Corporations Act 2001

CHAPTER 2D - OFFICERS AND EMPLOYEES  

PART 2D.7 - BAN ON HEDGING REMUNERATION OF KEY MANAGEMENT PERSONNEL  

Note: This Part does not apply to a CCIV: see section 1224E .

SECTION 206J   NO HEDGING OF REMUNERATION OF KEY MANAGEMENT PERSONNEL  

206J(1)    
A member of the key management personnel for a company that is a disclosing entity, or a closely related party of such a member, must not enter into an arrangement (with anyone) if the arrangement would have the effect of limiting the exposure of the member to risk relating to an element of the member ' s remuneration that:

(a) has not vested in the member; or

(b) has vested in the member but remains subject to a holding lock.

206J(2)    
Without limiting paragraph (1)(a), remuneration that is not payable to a member until a particular day is, until that day, remuneration that has not vested in the member.

206J(3)    
In determining whether an arrangement has the effect described in subsection (1) in relation to an element of remuneration described in that subsection, regard is to be had to the regulations (if any) made for the purposes of this subsection.

206J(4)    
A member of the key management personnel for a company who contravenes subsection (1) commits an offence.

206J(5)    
An offence against subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code .

206J(6)    
A person commits an offence if:

(a) the person is a member of the key management personnel for a company; and

(b) a closely related party of the member contravenes subsection (1) in relation to the member; and

(c) the person is reckless as to the contravention.

206J(7)    
A closely related party of a member of the key management personnel for a company commits an offence if the party intentionally contravenes subsection (1) in relation to the member.

206J(8)    
ASIC may by writing declare that subsection (1) does not apply to a specified arrangement, but may do so only if ASIC is satisfied that the operation of that subsection would be unreasonable in the circumstances. The declaration has effect accordingly. The declaration is not a legislative instrument.

Note: A defendant bears an evidential burden in relation to the matter in subsection (8): see subsection 13.3(3) of the Criminal Code .