Treasury Laws Amendment (2023 Law Improvement Package No. 1) Act 2023 (76 of 2023)

Schedule 2   ALRC Financial Services Interim Report: single glossary of defined terms

Part 1   Amendments

Division 2   Terms in general use

Corporations Act 2001

48   After section 9AA

Insert:

9AB Meaning of asset

(1) An asset (except in relation to a sub-fund of a CCIV) is property, or a right, of any kind, and includes:

(a) any legal or equitable estate or interest (whether present or future, vested or contingent, tangible or intangible, in real or personal property) of any kind; and

(b) any chose in action; and

(c) any right, interest or claim of any kind including rights, interests or claims in or in relation to property (whether arising under an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing); and

(d) any CGT asset within the meaning of the Income Tax Assessment Act 1997.

(2) The assets of a financial services licensee are all the licensee's assets (as defined in subsection (1)), whether or not the assets are used in connection with the licensee's Australian financial services licence.

(3) An asset of a sub-fund of a CCIV has the meaning given by section 1233H.

9AC Meaning of director

(1) A director of a company or other body is:

(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 (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).

Note: Examples of provisions for which a person would not be a director because of paragraph (b) of this subsection include:

(a) section 205B (notice to ASIC of change of address); and

(b) section 249C (power to call meetings of a company's members); and

(c) subsection 251A(3) (signing minutes of meetings).

(2) In Part 5.1 (arrangements and reconstructions), the meaning of directors (as defined in subsection (1)) is affected by section 410.

9AD Meaning of officer

(1) An officer of a corporation (other than a CCIV) is:

(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 restructuring practitioner for the corporation; or

(g) a restructuring practitioner for a restructuring plan made by the corporation; or

(h) a liquidator of the corporation; or

(i) a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

Note: Section 201B contains rules about who can be a director of a corporation.

(2) An officer of a corporation that is a CCIV has the meaning given by section 1224B.

(3) An officer of an entity that is neither an individual nor a corporation is:

(a) if the entity is a partnership - a partner in the partnership; or

(b) if the entity is an unincorporated association - an office holder of the unincorporated association; or

(c) in any case - a person:

(i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or

(ii) who has the capacity to affect significantly the entity's financial standing.