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CORPORATIONS ACT 2001 No. 50, 2001 - SECT 938

Levy on transactions

(1) In this section:

"leviable dealer", in relation to a transaction, means:

(a)
if, when the transaction is entered into, a determination under subsection (10) is in force in relation to a class of transactions that includes the first-mentioned transaction—the dealer prescribed by the determination; or

(b)
otherwise:

(i)
in the case of a sale of securities—the dealer selling the securities; or
(ii)
in the case of a purchase of securities—the dealer buying the securities; or
(iii)
in the case of a guaranteed securities loan—the borrower.
"leviable transaction" means:

(a)
a sale or purchase of securities by a person or partnership where, as at the time when the agreement for the sale or purchase is made:

(i)
the sale or purchase is a reportable transaction as defined in subsection 920(1); and
(ii)
the person or partnership is a member organisation of a participating exchange and carries on a securities business in this jurisdiction; or
(b)
a guaranteed securities loan where, as at the time when the loan is entered into, the borrower carries on a securities business in this jurisdiction.

(2) If the amount in the Fund is less than the minimum amount, SEGC may, whether or not it also makes a determination under section 940, determine in writing that a levy is payable on leviable transactions. The levy is payable to the Commonwealth in accordance with this section.

Note: For the imposition and rate of the levy, see the Corporations (National Guarantee Fund Levies) Act 2001 .

(3) A levy under subsection (2) is payable in respect of a leviable transaction included in a class of transactions, or in any of 2 or more classes of transactions, determined in writing by SEGC for the purposes of the levy. (4) If SEGC makes or varies a determination under subsection (3), it must give to each participating exchange a copy of the determination, or of the variation and of the determination as varied, as the case may be. (5) If an amount of levy is payable under this section in respect of a leviable transaction, the leviable dealer in relation to the transaction must:

(a)
pay the amount of the levy to a participating exchange of which the dealer is a member, as agent for the Commonwealth; and

(b)
if, but for this subsection, the dealer would not be required by a provision of a law or by the participating exchange's business rules to give to the participating exchange particulars of the transaction sufficient to enable the participating exchange to ascertain the amount of levy—so give such particulars to the participating exchange;

within the period, and in the manner, specified by the participating exchange in writing either generally or in relation to a class of transactions that includes the first-mentioned transaction.

(6) Whenever an amount of levy (the levy amount ) is paid under this section, or under subsection 6(1) of the Corporations (National Guarantee Fund Levies) Act 2001 , to a participating exchange as agent for the Commonwealth:

(a)
the participating exchange must pay an amount equal to the levy amount to SEGC, as agent for the Commonwealth; and

(b)
SEGC must pay an amount equal to the amount so paid to it to the Commonwealth; and

(c)
the Consolidated Revenue Fund is appropriated by that amount for the purpose of payment to SEGC; and

(d)
the Commonwealth must pay the amount so appropriated to SEGC; and

(e)
SEGC must pay the amount it receives under paragraph (d) into the Fund.

(7) A payment of an amount to SEGC as required by paragraph (6)(d) in respect of a particular levy amount is subject to a condition that, if the Commonwealth becomes liable to refund the whole or a part of the levy amount, SEGC must pay to the Commonwealth an amount equal to the amount that the Commonwealth is liable to refund. SEGC may pay, out of the Fund, any amount so required to be paid to the Commonwealth. (8) The Financial Management and Accountability Act 1997 does not apply in relation to the payment of an amount of levy under this section to a participating exchange, or to SEGC, as agent for the Commonwealth. However, the operation of that Act in relation to the following payments is not affected.

(a)
the payment of an amount to the Commonwealth as required by paragraph (6)(b); or

(b)
the payment of an amount by the Commonwealth as required by paragraph (6)(d).

The participating exchange must, in accordance with the regulations, notify the Commonwealth of payments of levy it receives as agent for the Commonwealth.

(9) An amount payable by SEGC as required by paragraph (6)(b) may be set off against an amount payable to SEGC as required by paragraph (6)(d). (10) SEGC may make a written determination prescribing, in relation to a class or classes of transactions, the dealer who is to be the leviable dealer in relation to a transaction in that class or in any of those classes.


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