"ASX" means Australian Stock Exchange Limited.
"Australia", when used in a geographical sense, does not include an external
Territory.
- Note: Paragraph 17(a) of the Acts Interpretation Act 1901 would otherwise
provide that Australia included the Territory of Christmas Island and the
Territory of Cocos (Keeling) Islands.
"Australian ADI" means:
- (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 court" means a federal court or a court of a State or Territory.
"Australian law" means a law of the Commonwealth or of a State or Territory.
"Australian register" of a foreign company means a branch register of members
kept under section 601CM.
"authorised trustee corporation" means a body corporate that is declared by
the regulations to be an authorised trustee corporation for the purposes of
the provision in which the expression appears.
"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 .
"banker's books" means:
- (a)
- books of an Australian ADI, including documents used in the ordinary
business of an Australian bank; or
- (b)
- cheques, orders for the payment of money, bills of exchange and promissory
notes in an Australian ADI's possession; or
- (c)
- scrip in an Australian ADI's possession, whether by way of pledge or
otherwise; or
- (d)
- documents that create or evidence futures contracts and are in an
Australian ADI's possession.
"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:
- (a)
- in Chapter 7an order by ASIC in force under Division 5 of
Part 7.3; and
- (b)
- in Chapter 8an order by ASIC in force under Division 5 of
Part 8.3.
"begin", in relation to a winding up, has the meaning given by
Division 1A of Part 5.6.
"benefit":
- (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 200A to
200J)means:
- (i)
- a payment or other valuable consideration; or
- (ii)
- an interest in property of any kind; or
- (iii)
- any other benefit.
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: The dealer who announces a market bid is not the bidder; the bidder is
the person or people on whose behalf the announcement is made.
"bidder's statement" means a bidder's statement under sections 636 and
637 as supplemented.
"bid period":
- (a)
- for an off-market bidstarts 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 bidstarts when the bid is announced to the relevant
securities exchange and ends at the end of the offer period.
"Board" means:
- (a)
- in Part 7.10the board of SEGC; or
- (b)
- in Part 9.2the Companies Auditors and Liquidators Disciplinary
Board.
"board or managerial office" (when used in Division 2 of Part 2D.2
(sections 200A to 200J) in relation to a body corporate) means:
- (a)
- an office of director of the body corporate; and
- (b)
- any other office in connection with the management of the body corporate's
affairs that is held by:
- (i)
- a person who also holds an office of director of the body corporate or a
related body corporate; or
- (ii)
- a person who has held an office of director of the body corporate or a
related body corporate at any time within the 12 months immediately before the
loss of, or retirement from, that office.
"body" means a body corporate or an unincorporated body and includes, for
example, a society or association.
"body corporate":
- (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.
"books" includes:
- (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.
"borrower", in relation to a debenture, means the body that is or will be
liable to repay money under the debenture.
"bought position" means:
- (a)
- in relation to a commodity agreement, or in relation to a futures
contract, being a commodity agreementthe position of a person who, by
virtue of the agreement, is under a Chapter 8 obligation to accept
delivery in accordance with the agreement; or
- (b)
- in relation to a futures contract, being an adjustment agreementthe
position of a person who, by virtue of the agreement:
- (i)
- will, if the value or worth of the agreement (as determined in accordance
with the agreement) as at a particular future time is less by a particular
amount than the value or worth of the agreement (as so determined) as at a
particular earlier time, be under a Chapter 8 obligation to pay that
amount; and
- (ii)
- will, if the value or worth of the agreement (as so determined) as at a
particular future time exceeds by a particular amount the value or worth of
the agreement (as so determined) as at a particular earlier time, have a
Chapter 8 right to receive that amount.
"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.
"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).
"Capital Territory" means the Australian Capital Territory and the Jervis Bay
Territory.
"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; and
- (b)
- relates to an undertaking of the kind commonly known as a cash management
trust.
"cause" includes procure.
"certified" means:
- (a)
- in relation to a copy of, or extract from, a documentcertified 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 documentcertified by a statement
in writing to be a correct translation of the document into English.
Chapter 8 agreement means:
- (a)
- a relevant agreement; or
- (b)
- a proposed relevant agreement; or
- (c)
- a relevant agreement as varied, or as proposed to be varied; or
- (d)
- where a relevant agreement has been variedthe relevant agreement as
in force at any time before the variation; or
- (e)
- where a relevant agreement has been dischargedthe relevant agreement
as in force at any time before its discharge.
Chapter 8 obligation has the meaning given by section 55.
Chapter 8 right has the meaning given by section 55.
"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.
"civil matter" means a matter other than a criminal matter.
"civil penalty disqualification" has the meaning given by subsection 91(4A).
"civil penalty order" means any of the following:
- (a)
- a declaration of contravention under section 1317F;
- (b)
- a pecuniary penalty order under section 1317G;
- (c)
- a compensation order under section 1317H;
- (d)
- an order under section 206C disqualifying a person from managing
corporations.
"civil penalty provision" has the meaning given in subsection 1317E(1).
class has:
- (a)
- in relation to futures contractsa meaning affected by subsection
72(3); and
- (b)
- in relation to shares or interests in a managed investment schemea
meaning affected by section 57; and
- (c)
- when used in relation to securities for the purposes of Chapter 6, 6A
or 6Ca meaning affected by subsection 605(2).
"clearing house" means:
- (a)
- in relation to a body corporate:
- (i)
- in any casea person who provides, or proposes to provide,
clearing house facilities for a futures market conducted by that body; or
- (ii)
- in the case of a futures exchangea body corporate in relation to
which an approval as a clearing house for that futures exchange is in force
under subsection 1131(2); and
- (b)
- in relation to a futures market:
- (i)
- in any casea person who provides, or proposes to provide,
clearing house facilities for that futures market; or
- (ii)
- in the case of a futures market of a futures exchangea
body corporate in relation to which an approval as a clearing house for that
futures exchange is in force under subsection 1131(2).
"clearing house facilities", in relation to a futures market, means facilities
for the registration of futures contracts acquired or disposed of on that
futures market.
"client", in relation to a futures broker, means, except in Division 2 of
Part 8.3, a person on whose behalf the broker deals, or from whom the
broker accepts instructions to deal, in futures contracts.
"clients' segregated account", in relation to a person who is a member of a
futures organisation, means an account that:
- (a)
- the person maintains, whether in Australia or elsewhere, with:
- (i)
- an Australian ADI; or
- (ii)
- an approved foreign bank in relation to the person; and
- (b)
- is maintained for the sole purpose of containing money deposited by the
person into the account under section 1209.
"close out", in relation to a futures contract, means:
- (a)
- discharge the Chapter 8 obligations of the person in the bought
position, or sold position, under the futures contract as a result of the
matching up of the futures contract with a futures contract of the same kind
under which the person has assumed an offsetting sold position, or offsetting
bought position, as the case may be; or
- (b)
- otherwise discharge the Chapter 8 obligations of a party to the
futures contract.
"coastal sea":
- (a)
- in relation to Australiameans:
- (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 Territorymeans so much of the coastal sea
of Australia as is within the area described in Schedule 2 to the
Petroleum (Submerged Lands) Act 1967 under the heading that refers to that
State or Territory.
"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 effectthe
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 334the time when that provision
took effect.
"Commission delegate" has the same meaning as in the ASIC Act.
"committee of creditors", in relation to a company under administration, means
a committee of creditors of the company appointed at a meeting convened under
section 436E.
"commodity" means:
- (a)
- any thing that is capable of delivery pursuant to an agreement for its
delivery; or
- (b)
- without limiting the generality of paragraph (a), an instrument
creating or evidencing a thing in action.
"commodity agreement" means a standardised agreement the effect of which is
that:
- (a)
- a person is under a Chapter 8 obligation to make delivery; or
- (b)
- a person is under a Chapter 8 obligation to accept delivery;
at a particular future time of a particular quantity of a particular commodity
for a particular price or for a price to be calculated in a particular manner,
whether or not:
- (c)
- the subject matter of the agreement is in existence; or
- (d)
- the agreement has any other effect; or
- (e)
- the agreement is capable of being varied or discharged before that future
time.
"Commonwealth authority" means an authority or other body (whether
incorporated or not) that is established or continued in existence by or under
an Act.
"company" means a company registered under this Act and:
- (a)
- in Chapter 2K (other than sections 273A to 273E), includes a
registrable body that is registered under Division 1 or 2 of
Part 5B.2 of this Act; and
- (b)
- in sections 273A to 273E, includes a registered body that carries on
business outside its place of origin; 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.
"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.
"conduct":
- (a)
- in relation to a futures market, a stock market, or any other market,
exchange, place or facilityincludes maintain or provide; and
- (b)
- in Chapter 7has a meaning affected by section 762.
"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 managed investment 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: 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.
"continuous disclosure notice" means:
- (a)
- a document used to notify a securities exchange of information relating to
a body under provisions of the securities exchange's listing rules referred to
in subsection 1001A(1); or
- (b)
- a document under section 1001B 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 12 months before the date of the prospectus; and
- (b)
- are securities of an entity that was not covered by any of the following
at any time in that 12 months:
- (i)
- an exemption under section 111AS or 111AT, or a modification under
section 111AV;
- (ii)
- an exemption under paragraph 741(1)(a), or a 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;
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.
"contributing member", in relation to a futures organisation, means:
- (a)
- in the case of a futures exchangea member or member organisation of
the futures exchange; or
- (b)
- in the case of a futures association:
- (i)
- a member of that futures association that is a member of no futures
exchange; or
- (ii)
- a member organisation of that futures association that is a member
organisation of no futures exchange.
"contributory" means:
- (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 capitala 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 sectiona person alleged to be such a contributory; and
- (c)
- in relation to a no liability companysubject to section 385, a
member of the company.
"control" has the meaning given by section 50AA.
"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
propertythe 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 chargethe day when the
person entered into possession, or took control, of property of the
corporation for the purpose of enforcing that charge; 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
charge.
"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.
"corporation" has the meaning given by section 57A.
"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 Capital
Territory, or the Family Court, 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 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.
"creditors' voluntary winding up" means a winding up under Part 5.5,
other than a members' voluntary winding up.
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.
"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.
date of a takeover bid is:
- (a)
- for an off-market bidthe date on which offers are first made under
the bid; or
- (b)
- for a market bidthe date on which the bid is announced to the
relevant securities exchange.
"deal":
- (a)
- in relation to a futures contracthas the meaning given by
Division 4; and
- (b)
- in relation to securitiessubject 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.
"dealer" means:
- (a)
- a person who carries on a securities business; or
- (b)
- 2 or more persons who together carry on a securities business.
"dealers licence" means a dealers licence granted under Part 7.3.
"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 charge 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
- (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
- (d)
- an undertaking to pay money under a promissory note that has a face value
of at least $50,000; 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", in relation to a chargee in relation to a charge on
property of a company under administration, means the period beginning on the
day when:
- (a)
- if notice of the appointment of the administrator must be given to the
chargee under subsection 450A(3)such notice is so given; or
- (b)
- otherwisethe administration begins;
and ending at the end of the tenth business day after that day.
"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.
"de facto spouse", in relation to a person, means an individual of the
opposite sex to that person who is living with that person as his or her
spouse on a genuine domestic basis although not legally married to that
person.
"defalcation", in Part 7.9, includes a contravention of subsection
870(3).
"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.
"deregistered" means:
- (a)
- in relation to a companyderegistered under Chapter 5A; and
- (b)
- in relation to any other body corporatederegistered in a way that
results in the body corporate ceasing to exist.
"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 intentionExamples 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).
"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.
"discretionary account" has the meaning given by section 61.
"dispose" of a futures contract has the meaning given by sections 24, 26,
27 and 28. 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 of title", in relation to securities, includes an instrument of
transfer relating to the securities.
"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.
"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
- (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 commodity agreement" means a commodity agreement (in this definition
called the relevant agreement ), where, at the time when the
relevant agreement:
- (a)
- unless paragraph (b) appliesis entered into; or
- (b)
- if the relevant agreement is not a commodity agreement at the time when it
is entered intobecomes a commodity agreement;
it appears likely, having regard to all relevant circumstances (other than the
respective intentions of the person in the sold position, and the person in
the bought position, under the relevant agreement), including, without
limiting the generality of the foregoing:
- (c)
- the provisions of any agreement; and
- (d)
- the rules and practices of any market; and
- (e)
- the manner in which the respective Chapter 8 obligations of persons
in sold positions, and persons in bought positions, under agreements of the
same kind as the first-mentioned agreement are generally discharged;
that:
- (f)
- the Chapter 8 obligation of the person in the sold position under the
relevant agreement to make delivery in accordance with the relevant agreement
will be discharged otherwise than by the person so making delivery; or
- (g)
- the Chapter 8 obligation of the person in the bought position under
the relevant agreement to accept delivery in accordance with the relevant
agreement will be discharged otherwise than by the person so accepting
delivery; or
- (h)
- the person in the sold position, or bought position, under the relevant
agreement will assume an offsetting bought position, or offsetting sold
position, as the case may be, under an agreement of the same kind as the
relevant agreement.
"eligible exchange-traded option" means a contract that is entered into on a
futures market of a futures exchange and under which a party acquires from
another party an option or right, exercisable at or before a specified time:
- (a)
- to purchase from, or to sell to, that other party a specified quantity of
a specified commodity at a price specified in, or to be determined in
accordance with, the contract; or
- (b)
- to be paid by that other party an amount of money to be determined by
reference to the amount by which a specified number is greater or less than
the number of a specified index, being the Australian Stock Exchanges All
Ordinaries Price Index or a prescribed index, as at the time when the option
or right is exercised.
"eligible money market dealer" means a body corporate in respect of which a
declaration is in force under section 65.
"eligible securities conduct" means conduct in the course of, for the purposes
of, or otherwise in connection with:
- (a)
- dealing in securities; or
- (b)
- advising a person about securities; or
- (c)
- giving to a person a securities report.
"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 share scheme "for a company means a scheme under which shares (or
units in shares) in the company or a holding company may be acquired:
- (a)
- by, or for the benefit of:
- (i)
- employees of the company, or of a related body corporate; or
- (ii)
- directors of the company, or of a related body corporate, who hold a
salaried employment or office in the company or in a related body corporate;
or
- (b)
- by a corporation all of whose members are:
- (i)
- employees of the company, or of a related body corporate; or
- (ii)
- directors of the company, or of a related body corporate, who hold a
salaried employment or office in the company or in a related body corporate.
"employee share scheme 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.
"enforce", in relation to a charge on 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 charge; or
- (b)
- obtain an order for the appointment of a receiver of such property for the
purpose of enforcing the charge; 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 chargee or for the company); or
- (e)
- exercise, as chargee or as a receiver or person so appointed, a right,
power or remedy existing because of the charge, whether arising under an
instrument relating to the charge, under a written or unwritten law, or
otherwise.
"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.
"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.
"Enter into", in relation to a futures contract, has a meaning affected by
subsection 72(2).
"entitlements" of an employee of a company has the meaning given by
subsections 596AA(2) and (3).
"entity": for the purposes of Chapter 2E 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 trusteethe trustee;
- (f)
- for a trust that has more than 1 trusteethe trustees together.
Otherwise, entity has the meaning given by section 64A.
"equal access scheme" has the meaning given by subsections 257B(2) and (3).
"event" includes any happening, circumstance or state of affairs.
"examinable affairs", in relation to a corporation means:
- (a)
- the promotion, formation, management, administration 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 officer", in relation to a corporation, means:
- (a)
- a director, secretary or executive officer of the corporation; or
- (b)
- a receiver, or receiver and manager, of property of the corporation
(whether appointed under a provision contained in an instrument, or by a
court); or
- (c)
- an administrator of the corporation; or
- (d)
- an administrator of a deed of company arrangement executed by the
corporation; or
- (e)
- a liquidator or provisional liquidator of the corporation (whether or not
appointed by a court); or
- (f)
- a trustee or other person administering a compromise or arrangement made
between the corporation and any other person or persons.
"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.
"Exchange" means Australian Stock Exchange Limited.
"exchange member", in relation to a futures exchange, means:
- (a)
- a corporation that is a member of the futures exchange; or
- (b)
- a partnership that is a member of the futures exchange; or
- (c)
- a member of such a partnership.
"Exchange subsidiary", in Chapter 7, means a securities exchange that is
a subsidiary of the Exchange.
"exchange traded option" means an option declared by a securities exchange to
be an exchange traded option.
"excluded security" means:
- (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.
"executive officer" of a body corporate means a person who is concerned in, or
takes part in, the management of the body (regardless of the person's
designation and whether or not the person is a director of the body).
"exempt body" has the meaning given by section 66A.
"exempt broker" means a person who is an exempt broker by virtue of
section 67.
"exempt dealer" has the meaning given by section 68.
"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 futures market" means a futures market in relation to which a
declaration under section 1127 is in force.
"exempt investment adviser" has the meaning given by section 68.
"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.
"exempt stock market" means a stock market in relation to which, or a
stock market in a class of stock markets in relation to which, a declaration
is in force under section 771.
"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.
"externally-administered body corporate" means a body corporate:
- (a)
- that 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
- (ca)
- that has executed a deed of company arrangement that has not yet
terminated; or
- (d)
- that has entered into a compromise or arrangement with another person the
administration of which has not been concluded.
"extraordinary resolution", in relation to a registered scheme, 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).
"Family Court" means the Family Court of Australia.
"Federal Court "means the Federal Court of Australia.
"fidelity fund" means:
- (a)
- in relation to a futures organisationthe fidelity fund (if any) that
section 1228 requires the futures organisation to keep; or
- (b)
- in relation to a securities exchange within the meaning of
Chapter 7the fidelity fund (if any) that section 895 requires
or required the securities exchange to keep.
"financial benefit" (when used in Chapter 2E) 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 records" includes:
- (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 statements" means annual financial statements under
section 295 or half-year financial statements under section 303.
"financial year" has the meaning given by section 323D.
"find", in the case of a reference to a court finding a person guilty of an
offence, has a meaning affected by section 73A.
"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.
"foreign company" means:
- (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.
"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.
"function" includes a duty.
"Fund" means the National Guarantee Fund continued in existence by
section 928B.
"futures advice business" has the meaning given by section 71.
"futures adviser" means a person who carries on, or 2 or more persons who
together carry on, a futures advice business.
"futures advisers licence" means a futures advisers licence granted under
Part 8.3.
"futures association", in this Chapter and Chapter 8, means a
body corporate in relation to which an approval under section 1132 is in
force.
"futures broker "means:
- (a)
- except in section 1209 and Part 8.5:
- (i)
- a person who carries on, or 2 or more persons who together carry on, a
futures broking business, whether or not the person, or any of the persons,
also deals in futures contracts on the person's own account; or
- (ii)
- the holder of a futures brokers licence; and
- (b)
- in section 1209 or Part 8.5the holder of a futures brokers
licence.
"futures brokers licence", in this Chapter or Chapter 8, means a
futures brokers licence granted under Part 8.3.
"futures broking business", in relation to a person, means, subject to
subsection 25(4), a business of dealing in futures contracts on behalf of
other persons.
"futures contract" has the meaning given by section 72.
"futures exchange", in this Chapter and Chapter 8, means a body corporate
in relation to which an approval under section 1126 is in force.
"futures law" means a provision of Chapter 8.
"futures licence" means a futures brokers licence or a futures
advisers licence.
"futures licensee" means a person who holds a futures licence.
"futures market" means a market, exchange or other place at which, or a
facility by means of which, futures contracts are regularly acquired or
disposed of.
"futures option" means an option or Chapter 8 right to assume, at a
specified price or value and within a specified period, a bought position, or
a sold position, in relation to an eligible commodity agreement or in relation
to an adjustment agreement.
"futures organisation" means:
- (a)
- in this Chapter and Chapter 8 (other than Part 8.6)a
futures exchange or a futures association; and
- (b)
- in Part 8.6a futures exchange or a futures association (other
than a futures association each of whose members is also a member of a futures
exchange).
"futures report" means an analysis or report about futures contracts.
"futures representative" has the meaning given by section 73.
"Gazette notice" means a notice published in the Gazette .
"general law" means the principles and rules of the common law and equity.
"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.
"in Australia" has the meaning given by section 102C.
"included", in relation to an official list, has the meaning given by
section 75.
"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.
"incorporation":
- (a)
- of a companymeans the company's first registration under this Act;
and
- (b)
- of any other incorporated bodymeans the body's incorporation by or
under a law (other than this Act).
"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.
"information service" means:
- (a)
- a broadcasting service; or
- (b)
- an interactive or broadcast videotext or teletext service or a similar
service; or
- (c)
- an online database service or a similar service; or
- (d)
- any other prescribed service.
"injury compensation" means compensation payable under any law relating to
workers compensation.
"inside information", in relation to a futures contract, means information
that is not generally available but, if it were generally available, would be
likely to affect materially the price for dealing in:
- (a)
- that futures contract; or
- (b)
- a futures contract of the same kind as that futures contract.
"insolvent" has the meaning given by subsection 95A(2) and, in Part 7.10,
has a meaning affected by section 922.
"insolvent transaction" has the meaning given by section 588FC.
"insolvent under administration" means a person who:
- (a)
- under the Bankruptcy Act 1966 or the law of an external Territory, is a
bankrupt in respect of a bankruptcy from which the person has not been
discharged; or
- (b)
- under the law of an external Territory or the law of a foreign country,
has the status of an undischarged bankrupt;
and includes:
- (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 an external Territory or the law
of a foreign country; or
- (d)
- a person who has executed a deed of assignment or a deed of arrangement
under:
- (i)
- Part X of the Bankruptcy Act 1966 ; or
- (ii)
- the corresponding provisions of the law of an external Territory or the
law of a foreign country;
where the terms of the deed have not been fully complied with; or
- (e)
- a person whose creditors have accepted a composition under:
- (i)
- Part X of the Bankruptcy Act 1966 ; or
- (ii)
- the corresponding provisions of the law of an external Territory or the
law of a foreign country;
where a final payment has not been made under that composition.
"interest" in a managed investment scheme means a right to benefits produced
by the scheme (whether the right is actual, prospective or contingent and
whether it is enforceable or not).
"invalid futures authority" has the meaning given by subsection 87(2).
"invalid securities authority" has the meaning given by subsection 88(2).
"investment advice business" has the meaning given by section 77.
"investment adviser" means a person who carries on, or 2 or more persons who
together carry on, an investment advice business.
"investment advisers licence", in this Chapter or Chapter 7, means an
investment advisers licence granted under Part 7.3.
"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.
"issue" includes:
- (a)
- in relation to interests in a managed investment schememake
available; and
- (b)
- otherwisecirculate, distribute and disseminate.
"Judge" means a judge of the Court.
"judgment" means a judgment, decree or order, whether final or interlocutory.
"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.
"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.
"licence" means:
- (a)
- in Chapter 7a securities licence; and
- (b)
- in Chapter 8a futures licence.
"licensee" means:
- (a)
- in Chapter 7a securities licensee; and
- (b)
- in Chapter 8a futures licensee; and
- (c)
- in relation to a licencethe person who holds the licence.
"limited company" means:
- (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.
"linked": the incurring of a debt and a contravention of section 596AB
are linked if they are linked under subsection 596AB(4).
"liquidating trade" means a transaction whereby, for the purpose of closing
out a futures contract, the person in the bought position, or sold position,
under the futures contract assumes an offsetting sold position, or offsetting
bought position, as the case may be, under another futures contract.
"liquidator", in Chapters 7 and 8, includes a provisional liquidator.
"listed": a company, managed investment scheme or other body is listed if it
is included in the official list of a securities exchange.
"listed corporation" means a body corporate that is included in an official
list of a securities exchange (as defined, for the purposes of this
definition, by the regulations) in Australia or an external Territory.
"listed disclosing entity" has the meaning given by subsection 111AL(1).
"listing rules", when used in Chapter 7, has the meaning given by
section 761.
"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.
"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;
- (n)
- a scheme of a kind declared by the regulations not to be a managed
investment scheme.
- Note: 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).
"manager" has a meaning affected by section 90.
"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.
"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 prescribed interest.
"market bid" means a takeover bid made under Chapter 6 as a market bid
(see section 616).
"member":
- (a)
- in relation to a managed investment scheme-means a person who holds an
interest in the scheme; or
- (b)
- when used in Chapter 6 or Chapter 7 (except Part 7.1A and
the provisions mentioned in paragraph (aa) of this definition) in
relation to a securities exchange or stock exchange, means:
- (i)
- a person who is a member organisation of that exchange; or
- (ii)
- a person who is a partner in a partnership that is a member organisation
of that exchange; or
- (c)
- when used in section 769, 769A or 772A, subsection 776(2),
section 779, subsection 786(8) or 910(3) or section 913 or 1115, in
relation to a securities exchange or stock exchange, means:
- (i)
- a person who is a member organisation of that exchange; or
- (ii)
- a person who is a partner in a partnership that is a member organisation
of that exchange; or
- (iii)
- a person who is recognised under the business rules of the exchange as a
suitably qualified affiliate of the exchange and who is involved in the
carrying on of a business of dealing in securities (whether as an employee,
director or in any other capacity); or
- (d)
- in relation to a body corporate that is, or proposes to become, a futures
organisationhas a meaning affected by section 56; or
- (e)
- in relation to a companya person who is a member under
section 231.
"member firm", in relation to a securities exchange, means a partnership that
is a member organisation of the securities exchange.
"member organisation" means:
- (a)
- in relation to a securities exchange or stock exchange:
- (i)
- a person who is recognised under the business rules of the exchange as a
suitably qualified participant of the exchange and who carries on a business
of dealing in securities otherwise than in partnership; or
- (ii)
- a partnership that is recognised under the business rules of the exchange
as a suitably qualified participant of the exchange and that carries on a
business of dealing in securities; and
- (b)
- in relation to a futures organisation:
- (i)
- a member of the futures organisation that carries on a business of dealing
in futures contracts otherwise than in partnership; or
- (ii)
- a partnership that the futures organisation recognises as a member
organisation, that carries on a business of dealing in futures contracts and
each partner in which is a member of some futures organisation.
"members' voluntary winding up" means a winding up under Part 5.5 where a
declaration has been made and lodged pursuant to section 494.
"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 securities exchange.
"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.
"national business names register" means the record or records of information
identified by the Minister in a notice under subsection 147(5).
"national newspaper" means a daily newspaper that circulates generally in each
State and each internal Territory.
"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.
"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)).
"nominee corporation" means a body corporate whose principal business is the
business of holding marketable securities as a trustee or nominee.
"non-broker" means a person who is neither a futures broker nor one of 2 or
more persons who together constitute a futures broker.
"non-dealer" means a person who is neither a dealer nor one of 2 or more
persons who together constitute a dealer.
"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.
"of", in relation to securities, 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.
"offer information statement" means an offer information statement that is
lodged with ASIC.
offer period for a takeover bid is the period for which offers under the bid
remain open.
"officer" of a corporation 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
- (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 the Commonwealth" has the same meaning as in paragraph 75(v) of
the Constitution.
"official liquidator" means a person registered as an official liquidator
under section 1283.
"official manager" means a person appointed as an official manager under
Part 5.3.
"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 11.1.
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 provisionsthe 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 provisionsthe regulations that so deal
with the matter or matters.
"on", in relation to a stock market or futures 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 stock market of a securities exchange and is:
- (a)
- an on-market transaction as defined in the rules governing the operation
of the exchange; or
- (b)
- if those rules do not define on-market transactionseffected in the
ordinary course of trading on the stock market.
"on-market buy-back" means a buy-back by a listed corporation at an official
meeting of a securities exchange in the ordinary course of trading on a
stock market of the exchange.
"option contract", in Chapter 7, means:
- (a)
- a contract under which a party acquires from another party an option or
right, exercisable at or before a specified time, to buy from, or to sell to,
that other party a number of specified securities, or of a specified class of
securities, being securities of a kind referred to in paragraph 92(1)(a), (b),
- (c)
- or (d), at a price specified in, or to be determined in accordance with,
the contract; or
- (b)
- a contract entered into on a stock market of a securities exchange or on
an exempt stock market, being a contract under which a party to the contract
acquires from another party to the contract an option or right, exercisable at
or before a specified time:
- (i)
- to buy from, or to sell to, that other party an amount of a specified
foreign currency, or a quantity of a specified commodity, at a price specified
in, or to be determined in accordance with, the contract; or
- (ii)
- to be paid by that other party an amount of money to be determined by
reference to the amount by which a specified number is greater or less than
the number of a specified index, being the Australian Stock Exchanges All
Ordinaries Price Index or a prescribed index, as at the time when the option
or right is exercised.
"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.
own account has:
- (a)
- in relation to a person dealing in a futures contracta meaning
affected by section 29; or
- (b)
- in relation to a person dealing in, or entering into a transaction in
relation to, securitiesa meaning affected by section 84.
"Panel "means the Corporations and Securities Panel.
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.
Part 10.1 transitionals means the provisions of Part 10.1 and of
regulations for the purposes of those provisions.
"party":
- (a)
- in relation to a transactionincludes, if the transaction has been
completed or given effect to, or has been terminated, a person who was a party
to the transaction; and
- (b)
- in relation to a Chapter 8 agreementmeans, in the case of a
proposed or discharged relevant agreement, a person who would be a party to
the relevant agreement if it were in effect.
"payment" (when used in Division 2 of Part 2D.2 (sections 200A
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.
"person":
- (a)
- has a meaning affected by section 85A; and
- (b)
- when used in Division 2 of Part 2D.2 (sections 200A to
200J)includes a superannuation fund.
"place of origin":
- (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
Territorythat State or Territory; or
- (ii)
- otherwisethe place of the body's incorporation at that time; or
- (b)
- in relation to an unincorporated bodythe State or Territory, or
other place, in which the body is formed.
"possession" has a meaning affected by section 86.
"power" includes an authority.
"premises" includes:
- (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.
"price", in relation to a commodity agreement or a futures contract, or in
Chapter 8, includes any amount payable for the delivery of a commodity
under an agreement.
"printed" includes type-written, lithographed or reproduced by any mechanical
means.
"procure" includes cause.
"profile statement" means a profile statement that is lodged with ASIC.
proper authority has:
- (a)
- in relation to a futures licenseethe meaning given by subsection
87(1); and
- (b)
- in relation to a securities licenseethe meaning given by subsection
88(1).
"proper SCH transfer" means:
- (a)
- an SCH-regulated transfer of a quoted security or quoted right effected in
accordance with the SCH business rules; or
- (b)
- a transfer that is taken by section 1097D to be a proper SCH
transfer.
"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.
"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)).
"proprietary company" has the meaning given by subsection 45A(1).
"prospectus" means a prospectus that is lodged with ASIC.
"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).
"providing finance" means:
- (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.
"public company" means a company other than a proprietary company 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 securities exchange; and
- (b)
- in Chapter 2E does not include a company that does not 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.
"publish":
- (a)
- in relation to a noticemeans, in Chapter 7, publish by any
means, including in a newspaper or periodical, by broadcasting or televising
or in a cinematograph film; and
- (b)
- in any caseincludes issue.
"qualified accountant "means a member of a professional body that is approved
by ASIC in writing for the purposes of this definition.
"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 securities, in relation to a stock market of a
securities exchange, or of a stock exchange, within the meaning of the
provision where the expression occurs, includes the displaying or providing,
on a stock market of the securities exchange or stock exchange, of information
concerning:
- (a)
- if offers to sell, purchase or exchange the securities at particular
prices, or for particular consideration, are made or accepted on that stock
marketthose prices or that consideration; or
- (b)
- if offers or invitations are made on that stock market, being offers or
invitations that are intended, or may reasonably be expected, to result in the
making or acceptance of offers to sell, purchase or exchange the securities at
particular prices, or for particular considerationthose prices or that
consideration; or
- (c)
- in any casethe price at which, or the consideration for which,
particular persons, or particular classes of persons, propose, or may
reasonably be expected, to sell, purchase or exchange the securities.
"quoted ED securities" has the meaning given by section 111AM.
"quoted right" has the meaning given by section 1097A.
- Note: The meaning of quoted right may be extended by the SCH business rules
(under section 1097B) or by an ASIC declaration (under
section 1097C).
"quoted security" has the meaning given by section 1097A.
- Note: The meaning of quoted security may be extended by the SCH business rules
(under section 1097B) or by an ASIC declaration (under
section 1097C).
"receiver and manager" has a meaning affected by section 90.
"recognised futures exchange" means a body corporate that:
- (a)
- conducts a futures market outside Australia; and
- (b)
- is prescribed for the purposes of this definition.
"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.
"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 mean 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 companyincludes 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" means a person registered as a liquidator under
subsection 1282(2).
"registered office", in relation to a body corporate, means the body's
registered office under section 142 or 601CT, as the case requires.
"registered scheme" means a managed investment scheme that is registered under
section 601EB.
"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
- (ii)
- may hold property;
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.
"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, or de facto spouse, of such a promoter;
- (c)
- a relative of a spouse, or of a de facto spouse, of such a promoter;
- (d)
- a director or member of the body or of a related body corporate;
- (e)
- a relative, or de facto spouse, of such a director or member;
- (f)
- a relative of a spouse, or of a de facto 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, or de facto spouse, of such a beneficiary;
- (j)
- a relative of a spouse, or of a de facto 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.
"related party" (when used in Chapter 2E) has the meaning given by
section 228.
"relation-back day", in relation to a winding up of a company or Part 5.7
body, means:
- (a)
- if, because of Division 1A of Part 5.6, the winding up is taken
to have begun on the day when an order that the company or body be wound up
was madethe day on which the application for the order was filed; or
- (b)
- otherwisethe day on which the winding up is taken because of
Division 1A of Part 5.6 to have begun.
"relative", in relation to a person, means the spouse, parent or remoter
lineal ancestor, son, daughter 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 interest", in relation to securities, has a meaning given by
sections 608 and 609.
"relevant securities exchange" for a listed company, or listed registered
managed investment scheme, means:
- (a)
- the securities exchange on whose stock market the company or scheme is
listed; or
- (b)
- if the company or scheme is listed on 2 or more exchangeseach of
those exchanges.
"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 securitiesdirects 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
related parties. 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;
- (d)
- a liquidator of the corporation;
- (e)
- a trustee or other person administering a compromise or arrangement made
between the corporation and someone else.
"renounceable option" means an assignable option to have an allotment of
shares in a body corporate made to the holder of the option.
"representative" means:
- (a)
- in Chapter 7a securities representative; or
- (b)
- in Chapter 8a futures representative.
"reproduction", in relation to a document, means a machine-copy of the
document or a print made from a negative of the document.
"resolution", 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.
"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 officer" means:
- (a)
- in relation to a body corporate that is, or proposes to be, a member of
another body corporate:
- (i)
- a director or executive officer of the first-mentioned body; or
- (ii)
- a person who has control or substantial control of the first-mentioned
body; and
- (b)
- in relation to a body corporate that applies for a licencean officer
of the body who would perform duties in connection with the holding of the
licence.
"result" includes:
- (a)
- when used as a verbresult indirectly; and
- (b)
- when used as a nounan indirect result.
"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.
"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.
"rules" means:
- (a)
- rules of the Federal Court; or
- (b)
- rules of the Supreme Court of a State or internal Territory;
as the case requires.
"same kind", in relation to a Chapter 8 agreement, has the meaning given
by section 54.
SCH is short for securities clearing house.
"SCH business rules" means the business rules (within the meaning of
Chapter 7) of the securities clearing house.
"SCH certificate cancellation provisions" means the provisions of the
SCH business rules that deal with:
- (a)
- brokers cancelling certificates or other documents of title to quoted
securities or quoted rights; and
- (b)
- matters incidental to brokers cancelling such certificates or documents.
"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.
"SCH participant" means a person who, or a partnership that, under the
SCH business rules, is entitled to participate in the facilities provided by
the securities clearing house.
"SCH-regulated transfer" means a transfer (within the meaning of
Division 3 of Part 7.13) of a quoted security or a quoted right
that, according to the SCH business rules, is an SCH-regulated transfer.
"SCH subregister" means a subregister of quoted securities or quoted rights
maintained by the SCH under the SCH business rules.
"scrip" means documents that are, or are documents of title to, securities.
section 513C day , in relation to the administration of a company, has
the meaning given by section 513C.
section 770A stock market means a stock market in relation to which an
approval under section 770A is in force.
"securities" has the meaning given by section 92.
"securities adviser" means a dealer, an investment adviser or a
securities representative of a dealer or of an investment adviser.
"securities business" has the meaning given by section 93.
- Note: The activities of the securities clearing house will not generally
constitute a securities businesssee subsection 779J(1).
"securities clearing house" means the body corporate in relation to which an
approval under section 779B is in force.
"securities exchange" means:
- (a)
- in a provision (other than a provision of this Chapter or Chapter 6,
6C, 6D or 7) for the purposes of which a regulation is in force defining that
expressiona securities exchange as defined by that regulation; or
- (b)
- in Chapters 6 and 6C:
- (i)
- the Exchange;
- (ii)
- Australian Stock Exchange (Adelaide) Limited; or
- (iii)
- Australian Stock Exchange (Brisbane) Limited; or
- (iv)
- Australian Stock Exchange (Hobart) Limited; or
- (v)
- Australian Stock Exchange (Melbourne) Limited; or
- (vi)
- Australian Stock Exchange (Perth) Limited; or
- (vii)
- Australian Stock Exchange (Sydney) Limited; or
- (viii)
- a body corporate that is declared by the regulations to be a securities
exchange for the purposes of that Chapter; or
- (c)
- in this Chapter or Chapter 6D or 7:
- (i)
- a stock exchange; or
- (ii)
- a body corporate in relation to which an approval under section 770
is in force.
"securities law" means a provision of Chapter 5C, 6, 6A, 6B, 6C, 6D or 7.
"securities licence" means a dealers licence or an investment
advisers licence.
"securities licensee" means a person who holds a securities licence.
"securities recommendation" means a recommendation with respect to securities
or a class of securities, whether made expressly or by implication.
"securities report" means an analysis or report about securities.
"securities representative" has the meaning given by section 94.
"SEGC" means a body corporate in relation to which a nomination as the
Securities Exchanges Guarantee Corporation is in force under subsection
925A(1).
"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 scheme buy-back.
"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.
"small proprietary company" has the meaning given by subsection 45A(2).
"sold position" means:
- (a)
- in relation to a commodity agreement, or in relation to a futures
contract, being a commodity agreementthe position of a person who, by
virtue of the agreement, is under a Chapter 8 obligation to make delivery
in accordance with the agreement; or
- (b)
- in relation to a futures contract, being an adjustment agreementthe
position of a person who, by virtue of the agreement:
- (i)
- will, if the value or worth of the agreement (as determined in accordance
with the agreement) as at a particular future time exceeds by a particular
amount the value or worth of the agreement (as so determined) as at a
particular earlier time, be under a Chapter 8 obligation to pay that
amount; and
- (ii)
- will, if the value or worth of the agreement (as so determined) as at a
particular future time is less by a particular amount than the value or worth
of the agreement (as so determined) as at a particular earlier time, have a
Chapter 8 right to receive that amount.
"sole trader" means a person who is a member organisation of a
securities exchange.
"solvent" has the meaning given by subsection 95A(1).
"special resolution" means:
- (a)
- in relation to a company, a resolution:
- (i)
- of which notice as set out in paragraph 249L(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 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.
"staff member", in relation to ASIC, means a person who is a staff member for
the purposes of the ASIC Act.
"standardised agreement" means a Chapter 8 agreement that is one of 2 or
more Chapter 8 agreements each of which is a Chapter 8 agreement of
the same kind as the other, or as each of the others, as the case may be.
"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 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 court" means a court of a State, the Capital Territory or
the Northern Territory.
"State or Territory Supreme Court" means the Supreme Court of:
- (a)
- a State;
or
- (b)
- the Capital Territory; or
- (c)
- the Northern Territory.
"statutory demand" means:
- (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).
"statutory minimum" means:
- (a)
- if an amount greater than $2,000 is prescribedthe prescribed amount;
or
- (b)
- otherwise$2,000.
"stock exchange" means:
- (a)
- in a provision (other than a provision of this Chapter or Chapter 6
or 7) for the purposes of which a regulation is in force defining that
expressiona stock exchange as defined by that regulation; or
- (b)
- in Chapter 6:
- (i)
- the Exchange;
- (ii)
- Australian Stock Exchange (Adelaide) Limited; or
- (iii)
- Australian Stock Exchange (Brisbane) Limited; or
- (iv)
- Australian Stock Exchange (Hobart) Limited; or
- (v)
- Australian Stock Exchange (Melbourne) Limited; or
- (vi)
- Australian Stock Exchange (Perth) Limited; or
- (vii)
- Australian Stock Exchange (Sydney) Limited; or
- (viii)
- a body corporate that is declared by the regulations to be a stock
exchange for the purposes of that Chapter; or
- (c)
- in this Chapter or Chapter 7any of the following:
- (i)
- the Exchange;
- (ii)
- Australian Stock Exchange (Adelaide) Limited;
- (iii)
- Australian Stock Exchange (Brisbane) Limited;
- (iv)
- Australian Stock Exchange (Hobart) Limited;
- (v)
- Australian Stock Exchange (Melbourne) Limited;
- (vi)
- Australian Stock Exchange (Perth) Limited;
- (vii)
- Australian Stock Exchange (Sydney) Limited;
- (viii)
- the Stock Exchange of Bendigo Limited;
- (ix)
- the Stock Exchange of Ballarat Limited;
- (x)
- the Stock Exchange of Newcastle Limited;
- (xi)
- a body corporate in relation to which an approval under section 769
is in force.
"stock market" means, subject to section 97, a market, exchange or other
place at which, or a facility by means of which:
- (a)
- offers to sell, purchase or exchange securities are regularly made or
accepted; or
- (b)
- offers or invitations are regularly made, being offers or invitations that
are intended, or may reasonably be expected, to result, whether directly or
indirectly, in the making or acceptance of offers to sell, purchase or
exchange securities; or
- (c)
- information is regularly provided about the prices at which, or the
consideration for which, particular persons, or particular classes of persons,
propose, or may reasonably be expected, to sell, purchase or exchange
securities.
"subscriber" for securities that are interests in a managed investment scheme
means any person:
- (a)
- accepting an offer, or making an offer pursuant to an invitation, in
respect of the interests; or
- (b)
- subscribing for or buying the interests.
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,
or listed registered managed investment scheme, if:
- (a)
- the total votes attached to voting shares in the body, or voting interests
in the scheme, in which they or their associates:
- (i)
- have relevant interests; and
- (ii)
- would have a relevant interest but for subsection 609(6) (exchange 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
- (b)
- the person has made a takeover bid for voting shares in the body, or
voting interests in the scheme, and the takeover period has started and not
yet ended.
- Note: For relevant interest , see section 608.
"substantial part", in relation to activities, includes the whole of those
activities.
"superior court" means the Federal Court of Australia, the Supreme Court of a
State or Territory, the Family Court 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.
"suspend", in relation to a licence, includes, except in sections 827 and
1192, make under section 827 or 1192, as the case requires, an order
prohibiting the licensee as mentioned in paragraph 827(1)(d) or 1192(1)(d).
"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.
"territorial sea" has the same meaning as in the Seas and Submerged Lands Act
1973 .
"Territory" means:
- (a)
- the Capital Territory; or
- (b)
- the Northern Territory; or
- (c)
- an external Territory;
and, when used in a geographical sense, includes the coastal sea of the
Territory.
"this Act" includes the regulations.
"this jurisdiction" means the geographical area that consists of:
- (a)
- each referring State (including its coastal sea); and
- (b)
- the Capital Territory (including the coastal sea of the Jervis Bay
Territory); and
- (c)
- the Northern Territory (including its coastal sea).
"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 securities, in relation to a stock market, includes:
- (a)
- make or accept on that stock market an offer to sell, buy or exchange the
securities; and
- (b)
- make on that stock market an offer or invitation that is intended, or may
reasonably be expected, to result in the making or acceptance of an offer to
sell, buy or exchange the securities.
"trading day" of a securities exchange or stock exchange means a day on which
a stock market of the exchange or stock exchange is open for trading in
securities.
"trading floor", in relation to a futures market conducted by a
body corporate, means a place or facility that the body maintains or provides
for the acquisition or disposal of futures contracts by members of the body,
or by such members and other persons.
"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 charge created by the body on property of the body; 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.
"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.
"unauthorised futures market" means a futures market that is neither a
futures market of a futures exchange nor an exempt futures market.
"unauthorised stock market" means a stock market that is not:
- (a)
- a stock market of a securities exchange; or
- (b)
- a section 770A stock market; or
- (c)
- an exempt stock market.
"unclaimed money account" means an account that:
- (a)
- ASIC maintains under section 63J of the Audit Act 1901 ; and
- (b)
- is maintained for the sole purpose of containing money that is unclaimed
property.
"unclaimed property" means:
- (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; or
- (e)
- without limiting paragraph (d), money paid, or required to be paid,
under paragraph 1339(2)(b) into an unclaimed money account;
but does not include income that the Minister has applied under subsection
1339(3).
"uncommercial transaction" has the meaning given by section 588FB.
"underlying securities" means:
- (a)
- in relation to an option over securitiesthose securities; and
- (b)
- in relation to scrip that is constituted by documents that are, or are
documents of title to, securitiesthose 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).
"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.
"voting interest", in relation to a managed investment scheme, 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 property,
business and undertaking;
- (d)
- during the winding up of the scheme.
"voting power" in a company 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.
"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.