or association.
(a) includes a body corporate that is being wound up or has been dissolved; and
(b) in this Chapter (except section 66A) and section 206E includes an unincorporated registrable body.
"body regulated by APRA" has the meaning given by subsection 3(2) of the Australian Prudential Regulation Authority Act 1998 .
(a) a register; and
(b) any other record of information; and
(c) financial reports or financial records, however compiled, recorded or stored; and
(d) a document;
but does not include an index or recording made under Subdivision D of Division 5 of Part 6.5.
"borrower" , in relation to a debenture, means the body that is or will be liable to repay money under the debenture.
"business affairs" , in relation to an entity, has a meaning affected by sections 53AA, 53AB, 53AC and 53AD.
"business day" means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned.
"Business Names Register" means the Register established and maintained under section 22 of the Business Names Registration Act 2011.
"buy-back" by a company means the acquisition by the company of shares in itself.
"buy-back agreement" by a company means an agreement by the company to buy back its own shares (whether the agreement is conditional or not).
"carry on" has a meaning affected by Division 3.
"cash management trust interest" means an interest that:
(a) is an interest in a registered scheme or a notified foreign passport fund; and
(b) relates to an undertaking of the kind commonly known as a cash management trust.
"cause" includes procure.
"CCIV" : see corporate collective investment vehicle .
(a) in relation to a copy of, or extract from, a document--certified by a statement in writing to be a true copy of, or extract from, the document; or
(b) in relation to a translation of a document--certified by a statement in writing to be a correct translation of the document into English.
Chapter 5 body corporate means a body corporate:
(a) that is being wound up; or
(aa) that is a CCIV of which one or more sub-funds is being wound up; or
(b) in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; or
(c) that is under administration; or
(d) that has executed a deed of company arrangement that has not yet terminated; or
(da) that is under restructuring; or
(db) that has made a restructuring plan that has not yet terminated; or
(e) that has entered into a compromise or arrangement with another person the administration of which has not been concluded.
"charge" means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise.
"chargeable matter" has the same meaning as in the Corporations (Fees) Act 2001 .
"chargee" means the holder of a charge and includes a person in whose favour a charge is to be given or executed, whether on demand or otherwise, under an agreement.
"child" : without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975 .
"circulating security interest" has the meaning given by section 51C.
"civil matter" means a matter other than a criminal matter.
"civil penalty order" means any of the following:
(a) a declaration of contravention under section 1317E;
(b) a pecuniary penalty order under section 1317G;
(baa) a relinquishment order under section 1317GAB;
(ba) a refund order under section 1317GA or 1317GB;
(c) a compensation order under section 961M, 1317H, 1317HA, 1317HB, 1317HC or 1317HE;
(d) an order under section 206C disqualifying a person from managing corporations.
"civil penalty provision" has the meaning given in subsection 1317E(3).
"claims handling and settling service" , when used in a provision outside Chapter 7, has the same meaning as in Chapter 7.
(a) in relation to shares in a CCIV--a meaning affected by sections 57 and 1230A; and
(b) in relation to shares (other than shares in a CCIV) or interests in a managed investment scheme--a meaning affected by section 57; and
(c) when used in relation to securities for the purposes of Chapter 6, 6A or 6C--a meaning affected by subsection 605(2).
"clearing and settlement facility" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"close associate" of a director means:
(a) a relative of the director; or
(b) a relative of a spouse of the director.
"closed" , in relation to a CSF offer, has the meaning given by subsection 738N(3).
"closely related party" of a member of the key management personnel for an entity means:
(a) a spouse or child of the member; or
(b) a child of the member's spouse; or
(c) a dependant of the member or of the member's spouse; or
(d) anyone else who is one of the member's family and may be expected to influence the member, or be influenced by the member, in the member's dealings with the entity; or
(e) a company the member controls; or
(f) a person prescribed by the regulations for the purposes of this paragraph.
(a) in relation to Australia--means:
(i) the territorial sea of Australia; and
(ii) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;
and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; and
(b) in relation to a State or Territory--means so much of the coastal sea of Australia as is within the area described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 under the heading that refers to that State or Territory.
"code of conduct" means a code of conduct that relates to any aspect of the activities of:
(a) financial services licensees; or
(b) authorised representatives of financial services licensees; or
(c) issuers of financial products;
being activities in relation to which ASIC has a regulatory responsibility.
"commence" , in relation to a winding up, has the meaning given by Division 1A of Part 5.6.
"commencement" , in relation to an accounting standard, means:
(a) in the case of an accounting standard as originally in effect--the time when the accounting standard took effect; or
(b) in the case of an accounting standard as varied by a particular provision of an instrument made under section 334--the time when that provision took effect.
"Commonwealth" means the Commonwealth of Australia and, when used in a geographical sense, includes each Territory.
Note: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this section.
"Commonwealth authority" means an authority or other body (whether incorporated or not) that is established or continued in existence by or under an Act.
(a) an Agency (within the meaning of the Public Service Act 1999 ); or
(b) a body, whether incorporated or not, established for a public purpose by or under a law of the Commonwealth; or
(c) a person:
(i) holding or performing the duties of an office established by or under a law of the Commonwealth; or
(ii) holding an appointment made under a law of the Commonwealth.
"communication facility" , in relation to a CSF offer, has the meaning given by subsection 738ZA(5).
"company" means a company registered under this Act and:
(c) in Parts 5.7B and 5.8 (except sections 595 and 596), includes a Part 5.7 body; and
(d) in Part 5B.1, includes an unincorporated registrable body.
"company limited by guarantee" means a company formed on the principle of having the liability of its members limited to the respective amounts that the members undertake to contribute to the property of the company if it is wound up.
"company limited by shares" means a company formed on the principle of having the liability of its members limited to the amount (if any) unpaid on the shares respectively held by them.
"compelled financial benchmark rules" means rules made under section 908CD.
"complete" , in relation to a CSF offer, has the meaning given by subsection 738N(7).
"condition" , in relation to a licence, means a condition or restriction to which the licence is subject, or will be subject, as the case requires.
"connected entity" , in relation to a corporation, means:
(a) a body corporate that is, or has been, related to the corporation; or
(b) an entity that is, or has been, connected (as defined by section 64B) with the corporation.
"consolidated entity" means a company, registered scheme or disclosing entity together with all the entities it is required by the accounting standards to include in consolidated financial statements.
"constitution" means (depending on the context):
(a) a company's constitution, which (where relevant) includes rules and consequential amendments that are part of the company's constitution because of the Life Insurance Act 1995 ; or
(b) a managed investment scheme's constitution; or
(c) in relation to any other kind of body:
(i) the body's charter or memorandum; or
(ii) any instrument or law (other than this Act) constituting, or defining the constitution of, the body or governing the activities of the body or its members.
Note 1: The Life Insurance Act 1995 has rules about how benefit fund rules become part of a company's constitution. They override this Act. See Subdivision 2 of Division 4 of Part 2A of that Act.
Note 2: The constituent document (as defined in the Passport Rules for this jurisdiction) for a notified foreign passport fund is taken under section 1213E to be the constitution of the fund as a managed investment scheme.
"continuous disclosure notice" means:
(a) a document used to notify a market operator of information relating to a body under provisions of the market's listing rules referred to in subsections 674(1) and 674A(1); or
(b) a document under section 675 or 675A lodged in relation to the body.
"continuously quoted securities" are securities that:
(a) are in a class of securities that were quoted ED securities at all times in the 3 months before the date of the prospectus or Product Disclosure Statement; and
(b) are securities of an entity in relation to which the following subparagraphs are satisfied during the shorter of the period during which the class of securities were quoted, and the period of 12 months before the date of the prospectus or Product Disclosure Statement:
(i) no exemption under section 111AS or 111AT, or modification under section 111AV, covered the entity, or any person as director or auditor of the entity;
(ii) no exemption under paragraph 741(1)(a), or declaration under paragraph 741(1)(b), relating to a provision that is a disclosing entity provision for the purposes of Division 4 of Part 1.2A covered the entity, or any person as director or auditor of the entity;
(iii) no order under section 340, 340A, 341 or 341A covered the entity, or any person as director or auditor of the entity;
and, for these purposes, securities are not in different classes merely because of a temporary difference in the dividend, or distribution rights, attaching to the securities or because different amounts have been paid up on the securities.
"contravene" , in relation to a civil penalty provision, has a meaning affected by subsection 1317E(4).
"contribution plan" means a plan in respect of which the following conditions are met:
(a) regular deductions are made from the wages or salary of an employee or director (the contributor ) to acquire financial products that are offered for issue or sale to the contributor under a scheme for employees or directors of a company to acquire any of the following financial products of the company:
(i) fully paid ordinary shares;
(ii) options, offered for no more than nominal consideration, for the issue or transfer of fully paid ordinary shares;
(iii) units in fully paid ordinary shares;
(b) the deductions are authorised by the contributor in a form which is included in, or accompanies, the disclosure document or the Product Disclosure Statement for the scheme;
(c) before acquiring the financial products under the scheme, the deductions are held on trust in an account with an Australian ADI that is kept solely for that purpose;
(d) the contributor may elect to discontinue the deductions at any time;
(e) if the contributor so elects, the amount of the deductions standing, at that time, to the credit of the account for the contributor, and any interest on that amount, is repaid to the contributor;
(f) the scheme does not involve the offer to the contributor of a loan or similar financial assistance for the purpose of, or in connection with, the acquisition of the financial products that are offered under the scheme.
(a) in relation to a company (other than a no liability company):
(i) a person liable as a member or past member to contribute to the property of the company if it is wound up; and
(ii) for a company with share capital--a holder of fully paid shares in the company; and
(iii) before the final determination of the persons who are contributories because of subparagraphs (i) and (ii)--a person alleged to be such a contributory; and
(b) in relation to a Part 5.7 body:
(i) a person who is a contributory by virtue of section 586; and
(ii) before the final determination of the persons who are contributories by virtue of that section--a person alleged to be such a contributory; and
(c) in relation to a no liability company--subject to subsection 254M(2), a member of the company; and
(d) in relation to a sub-fund of a CCIV--a person who is a contributory of the CCIV under paragraph (a), if the person is liable as mentioned in subparagraph (a)(i) as a member or past member of the sub-fund, or is a holder of shares referable to the sub-fund.
(a) unless paragraph (b) applies--has the meaning given by section 50AA; and
(b) when used in Part 7.6--has the meaning given by section 910B.
"control day" , in relation to a controller of property of a corporation, means:
(a) unless paragraph (b) applies:
(i) in the case of a receiver, or receiver and manager, of that property--the day when the receiver, or receiver and manager, was appointed; or
(ii) in the case of any other person who is in possession, or has control, of that property for the purpose of enforcing a security interest--the day when the person entered into possession, or took control, of property of the corporation for the purpose of enforcing that security interest; or
(b) if the controller became a controller of property of the corporation:
(i) to act with an existing controller of such property; or
(ii) in place of a controller of such property who has died or ceased to be a controller of such property;
the day that is, because of any other application or applications of this definition, the control day in relation to the controller referred to in subparagraph (i) or (ii).
"controller" , in relation to property of a corporation, means:
(a) a receiver, or receiver and manager, of that property; or
(b) anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a security interest;
and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers).
"convertible note" has the same meaning as in Division 3A of Part III of the Income Tax Assessment Act 1936 .
"convertible securities" : securities are convertible into another class of securities if the holder may have the other class of securities issued to them by the exercise of rights attached to those securities. An option may be a convertible security even if it is non-renounceable.
"corporate collective investment vehicle or CCIV" means a company that is registered as a corporate collective investment vehicle under this Act.
"corporate director" of a CCIV has the meaning given by subsection 1224(3).
"corporation" has the meaning given by section 57A.
"corporation/scheme civil penalty provision" has the meaning given by subsection 1317E(3).
"Corporations legislation" means:
(a) this Act; and
(b) the ASIC Act; and
(c) rules of court made by the Federal Court, the Supreme Court of the Australian Capital Territory, or Judges of the Federal Circuit and Family Court of Australia (Division 1), because of a provision of this Act; and
(d) rules of court applied by the Supreme Court, or a State Family Court, of a State, or by the Supreme Court of the Northern Territory or of Norfolk Island, when exercising jurisdiction conferred by Division 1 of Part 9.6A (including jurisdiction conferred by virtue of any previous application or applications of this paragraph).
"court" has the meaning given by section 58AA .
"Court" has the meaning given by section 58AA.
"court of summary jurisdiction" means any justice or justices of the peace or other magistrate sitting as a court for the making of summary orders or the summary punishment of offences:
(a) under a law of the Commonwealth or of a State or Territory; or
(b) by virtue of his or her commission or their commissions.
"creditor" of a sub-fund of a CCIV means a creditor of the CCIV, if the debt or claim is, to any extent, a liability of the sub-fund.
"creditor-defeating disposition" has the meaning given by section 588FDB.
"creditors' voluntary winding up" means a winding up under Part 5.5, other than a members' voluntary winding up.
"CSF" is short for crowd-sourced funding.
Note: Crowd-sourced funding is dealt with in Part 6D.3A.
(a) unless paragraph (b) applies--$3 million; or
(b) any amount prescribed by the regulations for the purposes of this paragraph.
"CSF intermediary" has the meaning given by section 738C.
"CSF offer" has the meaning given by section 738B.
"CSF offer document" , in relation to a CSF offer, has the meaning given by subsection 738J(1).
"CSF shareholder" , of a proprietary company, means an entity that holds one or more securities of the company due to being issued with the securities pursuant to a CSF offer by the company.
"current market bid price" for securities covered by a market bid is the price specified in the announcement of the bid as increased or decreased during the offer period.
"custodial or depository service" that a person provides has the meaning given by section 766E.
"daily newspaper" means a newspaper that is ordinarily published on each day that is a business day in the place where the newspaper is published, whether or not the newspaper is ordinarily published on other days.
"data standards" means standards made by the Registrar under section 1270G.
"date" of a takeover bid is:
(a) for an off-market bid--the date on which offers are first made under the bid; or
(b) for a market bid--the date on which the bid is announced to the relevant financial market.
(a) in relation to a futures contract--has the meaning given by Division 4; and
(b) in relation to securities--subject to subsection 93(4), means (whether as principal or agent) acquire, dispose of, subscribe for or underwrite the securities, or make or offer to make, or induce or attempt to induce a person to make or to offer to make, an agreement:
(i) for or with respect to acquiring, disposing of, subscribing for or underwriting the securities; or
(ii) the purpose or purported purpose of which is to secure a profit or gain to a person who acquires, disposes of, subscribes for or underwrites the securities or to any of the parties to the agreement in relation to the securities.
"dealing" , in relation to financial products, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"debenture" of a body means a chose in action that includes an undertaking by the body to repay as a debt money deposited with or lent to the body. The chose in action may (but need not) include a security interest over property of the body to secure repayment of the money. However, a debenture does not include:
(a) an undertaking to repay money deposited with or lent to the body by a person if:
(i) the person deposits or lends the money in the ordinary course of a business carried on by the person; and
(ii) the body receives the money in the ordinary course of carrying on a business that neither comprises nor forms part of a business of borrowing money and providing finance; or
(b) an undertaking by an Australian ADI to repay money deposited with it, or lent to it, in the ordinary course of its banking business; or
Note: This paragraph has an extended meaning in relation to Chapter 8 (see subsection 1200A(2)).
(c) an undertaking to pay money under:
(i) a cheque; or
(ii) an order for the payment of money; or
(iii) a bill of exchange; or
(e) an undertaking by a body corporate to pay money to a related body corporate; or
(f) an undertaking to repay money that is prescribed by the regulations.
For the purposes of this definition, if a chose in action that includes an undertaking by a body to pay money as a debt is offered as consideration for the acquisition of securities under an off-market takeover bid, or is issued under a compromise or arrangement under Part 5.1, the undertaking is taken to be an undertaking to repay as a debt money deposited with or lent to the body.
"decision period" , for a secured party in relation to a security interest in property (including PPSA retention of title property) of a company means:
(a) in relation to a company under administration--the period beginning on the day when:
(i) a notice of appointment of the administrator must be given to the secured party under subsection 450A(3)--such notice is so given; or
(ii) otherwise--the administration begins;
and ending at the end of the thirteenth business day after that day; and
(b) in relation to a company under restructuring--the period beginning on the day when:
(i) a notice of appointment of the restructuring practitioner must be given to the secured party under the regulations--such notice is so given; or
(ii) otherwise--the restructuring begins;
and ending at the end of the thirteenth business day after that day.
"declaration of indemnities" , in relation to an administrator of a company under administration, means a written declaration:
(a) stating whether the administrator has, to any extent, been indemnified (otherwise than under section 443D), in relation to that administration, for:
(i) any debts for which the administrator is, or may become, liable under Subdivision A of Division 9 of Part 5.3A; or
(ii) any debts for which the administrator is, or may become, liable under a remittance provision as defined in section 443BA; or
(iii) the remuneration to which he or she is entitled under section 60- 5 of Schedule 2 (external administrator's remuneration); and
(b) if so, stating:
(i) the identity of each indemnifier; and
(ii) the extent and nature of each indemnity.
"declaration of relevant relationships" has the meaning given by section 60.
"deductible gift recipient" has the same meaning as in the Income Tax Assessment Act 1997 .
"deed" includes a document having the effect of a deed.
"deed of company arrangement" means a deed of company arrangement executed under Part 5.3A or such a deed as varied and in force from time to time.
"defeating condition" for a takeover bid means a condition that:
(a) will, in circumstances referred to in the condition, result in the rescission of, or entitle the bidder to rescind, a takeover contract; or
(b) prevents a binding takeover contract from resulting from an acceptance of the offer unless or until the condition is fulfilled.
"defect" , in relation to a statutory demand, includes:
(a) an irregularity; and
(b) a misstatement of an amount or total; and
(c) a misdescription of a debt or other matter; and
(d) a misdescription of a person or entity.
"defective" , in relation to a CSF offer document, has the meaning given by subsection 738U(1).
(a) in relation to a company--deregistered under Chapter 5A; and
(b) in relation to any other body corporate--deregistered in a way that results in the body corporate ceasing to exist.
"derivative" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"derivative trade repository rules" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"derivative transaction rules" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"designated secrecy provision" has the meaning given by subsection 1270M(3).
"director" of a company or other body means:
(a) a person who:
(i) is appointed to the position of a director; or
(ii) is appointed to the position of an alternate director and is acting in that capacity;
regardless of the name that is given to their position; and
(b) unless the contrary intention appears, a person who is not validly appointed as a director if:
(i) they act in the position of a director; or
(ii) the directors of the company or body are accustomed to act in accordance with the person's instructions or wishes.
Subparagraph (b)(ii) does not apply merely because the directors act on advice given by the person in the proper performance of functions attaching to the person's professional capacity, or the person's business relationship with the directors or the company or body.
Note: Paragraph (b)--Contrary intention--Examples of provisions for which a person referred to in paragraph (b) would not be included in the term "director" are:
* section 249C (power to call meetings of a company's members)
* subsection 251A(3) (signing minutes of meetings)
* section 205B (notice to ASIC of change of address).
"director identification number" means a director identification number given under:
(a) section 1272; or
(b) section 308-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .
"disclosing entity" has the meaning given by section 111AC.
"disclosure document" for an offer of securities means:
(a) a prospectus for the offer; or
(b) a profile statement for the offer; or
(c) an offer information statement for the offer.
"disclosure framework" means the disclosure framework made by the Registrar under section 1270K.
"dishonest" means dishonest according to the standards of ordinary people.
"dispose" has a meaning affected by the following paragraphs:
(a) when used in relation to financial products in a provision outside Chapter 7, otherwise than in a situation to which paragraph (b) applies, dispose has the same meaning as it has in Chapter 7;
(b) for the purposes of Chapter 6, a person who has a relevant interest in securities disposes of the securities if, and only if, they cease to have a relevant interest in the securities.
"document" means any record of information, and includes:
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
(d) a map, plan, drawing or photograph.
"domestic corporation" means a corporation that is incorporated or formed in Australia or an external Territory.
"ED securities" has the meaning given by section 111AD.
"electronic communication" means:
(a) a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b) a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.
"eligibility criteria" for restructuring a company: see section 453C.
"eligibility criteria" for the simplified liquidation process: see section 500AA.
"eligible applicant" , in relation to a corporation, means:
(a) ASIC; or
(b) a liquidator or provisional liquidator of the corporation; or
(c) an administrator of the corporation; or
(d) an administrator of a deed of company arrangement executed by the corporation; or
(da) a restructuring practitioner for the corporation; or
(db) a restructuring practitioner for a restructuring plan made by the corporation; or
(e) a person authorised in writing by ASIC to make:
(i) applications under the Division of Part 5.9 in which the expression occurs; or
(ii) such an application in relation to the corporation.
"eligible CSF company" has the meaning given by section 738H.
"eligible employee creditor" , in relation to a company, means a creditor whose debt or claim would, in a winding up of the company, be payable in priority to other unsecured debts and claims in accordance with paragraph 556(1)(e), (g) or (h) or section 560 or 561.
"eligible for temporary restructuring relief" has the meaning given by section 458E.
"eligible international emissions unit" has the same meaning as in the Australian National Registry of Emissions Units Act 2011 .
"eligible money market dealer" means a body corporate in respect of which a declaration is in force under section 65.
"eligible officer" has the meaning given by section 1272B.
"eligible recipient" has the meaning given by section 1317AAC.
"eligible whistleblower" has the meaning given by section 1317AAA.
"emoluments" means the amount or value of any money, consideration or benefit given, directly or indirectly, to a director of a body corporate in connection with the management of affairs of the body or of any holding company or subsidiary of the body, whether as a director or otherwise, but does not include amounts in payment or reimbursement of out-of-pocket expenses incurred for the benefit of the body.
"employee entitlements contribution order" has the meaning given by subsection 588ZA(1).
"employee share buy-back" means a buy-back under a scheme that:
(a) has as its purpose the acquisition of shares in a company by, or on behalf of:
(i) employees of the company, or of a related body corporate; or
(ii) directors of the company, or a related body corporate, who hold a salaried employment or office in the company or in a related body corporate; and
(b) has been approved by the company in general meeting.
"employee share scheme" : see subsection 1100L(1).
"enforce" , in relation to a security interest in property of a company under administration, includes:
(a) appoint a receiver of property of the company under a power contained in an instrument relating to the security interest; or
(b) obtain an order for the appointment of a receiver of such property for the purpose of enforcing the security interest; or
(c) enter into possession, or assume control, of such property for that purpose; or
(d) appoint a person so to enter into possession or assume control (whether as agent for the secured party or for the company); or
(e) exercise, in relation to property including PPSA retention of title property, as the secured party or as a receiver or person so appointed, a right, power or remedy existing because of the security interest, arising:
(i) under an agreement or instrument relating to the security interest; or
(ii) in the case of a PPSA security interest--under an agreement or instrument relating to a transaction or dealing giving rise to the security interest; or
(iii) under a written or unwritten law; or
(iv) in any other way.
"enforceable code provision" means a provision of an approved code of conduct identified by ASIC under subsection 1101A(2).
"enforcement process" , in relation to property, means:
(a) execution against that property; or
(b) any other enforcement process in relation to that property that involves a court or a sheriff.
"engage in audit activity" : an individual auditor, audit firm or audit company engages in audit activity in relation to an audited body for an audit if the individual auditor, audit firm or audit company:
(a) consents to be appointed as auditor of the audited body for a financial year; or
(b) acts as the auditor of the audited body for a financial year; or
(c) prepares a report in relation to the audited body that is required by this Act to be prepared by:
(i) a registered company auditor; or
(ii) an auditor of the audited body in relation to a financial year or half-year.
(a) do an act; or
(b) omit to perform an act.
"enter into" : a person who:
(a) enters into, or becomes a party to, a relevant agreement in relation to voting shares or other securities; or
(b) exercises an option to have voting shares or other securities issued or granted;
is taken to enter into a transaction in relation to the shares or securities.
"entitlements" of an employee of a company has the meaning given by subsections 596AA(2) and (3).
"entity" : for the purposes of Chapters 2E, 8A and 8B, an entity is any of the following:
(a) a body corporate;
(b) a partnership;
(c) an unincorporated body;
(d) an individual;
(e) for a trust that has only 1 trustee--the trustee;
(f) for a trust that has more than 1 trustee--the trustees together.
Otherwise, entity has the meaning given by section 64A.
"equal access scheme" has the meaning given by subsections 257B(2) and (3).
"equity interest" has the same meaning as in the Income Tax Assessment Act 1997 .
"ESS contribution plan" : see section 1100T.
"ESS interest" : see section 1100M.
"ESS participant" : see subsection 1100L(2).
"event" includes any happening, circumstance or state of affairs.
"examinable affairs" , in relation to a corporation means:
(a) the promotion, formation, management, administration, restructuring or winding up of the corporation; or
(b) any other affairs of the corporation (including anything that is included in the corporation's affairs because of section 53); or
(c) the business affairs of a connected entity of the corporation, in so far as they are, or appear to be, relevant to the corporation or to anything that is included in the corporation's examinable affairs because of paragraph (a) or (b).
"examinable assets and liabilities" , in relation to an entity, means all of the following:
(a) the entity's property and assets:
(i) whether present or future; and
(ii) whether held alone or jointly with any other person or persons; and
(iii) whether or not held as agent, bailee or trustee;
(b) the entity's liabilities:
(i) whether present or future; and
(ii) whether actual or contingent; and
(iii) whether owed alone or jointly with any other person or persons; and
(iv) whether or not owed as trustee.
"examinable operations" , in relation to an entity, means all of the following:
(a) the entity's business, trading, transactions and dealings:
(i) whether alone or jointly with any other entity or entities; and
(ii) whether or not as agent, bailee or trustee;
(b) the entity's profits, income and receipts;
(c) the entity's losses, outgoings and expenditure.
(a) where:
(i) there is attached to a share or debenture a right to participate in a retirement village scheme; and
(ii) each of the other rights, and each interest (if any), attached to the share or debenture is a right or interest that is merely incidental to the right referred to in subparagraph (i);
the share or debenture or a unit in the share or debenture; or
(b) an interest in a managed investment scheme constituted by a right to participate in a retirement village scheme.
"exempt body" has the meaning given by section 66A.
"exempt foreign company" means a foreign company of a kind referred to in subsection 601CK(8), whether or not Division 2 of Part 5B.2 applies to it.
"exempt public authority" means a body corporate that is incorporated within Australia or an external Territory and is:
(a) a public authority; or
(b) an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.
(a) a person has an expectation that a managed investment scheme or a sub-fund of a CCIV will become an Australian passport fund only as set out in section 1216B; and
(b) a person has an expectation that a fund will become a notified foreign passport fund only as set out in section 1216G.
"expert" , in relation to a matter, means a person whose profession or reputation gives authority to a statement made by him or her in relation to that matter.
"extend" , in relation to a period:
(a) includes further extend; and
(b) has a meaning affected by section 70.
(a) means a Territory referred to in section 122 of the Constitution, where an Act makes provision for the government of the Territory as a Territory; but
(b) does not include a Territory covered by the definition of Territory in this section.
Note: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this section.
"extract of particulars" for a company, registered scheme or notified foreign passport fund means a statement given by ASIC that contains either or both of the following:
(a) some or all of the particulars in relation to the company, scheme or fund that are recorded in a register that ASIC maintains, or ensures is maintained, under subsection 1214(1) or 1274(1);
(b) a requirement to provide a particular under section 346B.
"extraordinary resolution" , in relation to a registered scheme, a CCIV or a sub-fund of a CCIV, means a resolution:
(a) of which notice as set out in paragraph 252J(c) has been given; and
(b) that has been passed by at least 50% of the total votes that may be cast by members entitled to vote on the resolution (including members who are not present in person or by proxy).
"Federal Court" means the Federal Court of Australia.
"financial benchmark" has the meaning given by section 908AB.
"financial benchmark data" means:
(a) information obtained to generate or administer a financial benchmark; or
(b) information (including statistical data) that is created or derived from information referred to in paragraph (a).
"financial benchmark rules" means rules made under section 908CA.
"financial benefit" (when used in Chapters 2E and 8B) has a meaning that is affected by section 229.
"financial corporation" means a financial corporation within the meaning of paragraph 51(20) of the Constitution.
"financial market" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"financial product" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
(a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; and
(b) documents of prime entry; and
(c) working papers and other documents needed to explain:
(i) the methods by which financial statements are made up; and
(ii) adjustments to be made in preparing financial statements.
"financial report" means an annual financial report or a half-year financial report prepared under Chapter 2M.
Note: Section 295 deals with the contents of annual financial reports and section 302 deals with the contents of half-year financial reports.
"financial reporting requirements" for a financial report means the requirements imposed under:
(a) section 296 or 297 if the financial report is an annual financial report; or
(b) section 304 or 305 if the financial report is a half-year financial report.
"financial service" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"Financial Services and Credit Panel" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"financial services business" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"financial services civil penalty provision" has the meaning given by subsection 1317E(3).
"financial services licensee" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"financial statements" means annual financial statements under section 295 or half-year financial statements under section 303.
"financial year" , when used in a provision outside Schedule 2, has the following meaning:
(a) for a company, registered scheme or disclosing entity (other than a notified foreign passport fund)--the meaning given by section 323D;
(b) for a notified foreign passport fund--the meaning given by section 323DAA.
"find" , in the case of a reference to a court finding a person guilty of an offence, has a meaning affected by section 73A.
"firm" , in relation to an administrator, restructuring practitioner or liquidator, means:
(a) if the administrator, restructuring practitioner or liquidator is a partner or employee of a partnership (the partnership firm ) that provides advice or other services in relation to Chapter 5 bodies corporate--the partnership firm; or
(b) if the administrator, restructuring practitioner or liquidator is an officer or employee of a body corporate (the body corporate firm ) that provides advice or other services in relation to Chapter 5 bodies corporate--the body corporate firm.
"floating charge" includes a charge that conferred a floating security at the time of its creation but has since become a fixed or specific charge.
"for" , in relation to a fee or tax, includes in respect of.
(a) a body corporate that is incorporated in an external Territory, or outside Australia and the external Territories, and is not:
(i) a corporation sole; or
(ii) an exempt public authority; or
(b) an unincorporated body that:
(i) is formed in an external Territory or outside Australia and the external Territories; and
(ii) under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and
(iii) does not have its head office or principal place of business in Australia.
"foreign holder" of securities means a holder of the securities whose address, as shown in the register in which details of their holding is recorded, is a place outside Australia and the external Territories.
"foreign law" has the same meaning as in the Income Tax Assessment Act 1997 .
"foreign passport fund" means a passport fund the home economy for which is not Australia.
"foreign passport fund product" , when used in a provision outside Chapter 7, has the same meaning as in Chapter 7.
"franchise" means an arrangement under which a person earns profits or income by exploiting a right, conferred by the owner of the right, to use a trade mark or design or other intellectual property or the goodwill attached to it in connection with the supply of goods or services. An arrangement is not a franchise if the person engages the owner of the right, or an associate of the owner, to exploit the right on the person's behalf.
"Full Court" , in relation to a Supreme Court of a State or Territory, includes any court of the State or Territory to which appeals lie from a single judge of that Supreme Court.
"fully paid share" means a share on which no amount remains unpaid.
"fund property" of a notified foreign passport fund means:
(a) contributions of money or money's worth to the fund; and
(b) money that forms part of the fund property under provisions of this Act or the ASIC Act; and
(c) money borrowed or raised by the operator of the fund for the purposes of the fund; and
(d) property acquired, directly or indirectly, with, or with the proceeds of, contributions or money referred to in paragraph (a), (b) or (c); and
(e) income and property derived, directly or indirectly, from contributions, money or property referred to in paragraph (a), (b), (c) or (d).
Note: Paragraph (a)--if what a member contributes to a fund is rights over property, the rights in the property that the member retains do not form part of the fund property.
"Gazette notice means a notice published in the Gazette" .
"general CSF risk warning" has the meaning given by subsection 738ZA(2).
"general law" means the principles and rules of the common law and equity.
"government entity" has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999 .
"group executives" for a consolidated entity means:
(a) the directors of the companies or bodies within the consolidated entity; and
(b) the secretaries of the companies or bodies within the consolidated entity; and
(c) the senior managers of any corporation within the consolidated entity; and
(d) the partners, and senior managers, of any partnership within the consolidated entity; and
(e) the trustees, and senior managers, of any trusts within the consolidated entity; and
(f) the senior managers of any joint venture within the consolidated entity.
"guarantor" , in relation to a debenture, means a body that has guaranteed, or has agreed to guarantee, the repayment of any money deposited or lent to the borrower under the debenture.
"guilty" , in the case of a reference to a court finding a person guilty of an offence, has a meaning affected by section 73A.
"half-year" has the meaning given by subsection 323D(5).
"have" , in relation to information, includes be in possession of the information.
"highest outside purchase price" for a takeover bid is the highest amount paid or payable by the bidder for a security in the bid class under a purchase made outside the bid and during the bid period.
"hold" , in relation to a person, in relation to a document that is, or purports to be, a copy of a licence, means have in the person's possession.
"holding company" , in relation to a body corporate, means a body corporate of which the first body corporate is a subsidiary.
"home economy" , for a passport fund, when used in a provision outside Chapter 8A, has the same meaning as in Chapter 8A.
"home regulator" , for a passport fund, when used in a provision outside Chapter 8A, has the same meaning as in Chapter 8A.
"host economy" , for a passport fund, when used in a provision outside Chapter 8A, has the same meaning as in Chapter 8A.
"hosting arrangement" , in relation to a CSF offer, has the meaning given by subsection 738L(2).
"host regulator" , for a passport fund, when used in a provision outside Chapter 8A, has the same meaning as in Chapter 8A.
"immediate family member" for a person means:
(b) a person who is wholly or partly dependent on the person for financial support.
"in Australia" has the meaning given by section 102C.
"incentive right" : see subsection 1100M(4).
"included" , in relation to an official list, has the meaning given by section 75.
"income year" has the same meaning as in the Income Tax Assessment Act 1997 .
"incorporated in Australia" , in relation to a body corporate, includes incorporated by or under a law of:
(a) the Commonwealth; or
(b) a State; or
(c) an internal Territory.
(a) of a company--means the company's first registration under this Act; and
(b) of any other incorporated body--means the body's incorporation by or under a law (other than this Act).
"individual auditor" means an individual who consents to be appointed, or is appointed, as auditor of a company or registered scheme.
"individual fine formula" means the formula set out in subsection 1311B(3).
"industrial instrument" means:
(a) a contract of employment; or
(b) a law, award, determination or agreement relating to terms or conditions of employment.
"information" includes complaint.
"injury compensation" means compensation payable under any law relating to workers compensation.
"Insolvency Practice Rules" means the rules made by the Minister under section 105- 1 of Schedule 2.
(a) in relation to a person--has the meaning given by subsection 95A(2); and
(b) in relation to a sub-fund of a CCIV--has the meaning given by subsection 1231A(3).
"insolvent transaction" has the meaning given by section 588FC.
"insolvent under administration" means:
(a) a person who, under the Bankruptcy Act 1966 , is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or
(b) a person who, under the law of a foreign country, has the status of an undischarged bankrupt; or
(c) a person any of whose property is subject to control under:
(i) section 50 or Division 2 of Part X of the Bankruptcy Act 1966 ; or
(ii) a corresponding provision of the law of a foreign country; or
(d) a person who has executed a personal insolvency agreement under:
(i) Part X of the Bankruptcy Act 1966 ; or
(ii) the corresponding provisions of the law of a foreign country;
where the terms of the agreement have not been fully complied with; or
(e) a person who is a party (as a debtor) to a debt agreement under:
(i) Part IX of the Bankruptcy Act 1966 ; or
(ii) the corresponding provisions of the law of a foreign country.
"interest" in a managed investment scheme (including a notified foreign passport fund) means a right to benefits produced by the scheme (whether the right is actual, prospective or contingent and whether it is enforceable or not).
"investment" in a company, disclosing entity or other body means:
(a) a share in the company, disclosing entity or body; or
(b) a debenture of the company, disclosing entity or body; or
(c) a legal or equitable interest in:
(i) a share in the company, disclosing entity or body; or
(ii) a debenture of the company, disclosing entity or body; or
(d) an option to acquire (whether by way of issue or transfer) an investment in the company, disclosing entity or body covered by paragraph (a), (b) or (c); or
(e) an option to dispose of an investment in the company, disclosing entity or body covered by paragraph (a), (b) or (c); or
(f) an interest a person holds under an arrangement that is a derivative if:
(i) the consideration to be provided under the arrangement; or
(ii) the value of the arrangement;
is ultimately determined, derived from or varies by reference to an investment in the company, disclosing entity or body covered by paragraph (a), (b), (c), (d) or (e).
To avoid doubt, the consideration to be provided under, or the value of, an arrangement in relation to an index is not ultimately determined, derived from or varies by reference to an investment in the company merely because the investment is taken into account in determining the value of the index.
"investment" in a notified foreign passport fund means:
(a) an interest in the fund; or
(b) a legal or equitable interest in an interest in the fund; or
(c) an option to acquire (whether by way of issue or transfer) an investment in the fund covered by paragraph (a) or (b); or
(d) an option to dispose of an investment in the fund covered by paragraph (a) or (b); or
(e) an interest a person holds under an arrangement that is a derivative if:
(i) the consideration to be provided under the arrangement; or
(ii) the value of the arrangement;
is ultimately determined, derived from or varies by reference to an investment in the fund covered by paragraph (a), (b), (c) or (d); or
(f) an investment in the operator of the fund.
To avoid doubt, the consideration to be provided under, or the value of, an arrangement in relation to an index is taken not to be ultimately determined, derived from or vary by reference to an investment in the fund merely because the investment is taken into account in determining the value of the index.
"investment" in a registered scheme means:
(a) an interest in the scheme; or
(b) a legal or equitable interest in an interest in the scheme; or
(c) an option to acquire (whether by way of issue or transfer) an investment in the scheme covered by paragraph (a) or (b); or
(d) an option to dispose of an investment in the scheme covered by paragraph (a) or (b); or
(e) an interest a person holds under an arrangement that is a derivative if:
(i) the consideration to be provided under the arrangement; or
(ii) the value of the arrangement;
is ultimately determined, derived from or varies by reference to an investment in the scheme covered by paragraph (a), (b), (c) or (d); or
(f) an investment in the responsible entity of the scheme.
To avoid doubt, the consideration to be provided under, or the value of, an arrangement in relation to an index is taken not to be ultimately determined, derived from or vary by reference to an investment in the scheme merely because the investment is taken into account in determining the value of the index.
"investment contract" means any contract, scheme or arrangement that, in substance and irrespective of its form, involves the investment of money in or under such circumstances that the investor acquires or may acquire an interest in, or right in respect of, property, whether in this jurisdiction or elsewhere, that, under, or in accordance with, the terms of investment will, or may at the option of the investor, be used or employed in common with any other interest in, or right in respect of, property, whether in this jurisdiction or elsewhere, acquired in or under like circumstances.
"involved" , in relation to a contravention, has the meaning given by section 79.
(a) in relation to interests in a managed investment scheme--make available; and
(b) otherwise--circulate, distribute and disseminate.
Note: When issue is used in Chapter 7 in relation to a financial product it has a meaning affected by section 761E.
"Judge" means a judge of the Court.
"judgment" means a judgment, decree or order, whether final or interlocutory.
"key management personnel" for an entity has the same meaning as in the accounting standards.
"large proprietary company" has the meaning given by subsection 45A(3).
"law" of a State or Territory means a law of, or in force in, the State or Territory.
Note: This definition does not affect the meaning of law when used otherwise than in a phrase such as "law of a State or Territory". Examples of such a use is in the phrase "any provision of any law" in section 100A and the phrase "law of the Commonwealth" in section 156.
"lawyer" means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person.
"lead auditor" has the meaning given by section 324AF.
"lease" does not include a lease of goods that gives rise to a PPSA security interest in the goods.
Note: An interest that arises under a lease of goods that in substance secures the payment or performance of an obligation, or that arises under a PPS lease within the meaning of the Personal Property Securities Act 2009 , may be a PPSA security interest (see sections 12 and 13 of that Act and the definition of PPSA security interest in section 51 of this Act).
"leave of absence" means long service leave, extended leave, recreation leave, annual leave, sick leave or any other form of leave of absence from employment.
"liabilities" , in relation to a sub-fund of a CCIV, has the meaning given by section 1233L.
"licensed trustee company" has the meaning given by Chapter 5D.
(a) a company limited by shares; or
(b) a company limited by guarantee; or
(c) a company limited both by shares and guarantee;
but does not include a no liability company.
(a) the incurring of a debt and a contravention of subsection 596AC(1), (2), (3) or (4) are linked if they are linked under subsection 596AC(10); and
(b) the disposition of a company's property and a contravention of subsection 596AC(1), (2), (3) or (4) are linked if they are linked under subsection 596AC(10A).
"linked to a refusal or failure to give effect to a determination made by AFCA" has the meaning given by section 910C.
(a) has a meaning affected by paragraph 530(b) (which deals with 2 or more persons appointed as liquidators); and
(b) in Chapter 7, includes a provisional liquidator.
"liquidity period" , for an ESS interest: see subsection 1100ZB(7).
(a) a company, managed investment scheme or other body is listed if it is included in the official list of a prescribed financial market operated in this jurisdiction; and
(b) a retail CCIV that is not listed because of paragraph (a) is listed if:
(i) the retail CCIV has only one sub-fund; and
(ii) that sub-fund is included in the official list of a prescribed financial market operated in this jurisdiction; and
(c) a sub-fund of a retail CCIV is listed if:
(i) the sub-fund is included in the official list of a prescribed financial market operated in this jurisdiction; or
(ii) the retail CCIV is listed because of paragraph (a).
"listed corporation" means a body corporate that is included in an official list of a prescribed financial market.
"listed disclosing entity" has the meaning given by subsection 111AL(1).
"listing market" , in relation to a listed disclosing entity, has the meaning given by subsection 111AE(1), (1A) or (1B).
"listing rules" of a financial market, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"local agent" , in relation to a foreign company, means a person who is a local agent of the foreign company by virtue of subsection 601CG(5).
"lodge" means lodge with ASIC in this jurisdiction.
"lower court" means a court of a State or Territory that is not a superior court.
"machine-copy" , in relation to a document, means a copy made of the document by any machine in which, or process by which, an image of the contents of the document is reproduced.
"made" , in relation to a CSF offer, has the meaning given by subsection 738N(1).
"managed investment product" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"managed investment scheme" means:
(a) a scheme that has the following features:
(i) people contribute money or money's worth as consideration to acquire rights ( interests ) to benefits produced by the scheme (whether the rights are actual, prospective or contingent and whether they are enforceable or not);
(ii) any of the contributions are to be pooled, or used in a common enterprise, to produce financial benefits, or benefits consisting of rights or interests in property, for the people (the members ) who hold interests in the scheme (whether as contributors to the scheme or as people who have acquired interests from holders);
(iii) the members do not have day-to-day control over the operation of the scheme (whether or not they have the right to be consulted or to give directions); or
(b) a time-sharing scheme;
but does not include the following:
(c) a partnership that has more than 20 members but does not need to be incorporated or formed under an Australian law because of regulations made for the purposes of subsection 115(2);
(d) a body corporate (other than a body corporate that operates as a time sharing scheme);
(e) a scheme in which all the members are bodies corporate that are related to each other and to the body corporate that promotes the scheme;
(f) a franchise;
(g) a statutory fund maintained under the Life Insurance Act 1995 ;
(h) a regulated superannuation fund, an approved deposit fund, a pooled superannuation trust, or a public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993 ;
(i) a scheme operated by an Australian ADI in the ordinary course of its banking business;
(j) the issue of debentures or convertible notes by a body corporate;
(k) a barter scheme under which each participant may obtain goods or services from another participant for consideration that is wholly or substantially in kind rather than in cash;
(l) a retirement village scheme operating within or outside Australia:
(i) under which the participants, or a majority of them, are provided, or are to be provided, with residential accommodation within a retirement village (whether or not the entitlement of a participant to be provided with accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is, or is to be, provided); and
(ii) which is not a time-sharing scheme;
(m) a scheme that is operated by a co-operative company registered under Part VI of the Companies (Co-operative) Act 1943 of Western Australia or under a previous law of Western Australia that corresponds to that Part;
(ma) a contribution plan;
(maa) an ESS contribution plan for an offer of ESS interests that is eligible to be made under Division 1A of Part 7.12;
(mb) the provision of a crowd-funding service (as defined in section 766F);
(n) a scheme of a kind declared by the regulations not to be a managed investment scheme.
Note 1: Paragraph (c)--A partnership with less than 20 members will usually not require registration because of paragraph 601ED(1)(a) and under section 115 a partnership with more than 20 members can only operate if covered by regulations made for the purposes of subsection 115(2).
Note 2: Paragraphs (c) and (i) have an extended meaning in relation to Chapter 8 (see subsection 1200A(3)).
Note 3: Under section 1213E, a notified foreign passport fund is to be treated as a managed investment scheme for the purposes of this Act.
"manager" has a meaning affected by section 90.
"managerial or executive office" has the meaning given by section 200AA.
"managing controller" , in relation to property of a corporation, means:
(a) a receiver and manager of that property; or
(b) any other controller of that property who has functions or powers in connection with managing the corporation;
and has a meaning affected by paragraph 434G(b) (which deals with 2 or more persons appointed as managing controllers).
"mandatory code of conduct" means a code of conduct that is declared by regulations under section 1101AE to be mandatory.
"marketable securities" means debentures, stocks, shares or bonds of any Government, of any local government authority or of any body corporate, association or society, and includes any right or option in respect of shares in any body corporate and any interest in a managed investment scheme.
"market bid" means a takeover bid made under Chapter 6 as a market bid (see section 616).
"market integrity rules" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"market traded option" means an option declared by an operator of a prescribed financial market to be a market traded option.
"maximum subscription amount" , in relation to a CSF offer, has the meaning given by subsection 738L(7).
"MCI" (short for mutual capital instrument) has the meaning given by section 167AD.
"MCI amendment resolution" has the meaning given by section 167AI.
"MCI mutual entity" has the meaning given by section 167AC.
(a) in relation to a managed investment scheme ¾ means a person who holds an interest in the scheme; or
(c) in relation to a sub-fund of a CCIV--means a person who is a member under subsection 1222Q(3); or
(e) in relation to a company--a person who is a member under section 231.
"members' voluntary winding up" means a winding up under Part 5.5 where a declaration has been made and lodged pursuant to section 494.
"Memorandum of Cooperation" , when used in a provision outside Chapter 8A, has the same meaning as in Chapter 8A.
"minerals" means minerals in any form, whether solid, liquefied or gaseous and whether organic or inorganic.
"minimum holding buy-back" means a buy-back of all of a holder's shares in a listed corporation if the shares are less than a marketable parcel within the meaning of the rules of the relevant financial market.
"minimum subscription amount" , in relation to a CSF offer, has the meaning given by subsection 738L(8).
"mining purposes" means any or all of the following purposes:
(a) prospecting for ores, metals or minerals;
(b) obtaining, by any mode or method, ores, metals or minerals;
(c) the sale or other disposal of ores, metals, minerals or other products of mining;
(d) the carrying on of any business or activity necessary for, or incidental to, any of the foregoing purposes;
whether in Australia or elsewhere, but does not include quarrying operations for the sole purpose of obtaining stone for building, roadmaking or similar purposes.
"misconduct" includes fraud, negligence, default, breach of trust and breach of duty.
"modifications" includes additions, omissions and substitutions.
"money" includes a payment order.
"mutual entity" has the meaning given by section 51M.
"national newspaper" : see subsection 254Q(4A).
"NCSC" means the National Companies and Securities Commission.
"necessary transfer documents" for the transfer of securities to a person means the documents that are sufficient to enable the person to become the holder of the securities.
"negative" , in relation to a document, means a transparent negative photograph used, or intended to be used, as a medium for reproducing the contents of the document, and includes a transparent photograph made from surface contact with the original negative photograph.
"negative solvency resolution" means a resolution by the directors of a company that, in their opinion, there are not reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.
"negotiable instrument" , in relation to a body corporate, means:
(a) a bill of exchange, promissory note, cheque or other negotiable instrument; or
(b) an indorsement on, or order in, a bill of exchange, promissory note, cheque or other negotiable instrument; or
(c) a letter of credit;
of, or purporting to be issued or signed by or on behalf of, the body.
"no liability company " means a company that is registered as, or converts to, a no liability company under this Act.
Note 1: A no liability company can be registered under section 118 or 601BD. A company can convert to a no liability company under Part 2B.7.
Note 2: A no liability company must have solely mining purposes and have no contractual right to recover unpaid calls (see subsection 112(2)).
"nominated electronic address" , in relation to the addressee of an electronic communication, means:
(a) the most recent electronic address nominated by the addressee to the originator of the electronic communication as the electronic address for receiving electronic communications; or
(b) if:
(i) the addressee has nominated an electronic address as mentioned in paragraph (a) and the originator knows, or there are reasonable grounds to believe, that the address is not a current electronic address for the addressee; or
(ii) the addressee has not nominated an electronic address as mentioned in paragraph (a);
an electronic address that the originator believes on reasonable grounds to be a current electronic address for the addressee for receiving electronic communications.
"non-audit services provider" for an auditor conducting an audit means a person who:
(a) is not a professional member of the audit team conducting the audit of the audited body; and
(b) is either:
(i) if the auditor is an individual auditor--an employee of the individual auditor (or of an entity acting for, or on behalf of, the individual auditor); or
(ii) if the auditor is an audit firm--a member of the audit firm or senior manager of the audit firm (or of an entity acting for, or on behalf of, the audit firm); or
(iii) if the auditor is an audit company--a director of the audit company or a senior manager of the audit company (or of an entity acting for, or on behalf of, the audit company); and
(c) provides, or has provided, services (other than services related to the conduct of an audit) to the audited body.
"non-shareholder mutual member" of an MCI mutual entity means a person who is a member of the entity otherwise than as a holder of a share (whether or not the person also holds one or more shares in the entity).
"non-voting share" , in relation to a body corporate, means an issued share in the body that is not a voting share in the body.
"notice" includes a circular and an advertisement.
"notified foreign passport fund" : see section 1213C.
"of" , in relation to financial products, means, in the case of interests in a managed investment scheme, made available by.
"offence" means an offence against a law of the Commonwealth or a State or Territory.
"offence based on" a particular provision of this Act means, unless a contrary intention appears:
(a) if that provision creates an offence--an offence against that provision, or an offence against section 1314 that relates to that provision; or
(b) if section 1311 creates an offence relating to that provision--an offence against section 1311 or 1314 that relates to that provision; or
(c) if another provision creates an offence relating to that provision--an offence against that other provision or section 1314 that relates to that other provision.
"offer information statement" means an offer information statement that is lodged with ASIC.
"offer of simple corporate bonds" has the meaning given by section 713A.
"offer period" for a takeover bid is the period for which offers under the bid remain open.
"offer platform" , in relation to a CSF offer, has the meaning given by subsection 738L(6).
"offer-specific prospectus" , in relation to an offer of simple corporate bonds, has the meaning given by subsection 713D(1).
"officer" of a corporation (other than a CCIV) means:
(a) a director or secretary of the corporation; or
(b) a person:
(i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
(ii) who has the capacity to affect significantly the corporation's financial standing; or
(iii) in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors or the corporation); or
(c) a receiver, or receiver and manager, of the property of the corporation; or
(d) an administrator of the corporation; or
(e) an administrator of a deed of company arrangement executed by the corporation; or
(ea) a restructuring practitioner for the corporation; or
(eb) a restructuring practitioner for a restructuring plan made by the corporation; or
(f) a liquidator of the corporation; or
(g) a trustee or other person administering a compromise or arrangement made between the corporation and someone else.
Note: Section 201B contains rules about who is a director of a corporation.
"officer" of a corporation that is a CCIV has the meaning given by section 1224B.
"officer" of an entity that is neither an individual nor a corporation means:
(a) a partner in the partnership if the entity is a partnership; or
(b) an office holder of the unincorporated association if the entity is an unincorporated association; or
(c) a person:
(i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or
(ii) who has the capacity to affect significantly the entity's financial standing.
"officer of the Commonwealth" has the same meaning as in paragraph 75(v) of the Constitution.
(a) appointment or employment by the Commonwealth, or the performance of services for the Commonwealth; or
(b) the exercise of powers or performance of functions under a delegation by the Registrar.
"off-market bid" means a takeover bid made under Chapter 6 as an off-market bid (see section 616).
"old Corporations Law" , in relation to a State or Territory, has the same meaning as it has in Part 10.1.
old Division 11 of Part 11.2 transitionals means the following:
(a) the provisions of Division 11 of Part 11.2 of the old Corporations Law of each State or Territory in this jurisdiction, to the extent they continue to have effect because of section 1408 of this Act; and
(b) if regulations for the purposes of subsection 1408(3) deal with a matter or matters dealt with in those provisions--the regulations that so deal with the matter or matters.
old Division 12 of Part 11.2 transitionals means the following:
(a) the provisions of Division 12 of Part 11.2 of the old Corporations Law of each State or Territory in this jurisdiction, to the extent they continue to have effect because of section 1408 of this Act; and
(b) if regulations for the purposes of subsection 1408(3) deal with a matter or matters dealt with in those provisions--the regulations that so deal with the matter or matters.
"on" , in relation to a financial market, includes at or by means of.
"on behalf of" includes on the instructions of.
"on-market" : a transaction of any kind is an on-market transaction if it is effected on a prescribed financial market and is:
(a) an on-market transaction as defined in the rules governing the operation of the market; or
(b) if those rules do not define on-market transactions--effected in the ordinary course of trading on the market.
"on-market buy-back" means a buy-back by a listed corporation on a prescribed financial market in the ordinary course of trading on that market.
"open" , in relation to a CSF offer, has the meaning given by subsection 738N(2).
"operated in this jurisdiction" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"operating rules" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"operator" , of a passport fund, when used in a provision outside Chapter 8A, has the same meaning as in Chapter 8A.
"outside this jurisdiction" has a meaning affected by subsection 102B(2).
"outstanding property" , in relation to a body corporate that has been dissolved or deregistered, means outstanding property (other than unpaid capital, whether called or uncalled) that was vested in the body, to which it was entitled, or over which it had a disposing power, when it was dissolved or deregistered, but that neither the body nor its liquidator got in, realised on or otherwise disposed of or dealt with.
"paid parental leave employer" has the meaning given by subsection 600AA(2).
"Panel" means the Takeovers Panel.
"parent" : without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in this section.
Part 5.1 body means:
(a) a company; or
(b) a registrable body that is registered under Division 1 or 2 of Part 5B.2.
Part 5.7 body means:
(a) a registrable body that is a registrable Australian body and:
(i) is registered under Division 1 of Part 5B.2; or
(ii) is not registered under that Division but carries on business in this jurisdiction and outside its place of origin; or
(b) a registrable body that is a foreign company and:
(i) is registered under Division 2 of Part 5B.2; or
(ii) is not registered under that Division but carries on business in Australia; or
(c) a partnership, association or other body (whether a body corporate or not) that consists of more than 5 members and that is not a registrable body;
but does not include an Aboriginal and Torres Strait Islander corporation.
Note: The winding up of Aboriginal and Torres Strait Islander corporations is dealt with in Part 11-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 .
Part 7.7A civil penalty provision means any of the following provisions:
(a) subsections 961K(1) and (2) (financial services licensee responsible for breach of certain best interests duties);
(b) section 961L (financial services licensee to ensure compliance with certain best interests duties);
(c) subsection 961Q(1) (authorised representative responsible for breach of certain best interests duties);
(ca) subsection 962G(4) (fee recipient must give fee disclosure statement);
(d) section 962P (charging ongoing fee after termination of ongoing fee arrangement);
(e) subsection 962R(4) (fee recipient must not deduct ongoing fees without consent);
(ea) subsection 962S(5) or (8) (fee recipient must not arrange for deduction of ongoing fees without consent or accept such deductions);
(eb) subsection 962U(3) (fee recipient must confirm receipt of variation or withdrawal of consent for deductions of ongoing fees);
(ec) subsection 962V(3) (fee recipient must give written notice of cessation of consent to account provider);
(f) subsections 963E(1) and (2) (financial services licensee must not accept conflicted remuneration);
(g) section 963F (financial services licensee must ensure representatives do not accept conflicted remuneration);
(h) subsection 963G(1) (authorised representative must not accept conflicted remuneration);
(i) section 963J (employer must not pay employees conflicted remuneration);
(j) section 963K (financial product issuer or seller must not give conflicted remuneration to financial services licensee or representative);
(ja) section 963P (person covered by section 963M must pay amount etc. in accordance with regulations);
(k) subsection 964A(1) (platform operator must not accept volume-based shelf-space fees);
(l) subsections 964D(1) and (2) (financial services licensee must not charge asset-based fees on borrowed amounts);
(m) subsection 964E(1) (authorised representative must not charge asset-based fees on borrowed amounts);
(n) section 965 (anti-avoidance of Part 7.7A provisions).
Part 10.1 transitionals means the provisions of Part 10.1 and of regulations for the purposes of those provisions.
"participant , when used in a provision (the relevant provision" ) outside Chapter 7 in relation to a clearing and settlement facility or a financial market, has the same meaning as it has in Chapter 7 in relation to a clearing and settlement facility or a financial market, except that it does not include a reference to a recognised affiliate (within the meaning of that Chapter) in relation to such a facility or market unless regulations for the purposes of this definition provide that, in the relevant provision, it does include a recognised affiliate.
"party" , in relation to a transaction that has been completed, given effect to, or terminated, includes a person who was a party to the transaction.
"passport fund" , when used in a provision outside Chapter 8A, has the same meaning as in Chapter 8A.
"Passport Rules" : see section 1211A.
"payment" (when used in Division 2 of Part 2D.2 (sections 200 to 200J) includes a payment by way of damages for breach of contract.
"payment order" means a cheque (including a cheque that a bank or other institution draws on itself), bank draft, money order or postal order.
"payment period" , in relation to an infringement notice issued under Part 9.4AB, has the meaning given by section 1317DAQ.
"person" , when used in Division 2 of Part 2D.2 (sections 200 to 200J), includes a superannuation fund.
(a) in relation to a body corporate at a particular time, means:
(i) in the case of a body incorporated at that time in a State or Territory--that State or Territory; or
(ii) otherwise--the place of the body's incorporation at that time; or
(b) in relation to an unincorporated body--the State or Territory, or other place, in which the body is formed.
"platform" includes a website or other electronic facility.
"play a significant role" : a person plays a significant role in the audit of a company or a registered scheme for a financial year if:
(a) the person is appointed as an individual auditor of the company or scheme for that financial year and:
(i) acts as an auditor for the company or scheme for that financial year; or
(ii) prepares an audit report for the company or the scheme in relation to a financial report of the company or scheme for that financial year or for a half-year falling within that financial year; or
(b) a firm or company is appointed as an auditor of the company or scheme for that financial year and the person:
(i) is a registered company auditor; and
(ii) acts, on behalf of the firm or company, as a lead auditor, or review auditor, in relation to an audit of the company or scheme for that financial year or for a half-year falling within that financial year.
"pooling determination" means a determination under subsection 571(1).
"pooling order" means an order under subsection 579E(1).
"positive solvency resolution" means a resolution by the directors of a company that, in their opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.
"possession" has a meaning affected by section 86.
"power" includes an authority.
"PPSA retention of title property" (short for Personal Property Security Act retention of title property) has the meaning given by section 51F.
"PPSA security interest" (short for Personal Property Security Act security interest) has the meaning given by section 51.
(a) a structure, building, aircraft, vehicle or vessel; and
(b) any land or place (whether enclosed or built on or not); and
(c) a part of a structure, building, aircraft, vehicle or vessel or of such a place.
"prescribed derivative trade repository" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"prescribed financial market" means a financial market that is prescribed by regulations made for the purposes of this definition.
"printed" includes type-written, lithographed or reproduced by any mechanical means.
"procure" includes cause.
"Product Disclosure Statement" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
Note: For the effect of the lodgment of a Replacement Product Disclosure Statement, see section 1014J.
"professional accounting body" has the same meaning as in the ASIC Act.
"professional employee" of an individual auditor, audit firm or audit company means an employee of the auditor, firm or company who participates in the conduct of the audits on behalf of the auditor, firm or company and, in the course of doing so, exercises professional judgment in relation to the application of or compliance with:
(a) accounting standards; or
(b) auditing standards; or
(c) the provisions of this Act dealing with financial reporting and the conduct of audits.
"professional investor" means a person in relation to whom one or more of the following paragraphs apply:
(a) the person is a financial services licensee whose Australian financial services licence covers the provision of financial services that are not limited to claims handling and settling services;
(b) the person is a body regulated by APRA, other than a trustee of any of the following (within the meaning of the Superannuation Industry (Supervision) Act 1993 ):
(i) a superannuation fund;
(ii) an approved deposit fund;
(iii) a pooled superannuation trust;
(iv) a public sector superannuation scheme;
(c) the person is a registered entity within the meaning of the Financial Sector (Collection of Data) Act 2001 ;
(d) the person is the trustee of:
(ii) an approved deposit fund; or
(iii) a pooled superannuation trust; or
(iv) a public sector superannuation scheme;
within the meaning of the Superannuation Industry (Supervision) Act 1993 and the fund, trust or scheme has net assets of at least $10 million;
(e) the person controls at least $10 million (including any amount held by an associate or under a trust that the person manages);
(f) the person is a listed entity, or a related body corporate of a listed entity;
(g) the person is an exempt public authority;
(h) the person is a body corporate, or an unincorporated body, that:
(i) carries on a business of investment in financial products, interests in land or other investments; and
(ii) for those purposes, invests funds received (directly or indirectly) following an offer or invitation to the public, within the meaning of section 82, the terms of which provided for the funds subscribed to be invested for those purposes;
(i) the person is a foreign entity that, if established or incorporated in Australia, would be covered by one of the preceding paragraphs.
Note: A CCIV can also be a professional investor, see section 1241K.
"professional member of an audit team" has the meaning given by section 324AE.
"profile statement" means a profile statement that is lodged with ASIC.
"property" means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action, and:
(a) in Part 5.3A (administration)--has a meaning affected by section 435B; and
(aa) in Part 5.3B (restructuring)--has a meaning affected by section 452B; and
(b) in Part 5.4B (winding up in insolvency or by the Court)--has a meaning affected by section 465; and
(c) in Part 5.5 (voluntary winding up)--has a meaning affected by section 489F; and
(d) in Part 5.6 (winding up generally)--has a meaning affected by section 513AA; and
(e) in Part 5.7B (recovering property or compensation for creditors of insolvent company)--has a meaning affected by section 588C; and
(f) in Part 5.8 (offences relating to external administration)--has a meaning affected by subsection 589(5); and
(g) in Part 5A.1 (deregistration, and transfer of registration, of companies)--has a meaning affected by section 601; and
(h) in Part 5B.2 (registrable bodies)--has a meaning affected by section 601C; and
(i) in Schedule 2 (the Insolvency Practice Schedule)--has a meaning affected by section 5-26 of that Schedule.
Note: A reference in this Act to the property of a corporation does not include a reference to any PPSA retention of title property of the corporation, unless provided otherwise expressly or by necessary implication (see section 51F). The sections mentioned in paragraphs (a) to (h) extend references to property of a corporation in Parts of this Act to PPSA retention of title property (or to certain PPSA retention of title property).
"proportional takeover approval provisions" , in relation to a company, means provisions of the kind referred to in subsection 648D(1) that are contained in, or that it is proposed to insert in, the constitution of the company.
"proportional takeover bid" means an off-market bid for a specified proportion of the securities in the bid class (see paragraph 618(1)(b)).
"proposed action notice" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"proprietary company" has the meaning given by subsection 45A(1).
"prospectus" means a prospectus that is lodged with ASIC.
"protected information" means information:
(a) obtained by a person in the course of the person's official employment; and
(b) disclosed to the person or another person, or obtained by the person or another person:
(i) under, or in relation to, this Act; or
(ii) under another law of the Commonwealth;
in connection with particular functions or powers of the Registrar.
"prove" includes establish in any way (for example, but without limitation, through the operation of a presumption for which this Act or a law of a State or Territory provides).
(a) lending money; or
(b) giving guarantees or security for loans made by someone else; or
(c) drawing, accepting, indorsing, negotiating or discounting a bill of exchange, cheque, payment order or promissory note so that someone can obtain funds.
"provision" of a law includes:
(a) a subsection, section, Subdivision, Division, Part or Chapter of the law; and
(b) a Schedule, or an item in a Schedule, to the law.
"provisional liquidator" has a meaning affected by paragraph 530AA(b) (which deals with 2 or more persons appointed as provisional liquidators).
"public company" means a company other than a proprietary company or a CCIV and:
(a) in section 195 and Chapter 2E, includes a body corporate (other than a prescribed body corporate) that:
(i) is incorporated in a State or an internal Territory, but not under this Act; and
(ii) is included in the official list of a prescribed financial market; and
(b) in Chapter 2E does not include a company that is not required to have "Limited" in its name because of section 150 or 151.
"public document" , in relation to a body corporate, has the meaning given by section 88A.
(a) in relation to a notice--means, in Chapter 7, publish by any means, including in a newspaper or periodical, on the internet, by broadcasting or televising or in a cinematograph film; and
(b) in any case--includes issue.
"qualified accountant" has the meaning given by section 88B.
"qualified privilege" has the meaning given by section 89.
"quarter day" means 31 March, 30 June, 30 September or 31 December.
"quotation" , in relation to financial products or in relation to a financial market, includes the displaying or providing, on a financial market, of information concerning:
(a) if offers to dispose of, purchase or exchange the financial product at particular prices, or for particular consideration, are made or accepted on that financial market--those prices or that consideration; or
(b) if offers or invitations are made on that financial market, being offers or invitations that are intended, or may reasonably be expected, to result in the making or acceptance of offers to dispose of, purchase or exchange the financial products at particular prices, or for particular consideration--those prices or that consideration; or
(c) in any case--the price at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to dispose of, purchase or exchange the financial products.
"quoted ED securities" has the meaning given by section 111AM.
"quoted security" means a security that is quoted on a prescribed financial market.
"receive" , in relation to an electronic communication, has a meaning affected by section 105A.
"receiver" has a meaning affected by paragraph 434D(b) (which deals with 2 or more persons appointed as receivers).
"receiver and manager" has a meaning affected by section 90 and has a meaning affected by paragraph 434E(b) (which deals with 2 or more persons appointed as receivers and managers).
"recognised offer" has the meaning given by section 1200B.
"redeemable preference share" means a preference share in a body corporate that is, or at the body's option is to be, liable to be redeemed.
"redeemable share" , in a CCIV, has the meaning given by subsection 1230B(4).
(a) in relation to a sub-fund, and a share in a CCIV--has the meaning given by subsection 1230(1); and
(b) in relation to a sub-fund, and a class of shares in a CCIV--has the meaning given by subsection 1230A(2); and
(c) in relation to a sub-fund, and a debenture issued by a CCIV--has the meaning given by subsection 1231N(1).
"referring State" has the meaning given by section 4.
"register" means register under this Act.
"registered Australian body" means a registrable Australian body that is registered under Division 1 of Part 5B.2.
"registered body" means a registered Australian body or a registered foreign company.
"registered company auditor" :
(a) means a person registered as an auditor under Part 9.2; and
(b) in relation to a body corporate that is not a company--includes a person qualified to act as the body's auditor under the law of the body's incorporation.
"registered foreign company" means a foreign company that is registered under Division 2 of Part 5B.2.
"registered liquidator" has the same meaning as in section 5- 5 of Schedule 2.
"registered office" , in relation to a company or registered body, means the registered office of the company or body under section 142 or 601CT, as the case requires.
"registered scheme" means a managed investment scheme that is registered under section 601EB.
"registered tax agent" has the same meaning as in the Tax Agent Services Act 2009 .
"registrable Australian body" means:
(a) a body corporate, not being:
(i) a company; or
(ii) an exempt public authority; or
(iii) a corporation sole; or
(b) an unincorporated body that, under the law of its place of formation:
(i) may sue or be sued; or
in the name of its secretary or of an officer of the body duly appointed for that purpose;
but does not include a foreign company.
"registrable body" means a registrable Australian body or a foreign company.
"registrable superannuation entity" has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .
"Registrar" has the meaning given by section 9C.
"regulated entity" has the meaning given by section 1317AAB.
"Regulatory Powers Act" means the Regulatory Powers (Standard Provisions) Act 2014 .
"related body corporate" , in relation to a body corporate, means a body corporate that is related to the first-mentioned body by virtue of section 50.
"related entity" , in relation to a body corporate, means any of the following:
(a) a promoter of the body;
(b) a relative of such a promoter;
(c) a relative of a spouse of such a promoter;
(d) a director or member of the body or of a related body corporate;
(e) a relative of such a director or member;
(f) a relative of a spouse of such a director or member;
(g) a body corporate that is related to the first-mentioned body;
(h) a beneficiary under a trust of which the first-mentioned body is or has at any time been a trustee;
(i) a relative of such a beneficiary;
(j) a relative of a spouse of such a beneficiary;
(k) a body corporate one of whose directors is also a director of the first-mentioned body;
(l) a trustee of a trust under which a person is a beneficiary, where the person is a related entity of the first-mentioned body because of any other application or applications of this definition.
(a) when used in Chapter 2E (other than in relation to a CCIV) has the meaning given by section 228; and
(aa) when used in Chapters 2E and 8B, in relation to a CCIV, has the meaning given by section 1227E; and
(b) when used in Part 6D.3A--has the meaning given by subsection 738G(3); and
(c) when used in Division 2 of Part 5C.10, Chapter 8A and the Passport Rules for this jurisdiction--has the meaning given by the Passport Rules for this jurisdiction.
"relation-back day" has the meaning given by section 91.
"relative" , in relation to a person, means the spouse, parent or remoter lineal ancestor, child or remoter issue, or brother or sister of the person.
"relevant agreement" means an agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal; and
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights.
"relevant date" , in relation to a winding up, means the day on which the winding up is taken because of Division 1A of Part 5.6 to have begun.
Note: Subsection 553(1B) modifies the operation of this definition for debts and claims that arise while a company is under a deed of company arrangement if the deed terminates immediately before the winding up.
"relevant financial market" , for a listed company, listed registered scheme or listed notified foreign passport fund means:
(a) the prescribed financial market on which the company, scheme or fund is listed; or
(b) if the company, scheme or fund is listed on 2 or more prescribed financial markets--each of those markets.
"relevant interest" , in relation to securities, has a meaning given by sections 608 and 609.
"relevant market operator" , for a listed company, listed registered scheme or listed notified foreign passport fund means:
(a) if there is only one relevant financial market for the company, scheme or fund--the operator of that relevant financial market; or
(b) if there is 2 or more relevant financial markets for the company, scheme or fund--each of the operators of each of those relevant financial markets.
"relinquishment order" has the meaning given by subsection 1317GAB(1).
"remedial order" means an order that:
(a) restrains a person from exercising any voting or other rights attached to securities; or
(b) directs a body corporate not to make or to defer payment of an amount due from the body corporate in respect of securities; or
(c) restrains a person from acquiring securities or an interest in securities; or
(d) directs a person to dispose of, or not to dispose of, securities or interests in securities; or
(e) directs the disposal referred to in paragraph (d):
(i) to be made within a specified time; or
(ii) to be made subject to specified conditions; or
(iii) not to be made to a specified person or persons or to a specified class or classes of persons;
(f) directs a specified person to pay to the body corporate an amount equal to any profit or benefit that the person obtains because of the disposal referred to in paragraph (d); or
(g) vests securities, or an interest in securities, in ASIC; or
(h) directs a body corporate not to register the transfer or transmission of securities; or
(i) cancels securities issued as consideration for offers under a takeover bid; or
(j) declares that an exercise of the voting or other rights attached to securities be disregarded; or
(k) cancels or declares voidable:
(i) an agreement or offer relating to a takeover bid, or a proposed takeover bid; or
(ii) any other agreement or offer in connection with the acquisition of securities or relevant interests in securities;
(l) directs a person to give specified information to the holders of securities of a body corporate; or
(m) directs a body corporate not to issue securities to a person; or
(n) if an order of a kind referred to in paragraphs (a) to (m) is in force in respect of securities--directs the registered holder of the securities to give written notice of the order to any person whom the holder knows to be entitled to exercise a right to vote attached to those securities; or
(o) directs a body corporate to repeal or modify its existing constitution or adopt a particular constitution; or
(p) if a person has failed to comply with a requirement of Chapter 6, 6A, 6B or 6C -- directs that person to comply with that requirement.
"remuneration" of an officer or employee of a corporation. A benefit given to an officer or employee of a corporation is remuneration if and only if the benefit, were it received by a director of the corporation, would be remuneration of the director for the purposes of an accounting standard that deals with disclosure in companies' financial reports of information about directors' remuneration. For the purposes of this definition, the following are not officers of a corporation:
(a) a receiver, or receiver and manager, of the property of the corporation;
(b) an administrator of the corporation;
(c) an administrator of a deed of company arrangement executed by the corporation;
(ca) a restructuring practitioner for the corporation;
(cb) a restructuring practitioner for a restructuring plan made by the corporation;
(d) a liquidator of the corporation;
(e) a trustee or other person administering a compromise or arrangement made between the corporation and someone else.
"remuneration committee" has the meaning given by paragraph 206K(2)(b).
"remuneration consultant" means a person:
(a) who makes a remuneration recommendation under a contract for services with the company to whose key management personnel the recommendation relates; and
(b) who is not an officer or employee of the company.
"remuneration recommendation" has the meaning given by section 9B.
"remuneration report" means the section of the directors' report for a financial year for a listed public company that is included under subsection 300A(1).
"renounceable option" means an assignable option to have an allotment of shares in a body corporate made to the holder of the option.
"Replacement Product Disclosure Statement" , when used in a provision outside Chapter 7, has the same meaning it has in Chapter 7.
"reproduction" , in relation to a document, means a machine-copy of the document or a print made from a negative of the document.
"resolution" , when used in a provision outside Schedule 2 in relation to creditors or contributories, means a resolution passed at a meeting of the creditors or contributories.
"resolution for voluntary winding up" means the special resolution referred to in section 491.
"response period" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"responsible entity" of a registered scheme means the company named in ASIC's record of the scheme's registration as the responsible entity or temporary responsible entity of the scheme.
"responsible holding party" for an Australian passport fund or a notified foreign passport fund means the responsible holding party of the assets of the fund under the Passport Rules for this jurisdiction.
"responsible intermediary" , in relation to a CSF offer, has the meaning given by subsection 738L(5).
"restricted civil penalty provision" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"restructuring" , in relation to a company, has the meaning given by section 453A.
"restructuring plan" means a plan executed under Part 5.3B or such a plan as varied and in force from time to time.
"restructuring practitioner" :
(a) in relation to a company but not in relation to a restructuring plan:
(i) means a small business restructuring practitioner for the company appointed under Part 5.3B; and
(ii) if 2 or more persons are appointed under that Part as small business restructuring practitioners for the company--has a meaning affected by paragraph 456M(2)(b); or
(b) in relation to a restructuring plan:
(i) means a small business restructuring practitioner for the plan appointed under Part 5.3B; and
(ii) if 2 or more persons are appointed under that Part as small business restructuring practitioners for the plan--has a meaning affected by paragraph 456N(2)(b).
"restructuring relief period" has the meaning given by section 458D.
(a) when used as a verb--result indirectly; and
(b) when used as a noun--an indirect result.
"retail CCIV" has the meaning given by subsection 1222J(1).
"retail client" , when used in Part 6D.3A, has the meaning given by section 738D.
"retention of title clause" : property is subject to a retention of title clause under a contract for the sale of property:
(a) if the contract contains a provision the effect of which is that the seller retains title in the property until the purchase price, or another amount, has been paid in full; and
(b) if the purchase price, or the other amount, as the case may be, has not been paid in full; and
(c) to the extent that the contract does not give rise to a PPSA security interest in the property.
Note: See also the definitions of PPSA security interest in section 51 and PPSA retention of title property in section 51F.
"retirement village scheme means a scheme, undertaking or enterprise (in this definition called the relevant scheme" ), whether in Australia or elsewhere, that is being, or is proposed to be, carried out or undertaken with the intention that the participants, or a majority of the participants, in the relevant scheme be provided, in connection with the relevant scheme, with residential accommodation within a retirement community, whether or not the entitlement of a participant to be provided with such accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is provided, but does not include a time-sharing scheme.
"return of particulars" for a company, registered scheme or notified foreign passport fund means a statement given by ASIC that contains any or all of the following:
(a) some or all of the particulars in relation to the company, scheme or fund that are recorded in a register that ASIC maintains, or ensures is maintained, under subsection 1214(1) or 1274(1);
(b) a requirement to provide a particular under section 348B;
(c) a requirement to comply with a subsection of section 348C (and, if applicable, pass a resolution).
"review auditor" has the meaning given by section 324AF.
"review date" has the meaning given by section 345A.
"review fee" has the meaning given by section 5 of the Corporations (Review Fees) Act 2003 .
"revoke" , in relation to an accounting standard, means, in the case of a provision of an accounting standard, vary the last-mentioned accounting standard by omitting the provision.
"rights issue" has the meaning given by subsections 9A(1) and (2).
"RSE licensee" has the same meaning as in the Superannuation Industry (Supervision) Act 1993 .
(a) rules of the Federal Court; or
(b) rules of a State or Territory Supreme Court;
as the case requires.
"scheme property" of a registered scheme means:
(a) contributions of money or money's worth to the scheme; and
(b) money that forms part of the scheme property under provisions of this Act or the ASIC Act; and
(c) money borrowed or raised by the responsible entity for the purposes of the scheme; and
(d) property acquired, directly or indirectly, with, or with the proceeds of, contributions or money referred to in paragraph (a), (b) or (c); and
(e) income and property derived, directly or indirectly, from contributions, money or property referred to in paragraph (a), (b), (c) or (d).
Note 1: Paragraph (a)--if what a member contributes to a scheme is rights over property, the rights in the property that the member retains do not form part of the scheme property.
Note 2: For provisions that are relevant to paragraph (b), see subsections 177(4), 1317HA(1A), 1317HB(3) and 1317HD(3) of this Act and subsection 93A(5) of the ASIC Act.
"scrip" means documents that are, or are documents of title to, securities.
"secrecy provision" has the meaning given by subsection 1270M(2).
section 513C day , in relation to the administration of a company, has the meaning given by section 513C.
"secured creditor" has the meaning given by section 51E.
"secured party" has the meaning given by section 51B.
"securities" has the meaning given by section 92.
"security interest" has the meaning given by section 51A.
"selective buy-back" means a buy-back that is none of the following:
(a) a buy-back under an equal access scheme within the meaning of subsections 257B(2) and (3);
(b) a minimum holding buy-back;
(c) an on-market buy-back;
(d) an employee share buy-back.
(a) in relation to a corporation--means a person (other than a director or secretary of the corporation) who:
(i) makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
(ii) has the capacity to affect significantly the corporation's financial standing; and
(b) in relation to a partnership--means a person (other than a partner) who:
(i) makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the partnership; or
(ii) has the capacity to affect significantly the partnership's financial standing; and
(c) in relation to a trust--means a person (other than a trustee) who:
(i) makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or affairs of the trust; or
(ii) has the capacity to affect significantly the financial standing of the trust; and
(d) in relation to a joint venture--means a person (other than a director or secretary of a corporation participating in the joint venture) who:
(i) makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the joint venture; or
(ii) has the capacity to affect significantly the financial standing of the joint venture.
"sent" , in relation to an electronic communication, has a meaning affected by section 105A.
"serious fraud" means an offence involving fraud or dishonesty, being an offence:
(a) against an Australian law or any other law; and
(b) punishable by imprisonment for life or for a period, or maximum period, of at least 3 months.
"sheriff" includes a person charged with the execution of a writ or other process.
"significant financial benchmark" has the meaning given by section 908AC.
"simple corporate bonds" has the meaning given by section 713A.
"simple corporate bonds depository interest" means a beneficial interest in simple corporate bonds, where the interest is or was issued by a simple corporate bonds depository nominee (as a simple corporate bonds depository nominee).
"simple corporate bonds depository nominee" means a person who:
(a) issues to someone else one or more beneficial interests in simple corporate bonds that the person:
(i) owns legally; or
(ii) would own beneficially, apart from the issue of those interests; or
(iii) has a beneficial interest in; and
(b) does so with the agreement of the body that issued the bonds.
"simplified liquidation process" has the meaning given by section 500AE.
"small company limited by guarantee" has the meaning given by section 45B.
"small proprietary company" has the meaning given by subsection 45A(2).
"solvency resolution" means a resolution by the directors of a company as to whether or not, in their opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable.
(a) in relation to a person--has the meaning given by subsection 95A(1); and
(b) in relation to a sub-fund of a CCIV--has the meaning given by subsection 1231A(2).
"special resolution" , when used in a provision outside Schedule 2 means:
(a) in relation to a company, a resolution:
(i) of which notice as set out in paragraph 249L(1)(c) has been given; and
(ii) that has been passed by at least 75% of the votes cast by members entitled to vote on the resolution; or
(b) in relation to a registered scheme, a CCIV or a sub-fund of a CCIV, a resolution:
(i) of which notice as set out in paragraph 252J(c) has been given; and
(ii) that has been passed by at least 75% of the votes cast by members entitled to vote on the resolution.
"spouse" of a person includes a de facto partner of the person within the meaning of the Acts Interpretation Act 1901 .
"staff member" , in relation to ASIC, means a person who is a staff member for the purposes of the ASIC Act.
"standard opening hours" means 10 am to 12 noon and 2 pm to 4 pm each business day.
"State" , when used in a geographical sense, includes the coastal sea of the State.
"State Fair Trading Act" means the following Acts for each State and Territory:
|
State Fair Trading Acts | ||
|
|
State or Territory |
Act |
|
1 |
New South Wales | |
|
2 |
Victoria |
Fair Trading Act 1999 |
|
3 |
Queensland | |
|
4 |
South Australia | |
|
5 |
Western Australia | |
|
6 |
Tasmania |
Fair Trading Act 1990 |
|
7 |
Northern Territory | |
|
8 |
Australian Capital Territory |
Fair Trading Act 1992 |
"State Family Court" , in relation to a State, means a court of that State to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.
"statement" , in Chapter 7, includes matter that is not written but conveys a message.
"State or Territory authority" means an authority or other body (whether incorporated or not) that is established or continued in existence by or under a law of a State or Territory.
"State or Territory court" means:
(a) a court of a State, the Australian Capital Territory or the Northern Territory; or
(b) the Supreme Court of Norfolk Island.
State or Territory Supreme Court means any of the following:
(a) the Supreme Court of a State;
(b) the Supreme Court of the Australian Capital Territory;
(c) the Supreme Court of the Northern Territory;
(d) the Supreme Court of Norfolk Island.
(a) a document that is, or purports to be, a demand served under section 459E; or
(b) such a document as varied by an order under subsection 459H(4).
(a) if an amount greater than $2,000 is prescribed--the prescribed amount; or
(b) otherwise--$2,000.
(a) if a period longer than 21 days is prescribed--the prescribed period; or
(b) otherwise--21 days.
"sub-fund" , of a CCIV, has the meaning given by subsection 1222Q(1).
"subject to an infringement notice " under Part 9.4AB has a meaning given by section 1317DAN.
"subscriber" , in relation to an approved code of conduct:
(a) means a person or entity that agrees, in a way required by the applicant for the code's approval, to be bound by the code; and
(b) if a person or entity no longer agrees to be bound by the code--includes the person or entity during the period that the person or entity did agree to be so bound.
subsection 1337B(3) proceeding means a proceeding with respect to a matter referred to in subsection 1337B(3).
"subsidiary" , in relation to a body corporate, means a body corporate that is a subsidiary of the first-mentioned body by virtue of Division 6.
"substantial holding" : a person has a substantial holding in a body corporate, listed registered scheme or listed notified foreign passport fund, if:
(a) the total votes attached to voting shares in the body or voting interests in the scheme or fund, in which they or their associates:
(i) have relevant interests; and
(ii) would have a relevant interest but for subsection 609(6) (market traded options) or 609(7) (conditional agreements);
is 5% or more of the total number of votes attached to voting shares in the body or interests in the scheme or fund; or
(b) the person has made a takeover bid for voting shares in the body or voting interests in the scheme, and the bid period has started and not yet ended.
Note 1: For relevant interest , see section 608.
Note 2: Paragraph (b) does not apply in relation to a notified foreign passport fund.
"substantial interest" has a meaning affected by section 602A.
"substantial part" , in relation to activities, includes the whole of those activities.
"superannuation guarantee charge" has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 .
"superannuation guarantee shortfall" has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 .
"superior court" means the Federal Court of Australia, the Supreme Court of a State or Territory, the Federal Circuit and Family Court of Australia (Division 1) or a State Family Court.
"superior court matter means a civil matter that this Act clearly intends (for example, by use of the expression the Court" ) to be dealt with only by a superior court.
"Supplementary Product Disclosure Statement" , when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7.
"suspended" , in relation to a CSF offer, has the meaning given by subsection 738N(6).
"takeover bid" means an off-market bid or market bid made under Chapter 6.
"takeover contract" means a contract that results from the acceptance of an offer made under a takeover bid.
"target" for a takeover bid means the company, listed body or managed investment scheme whose securities are to be acquired under the bid.
"target's statement" means a target's statement under sections 638 to 640 as supplemented.
"taxation law" has the same meaning as in the Income Tax Assessment Act 1997 .
"territorial sea" has the same meaning as in the Seas and Submerged Lands Act 1973 .
(a) means the following:
(i) the Australian Capital Territory;
(ii) the Jervis Bay Territory;
(iii) the Northern Territory;
(iv) Norfolk Island;
(v) the Territory of Christmas Island;
(vi) the Territory of Cocos (Keeling) Islands; and
(b) when used in a geographical sense--includes the Territory's coastal sea (if any).
Note: The term external Territory is defined in this subsection to be any Territory, other than a Territory covered by this definition, that is referred to in section 122 of the Constitution, where an Act makes provision for the government of the Territory as a Territory.
"this Act" includes the regulations, the Insolvency Practice Rules and the Passport Rules for this jurisdiction.
"this jurisdiction" means the geographical area that consists of:
(a) each referring State (including its coastal sea); and
(b) each Territory (including its coastal sea, if any); and
(d) also, for the purposes of the application of a provision of Chapter 7 or an associated provision (as defined in section 5)--any external Territory in which the provision applies because of subsection 5(9) (but only to the extent provided for in that subsection).
"time-sharing scheme" means a scheme, undertaking or enterprise, whether in Australia or elsewhere:
(a) participants in which are, or may become, entitled to use, occupy or possess, for 2 or more periods during the period for which the scheme, undertaking or enterprise is to operate, property to which the scheme, undertaking or enterprise relates; and
(b) that is to operate for a period of not less than 3 years.
"trade" , in relation to financial products, in relation to a financial market, includes:
(a) make or accept on that financial market an offer to dispose of, acquire or exchange the financial products; and
(b) make on that financial market an offer or invitation that is intended, or may reasonably be expected, to result in the making or acceptance of an offer to dispose of, acquire or exchange the financial products.
"trading day" of a financial market means a day on which the market is open for trading in financial products.
"transaction" , in Part 5.7B, in relation to a body corporate or Part 5.7 body, means a transaction to which the body is a party, for example (but without limitation):
(a) a conveyance, transfer or other disposition by the body of property of the body; and
(b) a security interest granted by the body in its property (including a security interest in the body's PPSA retention of title property); and
(c) a guarantee given by the body; and
(d) a payment made by the body; and
(e) an obligation incurred by the body; and
(f) a release or waiver by the body; and
(g) a loan to the body;
and includes such a transaction that has been completed or given effect to, or that has terminated.
"transmission" means a transmission, by means of electric or electromagnetic energy, of:
(a) sounds, including speech and music; or
(b) visual images; or
(c) signals for the communication, whether as between persons and persons, persons and things or things and things, of any matter otherwise than in the form of sounds or visual images; or
(d) signals for the actuation or control of machinery or apparatus.
"transparency" , in relation to a document, means:
(a) a developed negative or positive photograph of that document (in this definition called an original photograph ) made, on a transparent base, by means of light reflected from, or transmitted through, the document; or
(b) a copy of an original photograph made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with the original photograph; or
(c) any one of a series of copies of an original photograph, the first of the series being made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b), and each succeeding copy in the series being made, in the same manner, from any preceding copy in the series.
"transparency reporting auditor" has the meaning given by subsection 332(1).
"transparency reporting year" has the meaning given by subsection 332(2).
"Tribunal" means the Administrative Appeals Tribunal.
"ultimate holding company" , in relation to a body corporate, means a body corporate that:
(a) is a holding company of the first-mentioned body; and
(b) is itself a subsidiary of no body corporate.
(a) property paid or transferred to ASIC under a provision of this Act that provides for property to be transferred, or for the Court to direct that property be transferred, to ASIC to be dealt with under Part 9.7; or
(b) any other property that a provision of this Act provides for ASIC to deal with under Part 9.7; or
(c) property that vests in ASIC under section 1404; or
(d) an accretion to, or substitution for, property that is unclaimed property because of any other application or applications of this definition.
"uncommercial transaction" has the meaning given by section 588FB.
"underlying securities" means:
(a) in relation to an option over securities--those securities; and
(b) in relation to scrip that is constituted by documents that are, or are documents of title to, securities--those securities.
"undertaking" , in relation to a managed investment scheme, means the undertaking, scheme, enterprise, contract or arrangement to which the scheme relates.
"underwrite" includes sub-underwrite.
"unfair loan" has the meaning given by section 588FD.
"unfair preference" has the meaning given by section 588FA.
"unit" , in relation to a share, debenture or other interest, means a right or interest, whether legal or equitable, in the share, debenture or other interest, by whatever term called, and includes an option to acquire such a right or interest in the share, debenture or other interest.
"unlimited company" means a company whose members have no limit placed on their liability.
"unlisted disclosing entity" has the meaning given by subsection 111AL(2).
"unreasonable director-related transaction" has the meaning given by section 588FDA.
"unsecured" , in relation to a debt, has in Part 5.7B a meaning affected by section 588D.
"value" , in relation to an asset, includes amount.
"virtual meeting technology" means any technology that allows a person to participate in a meeting without being physically present at the meeting.
"voting interest" , in relation to a managed investment scheme (including a notified foreign passport fund), means an issued interest in the scheme that confers a right to vote, not being a right to vote that is exercisable only in one or more of the following circumstances:
(a) on a proposal that affects rights attached to the interests;
(b) on a proposal to wind up the scheme;
(c) on a proposal for the disposal of the whole of the scheme or fund property, business and undertaking;
(d) during the winding up of the scheme.
"voting power" in a body or managed investment scheme has the meaning given by section 610.
"voting share" in a body corporate means an issued share in the body that carries any voting rights beyond the following:
(a) a right to vote while a dividend (or part of a dividend) in respect of the share is unpaid;
(b) a right to vote on a proposal to reduce the body's share capital;
(c) a right to vote on a resolution to approve the terms of a buy-back agreement;
(d) a right to vote on a proposal that affects the rights attached to the share;
(e) a right to vote on a proposal to wind the body up;
(f) a right to vote on a proposal for the disposal of the whole of the body's property, business and undertaking;
(g) a right to vote during the body's winding up.
"wages" , in relation to a company, means amounts payable to or in respect of an employee of the company (whether the employee is remunerated by salary, wages, commission or otherwise) under an industrial instrument, including amounts payable by way of allowance or reimbursement but excluding amounts payable in respect of leave of absence.
"wholesale CCIV" has the meaning given by subsection 1222J(2).
"wholly-owned subsidiary" , in relation to a body corporate, means a body corporate none of whose members is a person other than:
(a) the first-mentioned body; or
(b) a nominee of the first-mentioned body; or
(c) a subsidiary of the first-mentioned body, being a subsidiary none of whose members is a person other than:
(i) the first-mentioned body; or
(ii) a nominee of the first-mentioned body; or
(d) a nominee of such a subsidiary.
"winding up by the Court" includes winding up in insolvency.
"wound up by the Court" includes wound up in insolvency.