Corporations Regulations 2001

CHAPTER 1 - INTRODUCTORY  

PART 1.0 - MISCELLANEOUS  

REGULATION 1.0.01  

1.0.01   NAME OF REGULATIONS  
These Regulations are the Corporations Regulations 2001.

REGULATION 1.0.01A  

1.0.01A   COMMENCEMENT  
(Repealed by LA, s 48D.)

REGULATION 1.0.02   DEFINITIONS  

Note: A number of expressions used in these Regulations are defined in the Act, including the following:

(a) financial product;

(b) financial service;

(c) managed investment scheme;

(d) superannuation entity;

(e) trustee.

1.0.02(1)    

In these Regulations:

ABN
(Repealed by FRLI No F2023L01458, Sch 1[4(a)] (effective 1 November 2023).)

ACH
means Australian Clearing House Pty Limited.

Act
means the Corporations Act 2001.

agent
means a person appointed under subsection 601CG(1) of the Act.

APFRN
(Repealed by FRLI No F2023L01458, Sch 1[4(b)] (effective 1 November 2023).)

approved deposit fund
(Repealed by FRLI No F2023L01458, Sch 1[4(c)] (effective 1 November 2023).)

approved foreign bank :

(a) in relation to a participant of a licensed market, means a bank:

(i) established by or under the law of a foreign country; and

(ii) in relation to which there is in force an approval given by the market licensee in accordance with its operating rules or by ASIC under the market integrity rules; and

(b) in relation to a financial services licensee other than a participant of a licensed market, means a bank:

(i) regulated by an overseas regulator; and

(ii) in relation to which there is in force an approval given by ASIC for the purposes of this definition.

approved form
, in relation to a provision of the Act or of these Regulations, means the form that is approved under paragraph 350(1)(b) of the Act for use for that provision.

associated provisions
, in relation to provisions (the core provisions ) of the relevant old legislation as in force at a particular time, include (but are not limited to):

(a) any regulations or other instruments that are or were in force for the purposes of any of the core provisions at that time; and

(b) any interpretation provisions that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and

(c) any provisions relating to liability (civil or criminal) that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and

(d) any provisions that limit or limited, or that otherwise affect or affected, the operation of any of the core provisions at that time (whether or not they also limit or limited, or affect or affected, the operation of other provisions).

ASTC
means ASX Settlement and Transfer Corporation Pty Limited.

ASTC certificate cancellation provisions
means the provisions of the ASTC operating rules that deal with:

(a) the cancellation of certificates or other documents of title to Division 4 financial products; and

(b) matters incidental to the cancellation of those certificates or documents.

ASTC-regulated transfer
means a transfer of a Division 4 financial product:

(a) within the meaning of:

(i) Division 4 of Part 7.11 of the Act; and

(ii) regulations relating to transfer made for sections 1074A and 1074E of the Act; and

(b) that is effected through ASTC; and

(c) that, according to the ASTC operating rules, is an ASTC-regulated transfer.

Australian Passport Fund Registration Number
(Repealed by FRLI No F2023L01458, Sch 1[4(d)] (effective 1 November 2023).)

benefit fund
has the meaning given by section 16B of the Life Insurance Act 1995.

building society
has the same meaning as in section 16 of the RSA Act.

capital guaranteed
, for a superannuation product or an RSA, means that the contributions and accumulated earnings may not be reduced by a negative investment return or a reduction in the value of an asset in which the product is invested.

capital guaranteed FHSA product
(Repealed by SLI 2015 No 91, Sch 1[11] (effective 1 July 2015).)

capital guaranteed fund
means a public offer superannuation fund, or a sub-fund of a public offer superannuation fund, that has the following characteristics:

(a) its investments comprise 1 or more of the following only:

(i) deposits with an ADI;

(ii) investments in a capital guaranteed superannuation product or RSA;

(b) the contributions and accumulated earnings of its members cannot be reduced by negative investment returns (within the meaning of subregulation 5.01(1) of the SIS Regulations) or by any reduction in the value of its assets.

capital guaranteed member
means a member whose interest in a public offer superannuation fund is fully invested in a capital guaranteed fund.

carbon abatement contract
has the same meaning as in the Carbon Credits (Carbon Farming Initiative) Act 2011.

cash management trust interest
means an interest that:

(a) is an interest in a registered scheme or a notified foreign passport fund; and

(b) relates to an undertaking of the kind commonly known as a cash management trust.

choice product
(Repealed by FRLI No F2023L01458, Sch 1[4(e)] (effective 1 November 2023).)

client money reporting infringement notice
: see regulation 7.8.05A.

client money reporting infringement notice period
: see regulation 7.8.05A.

CPI
means the Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Bureau of Statistics.

Division 3 asset
means:

(a) shares mentioned in paragraph 1073A(1)(a) of the Act; or

(b) debentures mentioned in paragraph 1073A(1)(b) of the Act; or

(c) interests in a registered scheme mentioned in paragraph 1073A(1)(c) of the Act; or

(ca) a CGS depository interest mentioned in paragraph 1073A(1)(da) of the Act; or

(d) securities mentioned in paragraph 1073A(1)(e) of the Act.

Division 3 rights
means:

(a) rights mentioned in paragraph 1073A(1)(d) of the Act; and

(b) rights related to securities mentioned in paragraph 1073A(1)(e) of the Act.

Division 3 securities
means Division 3 assets and Division 3 rights.

Division 4 financial product
has the meaning given by regulation 7.11.03.

eligible termination payment
(Repealed by SLI 2007 No 102, Sch 1[1].)

enduring power of attorney
means an enduring power of attorney that complies with a law of a State or Territory.

Exchange body
means:

(a) Australian Stock Exchange Limited; or

(b) a subsidiary of Australian Stock Exchange Limited.

excluded ADF
(Repealed by FRLI No F2023L01458, Sch 1[4(f)] (effective 1 November 2023).)

exempt public sector superannuation scheme (EPSSS)
(Repealed by FRLI No F2023L01458, Sch 1[4(g)] (effective 1 November 2023).)

FHSA deposit account
(Repealed by SLI 2015 No 91, Sch 1[11] (effective 1 July 2015).)

FHSA life policy
(Repealed by SLI 2015 No 91, Sch 1[11] (effective 1 July 2015).)

financial business
means a business that:

(a) consists of, or includes, the provision of financial services; or

(b) relates wholly or partly to the provision of financial services.

form
means an approved form or a prescribed form.

friendly society
has the meaning given by section 16C of the Life Insurance Act 1995.

friendly society funeral product
: see subregulation 7.6.01(7).

FSR commencement
means the commencement of item 1 of Schedule 1 to the Financial Services Reform Act 2001.

funeral services entity
: see subregulation 7.6.01(7).

generic MySuper product
: a class of beneficial interest in a superannuation entity is a generic MySuper product if:

(a) the superannuation entity is a regulated superannuation fund; and

(b) the RSE licensee of the fund is authorised to offer that class of beneficial interest in the fund as a MySuper product under section 29T of the SIS Act; and

(c) the RSE licensee of the fund is not authorised to offer that class of beneficial interest in the fund as a MySuper product because section 29TA or 29TB of the SIS Act is satisfied in relation to the class.

income stream financial product
means an annuity or other facility that is a financial product which provides an income stream, including:

(a) an income stream that is an investment life insurance product; or

(b) an income designated under section 9 of the Social Security Act 1991 or section 5H of the Veterans' Entitlements Act 1986;

but does not include any of the following:

(c) a financial product under paragraph 764A(1)(ba) of the Act;

(d) anything that is not a financial product under section 765A of the Act;

(e) available money;

(f) deposit money;

(g) a managed investment product;

(ga) a foreign passport fund product;

(h) a security;

(i) a loan that has not been repaid in full;

(j) gold, silver or platinum bullion.

Note: In accordance with subsections 761G(6) and (7) of the Act, superannuation products and RSAs are not income stream financial products.

investment-based financial product
means:

(a) a financial product under section 763B of the Act; or

(b) a financial product under paragraph 764A(1)(ba), (bb) or (j) of the Act; or

(c) a financial product under paragraph 764A(1)(m) of the Act that is specified to be an investment-based financial product; or

(d) a security; or

(e) a managed investment product; or

(f) an investment life insurance product; or

(g) a deposit product; or

(ga) a carbon unit;

(gb) an Australian carbon credit unit;

(gc) an eligible international emissions unit;

but does not include any of the following:

(h) anything that is not a financial product under section 765A of the Act;

(i) an income stream financial product.

Note: In accordance with subsections 761G(6) and (7) of the Act, superannuation products and RSAs are not income stream financial products.

Lloyd's
has the same meaning as in the Insurance Act 1973.

margin loan
(Repealed by FRLI No F2023L01458, Sch 1[6] (effective 1 November 2023).)

medical indemnity insurance product
means an arrangement:

(a) under which medical indemnity cover is provided to:

(i) a medical practitioner as defined in section 4 of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003; or

(ii) a registered health professional prescribed by regulations made under the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 for the purposes of a provision of Part 3 of that Act; and

(b) to which the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 applies.

medical practitioner
(Repealed by SR 2003 No 368, Sch 1[1].)

minor fee
, for a standard margin lending facility, means a fee or cost for the facility that:

(a) does not relate to the ordinary acquisition, operation or closure of the facility; and

(b) is less than $10.

MySuper product
(Repealed by FRLI No F2023L01458, Sch 1[8(a)] (effective 1 November 2023).)

NFPFRN
: see Notified Foreign Passport Fund Registration Number .

non-cash payment financial product
means a financial product under section 763D of the Act, other than:

(a) a derivative; or

(b) a financial product under paragraph 764A(1)(k) of the Act; or

(c) anything that is not a financial product under section 765A of the Act.

non-Division 3 securities
means financial products to which Division 3 or 4 of Part 7.11 of the Act applies because of a declaration made by ASIC under paragraph 1075A(1)(b) of the Act.

Notified Foreign Passport Fund Registration Number
or NFPFRN
, for a notified foreign passport fund, is the unique registration code allocated to the fund by the home regulator for the fund.

OCH
(Repealed by SR 2004 No 398, Sch 1[2].)

old Corporations Act
means the Corporations Act 2001 as in force immediately before the FSR commencement.

policy committee
has the same meaning as in the SIS Act.

pooled superannuation trust
(Repealed by FRLI No F2023L01458, Sch 1[8(b)] (effective 1 November 2023).)

pre-FSR securities
means securities defined in subsection 92(3) of the old Corporations Act.

preserved benefits
means preserved benefits under:

(a) Subdivision 6.1.2 of the SIS Regulations; or

(b) Subdivision 4.1.2 of the RSA Regulations.

proper ASTC transfer
means:

(a) an ASTC-regulated transfer of a Division 4 financial product effected:

(i) through the prescribed CS facility operated by the ASTC; and

(ii) in accordance with the operating rules of the ASTC; and

(b) an ASTC-regulated transfer that the ASTC, in accordance with its operating rules, determines:

(i) to comply substantially with the applicable provisions of those operating rules; and

(ii) to be taken to be, and always to have been, a proper ASTC transfer.

public offer entity
has the same meaning as in the SIS Act.

public offer superannuation fund
has the same meaning as in the SIS Act.

qualifying gas exchange product
means an arrangement for the physical delivery of natural gas or related goods or services, including pipeline capacity.

qualifying gas trading exchange
means a facility:

(a) established by the Australian Energy Market Operator Limited (ACN 072 010 327) exercising its functions under subsection 91BRK(1) of the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 (SA); and

(b) through which persons may elect to buy and sell natural gas or related goods or services (including pipeline capacity).

quarter day
means 31 March, 30 June, 30 September or 31 December.

recipient
:

(a) in relation to an infringement notice given under regulation 7.2A.04, has the meaning given by regulation 7.2A.03; and

(b) in relation to a client money reporting infringement notice, has the meaning given by regulation 7.8.05A; and

(c) in relation to an infringement notice given under regulation 7.5A.104, has the meaning given by regulation 7.5A.103.

registration number
means:

(a) for a company - the number allotted to the company under paragraph 118(1)(a) or 601BD(1)(a) of the Act; or

(b) for a registered body - the number allotted to it under section 601CB or 601CE of the Act; or

(c) for an auditor - the number allotted to a person on registration of that person as an auditor.

regulated superannuation fund
(Repealed by FRLI No F2023L01458, Sch 1[8(c)] (effective 1 November 2023).)

restricted non-preserved benefits
means restricted non-preserved benefits under:

(a) Subdivision 6.1.3 of the SIS Regulations; or

(b) Subdivision 4.1.3 of the RSA Regulations.

retirement savings account
(Repealed by FRLI No F2023L01458, Sch 1[8(d)] (effective 1 November 2023).)

risk-based financial product
means:

(a) a financial product that is a facility through which, or through the acquisition of which, a person manages financial risk; or

(b) a life risk insurance product;

but does not include any of the following:

(c) a derivative;

(d) anything that is not a financial product under section 765A of the Act.

Note: In accordance with subsections 761G(5) and (7) of the Act, general insurance products are not risk-based financial products.

RSA Act
means the Retirement Savings Accounts Act 1997.

RSA Regulations
means the Retirement Savings Accounts Regulations 1997.

settlement authority
(Repealed by SLI 2005 No 38, Sch 1[1].)

settlement documents
, in relation to a transaction, means:

(a) if the agreement for the transaction has not been discharged - documents the supply of which in accordance with the agreement is sufficient to discharge the obligations of the seller under the agreement, in so far as the obligations relate to the supply of documents in connection with the transaction; or

(b) if the agreement for the transaction has been discharged, whether by performance or otherwise - documents the supply of which in accordance with the agreement would, if the agreement had not been discharged, be sufficient to discharge the obligations of the seller under the agreement, in so far as the obligations relate to the supply of documents in connection with the transaction.

simple managed investment scheme
means a registered scheme (other than a passport fund) which is or was offered because it meets 1 of the following requirements:

(a) the scheme invests at least 80% of its assets in money in an account with a bank on the basis that the money is available for withdrawal:

(i) immediately during the bank's normal business hours; or

(ii) at the end of a fixed-term period that does not exceed 3 months;

(b) the scheme invests at least 80% of its assets in money on deposit with a bank on the basis that the money is available for withdrawal:

(i) immediately during the bank's normal business hours; or

(ii) at the end of a fixed-term period that does not exceed 3 months;

(c) the scheme invests at least 80% of its assets under 1 or more arrangements by which the responsible entity of the scheme can reasonably expect to realise the investment, at the market value of the assets, within 10 days.

simple sub-fund product
means a security in a retail CCIV that is, or was, offered because the security is referable to a sub-fund of the CCIV (other than a passport fund) that meets one of the following requirements:

(a) the CCIV, in respect of the sub-fund, invests at least 80% of the assets of the sub-fund in money in an account with a bank on the basis that the money is available for withdrawal:

(i) immediately during the bank's normal business hours; or

(ii) at the end of a fixed-term period that does not exceed 3 months;

(b) the CCIV, in respect of the sub-fund, invests at least 80% of the assets of the sub-fund in money on deposit with a bank on the basis that the money is available for withdrawal:

(i) immediately during the bank's normal business hours; or

(ii) at the end of a fixed-term period that does not exceed 3 months;

(c) the CCIV, in respect of the sub-fund, invests at least 80% of the assets of the sub-fund under one or more arrangements by which the corporate director of the CCIV can reasonably expect to realise the investment, at the market value of the assets, within 10 days.

SIS Act
means the Superannuation Industry (Supervision) Act 1993.

SIS Regulations
means the Superannuation Industry (Supervision) Regulations 1994.

sub-plan
, in relation to a regulated superannuation fund, means a segment of the fund comprising a member or members of the fund, being a sub-plan that the trustee determines should be made.

successor fund
has the same meaning as in the SIS Regulations.

superannuation entity
(Repealed by FRLI No F2023L01458, Sch 1[8(e)] (effective 1 November 2023).)

superannuation interest
has the same meaning as in the SIS Act.

superannuation lump sum
has the meaning given by subsection995-1(1) of the Income Tax Assessment Act 1997.

superannuation scheme
means a complying superannuation fund within the meaning of subsection 995-1(1) of the Income Tax Assessment Act 1997.

superannuation-sourced money
means money in relation to which:

(a) the provider of a financial service knows that the money:

(i) will be paid to a person as a superannuation lump sum by the trustee of a regulated superannuation fund; or

(ii) has been paid as an eligible termination payment (within the meaning of these Regulations as in force immediately before 1 July 2007) or as a superannuation lump sum at any time during the previous 6 months; or

(b) the provider of the financial service ought reasonably to know that fact.

TDS nominee
(Repealed by SR 2002 No 282, Sch 1[2].)

transfer delivery service provision
(Repealed by SR 2002 No 282, Sch 1[2].)

trustee
(Repealed by FRLI No F2023L01458, Sch 1[8(f)] (effective 1 November 2023).)

unauthorised foreign insurer
has the same meaning as in the Insurance Regulations 2024.

unrestricted non-preserved benefits
means unrestricted non-preserved benefits under:

(a) Subdivision 6.1.4 of the SIS Regulations; or

(b) Subdivision 4.1.4 of the RSA Regulations.

warrant
means:

(a) a derivative that is transferable; or

(b) a financial product that is transferable and that would, apart from the effect of paragraph 761D(3)(c) of the Act, be a derivative, and is excluded by that paragraph only because it is:

(i) a security mentioned in paragraph 92(5)(c) of the Act; or

(ii) a legal or equitable right or interest mentioned in subparagraph 764A(1)(b)(ii) of the Act; or

(iii) a legal or equitable right or interest mentioned in subparagraph 764A(1)(ba)(ii) of the Act; or

(iv) a legal or equitable right or interest mentioned in subparagraph 764A(1)(bb)(ii) of the Act.

1.0.02(2)    
In these Regulations, a reference to a form by number is a reference to the form so numbered in Schedule 2.

1.0.02(3)    
(Repealed by SR 2001 No 319, Sch 1[1].)

REGULATION 1.0.02AA   MEANING OF BASIC DEPOSIT PRODUCT - PRESCRIPTION OF PRIOR NOTICE REQUIREMENT  

1.0.02AA(1)    
This regulation is made for the purposes of subparagraph (d)(ii) of the definition of basic deposit product in section 9 of the Act.

1.0.02AA(2)    
The prior notice requirement for an ADI included in the class of ADIs specified in subregulation (3) is a period of not more than 7 days before a withdrawal or transfer of funds from a facility made available by the ADI.

1.0.02AA(3)    
The class of ADIs is ADIs entitled under the Banking Act 1959 to use any of the following expressions in relation to their financial business:

(a)    credit union;

(b)    credit society;

(c)    credit co-operative;

(d)    building society.

REGULATION 1.0.02AB  

1.0.02AB   MEANING OF PRESCRIBED CS FACILITY  

For the purposes of the definition of prescribed CS facility in section 9 of the Act, ASX Settlement and Transfer Corporation Pty Limited (also known as 'ASTC') is prescribed.

REGULATION 1.0.02A  

1.0.02A   MEANING OF PRESCRIBED FINANCIAL MARKET  

For the definition of prescribed financial market in section 9 of the Act, the following financial markets are prescribed:

(a)    Asia Pacific Exchange Limited;

(b)    ASX Limited;

(c)    Chi-X Australia Pty Ltd;

(d)    National Stock Exchange of Australia Limited;

(e)    SIM Venture Securities Exchange Ltd.

REGULATION 1.0.02B   PROPRIETARY COMPANY THRESHOLDS (ACT S 45A)  

1.0.02B(1)    
For the purposes of paragraphs 45A(2)(a) and (3)(a) of the Act, the amount of $50 million is prescribed.

1.0.02B(2)    
For the purposes of paragraphs 45A(2)(b) and (3)(b) of the Act, the amount of $25 million is prescribed.

1.0.02B(3)    
For the purposes of paragraphs 45A(2)(c) and (3)(c) of the Act, the number 100 is prescribed.

REGULATION 1.0.03   PRESCRIBED FORMS (ACT s 350)  

1.0.03(1)   [How form is prescribed]  

A form in Schedule 2 mentioned in an item in column 4 of Schedule 1 is prescribed for the provision of the Act, or of these Regulations, that is specified in the item in column 2.

Note: Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a) if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b) if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

1.0.03(2)   [References to Chapters, Parts, etc]  

In a form, unless the contrary intention appears, a reference to a Chapter, Part, Division, section, subsection, paragraph or subparagraph is a reference to that Chapter, Part, Division, section, subsection, paragraph or subparagraph of the Act.

REGULATION 1.0.03A   DOCUMENTS THAT MUST BE IN THE PRESCRIBED FORM  

Documents lodged under the Act

1.0.03A(1)    

A document mentioned in the table under a provision of the Act mentioned in the table must be in the prescribed form.

Item	Document	Provision of the Act
1A	(Repealed)
1B	(Repealed)
1C	(Repealed)
1	Notice of appointment to administer a compromise or arrangement	Subsection 415(1)
2	Notice that an order for the appointment of a receiver of property has been obtained or of the appointment of a receiver	Paragraph 427(1)(a)
3	Notice of the appointment of a person to enter into possession or take control of the property of a corporation	Paragraph 427(1A)(a)
4	Notice of entering into possession or taking control	Paragraph 427(1B)(a)
5	Notice that the person has ceased to be a controller	Paragraph 427(4)(a)
6	Written notice stating that a company is taken to have passed a resolution to wind up the company	Paragraph 446A(5)(a)
7	Notice of the appointment of an administrator	Paragraph 450A(1)(a)
8	Notice of failure to execute deed of company arrangement	Paragraph 450C(a)
9	Notice of termination of deed of company arrangement	Paragraph 450D(a)
10	Notice of filing of application to wind up a company	Paragraph 470(1)(a)
11	Notice of making of order to wind up a company	Paragraph 470(1)(b)
12	Notice of withdrawal or dismissal of application to wind up a company	Paragraph 470(1)(c)
13	(Repealed)
14	(Repealed)
15	Written notice disclaiming property	Subsection 568A(1)
16	(Repealed)
20	A copy of the whole or a specified part of the register of members of a notified foreign passport fund	Subsection 1213P(4)

Documents lodged under the Passport Rules

1.0.03A(2)    
If the Passport Rules for this jurisdiction contain a requirement to lodge a document with ASIC (however the lodgement is described), the document must be lodged with ASIC in the prescribed form.

Note: The requirement in the Passport Rules need not use the word "lodge". For example, if the Passport Rules contain a requirement to notify ASIC of a matter or to provide a document to ASIC, subregulation (2) requires the notification or document to be in the prescribed form.

Note: Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a) if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b) if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

REGULATION 1.0.03B  

1.0.03B   DOCUMENTS THAT MUST BE LODGED WITH ASIC  

A document mentioned in an item in the table for a provision mentioned in the item must be lodged:

(a) with ASIC; and

(b) if the document is mentioned for subsection 430(1) of the Act - by a controller, within 7 days of the controller receiving a report under that subsection.

(Table - Documents that must be lodged with ASIC)

(Table - Documents that must be lodged with ASIC)

Item	Document	Provision of the Act
1	Statement in writing in the prescribed form verifying a report about the affairs of a company	Subsection 430(1) or 475(1) or (2)
2	Report about the affairs of a company	Subsection 430(1)

Note: Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a) if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b) if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 23 December 2004, forms for the documents mentioned in item 1 of the table are not prescribed in these Regulations.

REGULATION 1.0.03C  

1.0.03C   DOCUMENTS THAT MUST BE IN A FORM APPROVED BY ASIC  

A document mentioned in the table under a provision of the Act mentioned in the table must be in a form approved by ASIC (if a form has been approved).

(Table - Documents that must be in a form approved by ASIC

(Table - Documents that must be in a form approved by ASIC

Item	Document	Provision of the Act
1	(Repealed)
2	(Repealed)
3	Notice of termination of deed of company arrangement	Paragraph 450D(b)

Note: The documents mentioned in the table are not required to be lodged with ASIC under the Act, and are not documents to which section 350 of the Act applies.

REGULATION 1.0.04  

1.0.04   DIRECTIONS AND INSTRUCTIONS IN FORMS  
A form must be completed in accordance with the directions and instructions specified in the form.

REGULATION 1.0.05   DOCUMENTS AND INFORMATION REQUIRED BY FORMS  

1.0.05(1)   [Documents or information]  

If a form requires:

(a) the lodging of a document; or

(b) the giving of information:

(i) by completing the form in the prescribed manner; or

(ii) by supplying or completing another document;

the document or information is taken to be the document or information required for the provision of the Act or of these Regulations for which the form is approved under paragraph 350(1)(b) of the Act or included in Schedule 2.

1.0.05(2)   [Particulars]  

If the Act requires particulars to be provided by the giving of information in a form, the particulars included in the form are taken to be the particulars required:

(a) if the form is an approved form - for the provision of the Act for which the form is approved under paragraph 350(1)(b) of the Act; and

(b) if the form is a prescribed form - for the provision of the Act for which the form is included in Schedule 2.

REGULATION 1.0.05A  

1.0.05A   LODGMENT WITH ASIC  
(Repealed by FRLI No F2023L01458, Sch 1[131] (effective 1 November 2023).).

REGULATION 1.0.06   ANNEXURES ACCOMPANYING FORMS  

1.0.06(1)   [``annexure'']  

In this regulation:

annexure
includes a document that is with a form.

1.0.06(2)   [Requirements for annexures]  

An annexure to a form must:

(a) have an identifying mark; and

(b) be endorsed with the words:

``This is the annexure of (insert the number of pages) pages marked (insert an identifying mark) mentioned in the (insert a description of the form) signed by (insert `me' or `us') and dated (insert the date of signing)''

; and

(c) be signed by each person signing the form to which the document is annexed.

1.0.06(3)   [Numbering of pages]  

The pages in an annexure must be numbered consecutively.

1.0.06(4)   [Particulars of annexure]  

If a form has a document annexed, the following particulars of the annexure must be written on the form:

(a) the identifying mark; and

(b) the number of pages.

REGULATION 1.0.07  

1.0.07   GENERAL REQUIREMENTS FOR DOCUMENTS  
Unless ASIC otherwise approves, a document to be lodged must:

(a)    be on white or light pastel colour paper:

(i) of international A4 size; and

(ii) of medium weight and good quality; and

(b)    be clearly printed or written in black or dark blue in a manner that is permanent and will make possible a reproduction, by photographic, computerised or other electronic means that is satisfactory to ASIC; and

(c)    not be a carbon copy or a copy reproduced by any spirit duplication method; and

(d)    subject to paragraph (h), have margins of not less than 10 millimetres on all sides; and

(e)    if it comprises 2 or more sheets, be fastened together securely in the top left-hand corner; and

(f)    

for a document for a corporation, managed investment scheme or sub-fund of a CCIV (the subject ) - display on the first page of the document or, if the document is a single sheet, on that sheet:

(i) the subject's name; and

(ii) subject to regulation 7.6.03, the subject's ACN, ARBN, ARSN or ARFN; and

(iii) subject to regulation 7.6.03, if the last 9 digits of the subject's ABN are the same, and in the same order, as the last 9 digits of the subject's ACN, ARBN, ARSN or ARFN - the subject's ABN; and

(iv) if the subject is a managed investment scheme that is a notified foreign passport fund - the NFPFRN for the fund and any other unique number for the fund allocated to the fund by ASIC; and

(fa)    

for all documents - display on the first page of the document or, if the document is a single sheet, on that sheet:

(i) the title of the document; and

(ii) the section number of the Act under which the document is being lodged; and

(g)    have the following information at the top left-hand of the first sheet:

(i) registered agent number (if any); and

(ii) lodging party or agent name; and

(iii) address; and

(iv) telephone number; and

(v) facsimile number (if any); and

(vi) DX number and applicable suburb or city (if any); and

(h)    at the top right-hand of the first sheet, have a blank space that measures 35 millimetres from the top of the page and 65 millimetres from the right-hand side of the page; and

(j)    if the document is a form relating to a no liability company, be completed by inserting the words 'No Liability' in place of the word 'Limited'; and

(k)    in the case of an unlimited company, have the word 'Limited' omitted; and

(l)    if the document contains maps or charts on which areas have been distinguished by colour, also distinguish those areas by hatching, numbering or lettering.

Note: In addition to the requirements in paragraph (f), if a managed investment scheme is also an Australian passport fund, all documents relating to the fund lodged with ASIC must also include the scheme's APFRN: see section 1212B of the Act.

REGULATION 1.0.08   INFORMATION TO ACCOMPANY FINANCIAL DOCUMENTS LODGED FOR FINANCIAL YEARS  

1.0.08(1)    
A document lodged under subsection 319(1) of the Act for a financial year must be accompanied by the approved form setting out the following information:

(a)    

if the disclosing entity is a company (other than a retail CCIV):

(i) the ACN of the company or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, the ABN of the company; and

(ii) the dates on which the financial year to which the document relates begins and ends; and

(iii) a statement of certification in accordance with regulation 1.0.16; or

(b)    if the disclosing entity is a body (other than a company):

(i) the ARBN of the body or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARBN, the ABN of the body; and

(ii) the dates on which the financial year to which the document relates begins and ends; and

(iii) a statement of certification in accordance with regulation 1.0.16; or

(c)    

if the disclosing entity is a registered scheme:

(i) the ARSN of the scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARSN, the ABN of the scheme; and

(ii) the dates on which the financial year to which the document relates begins and ends; and

(iii) the name of the responsible entity of the scheme and the name of the scheme; and

(iv) a statement of certification in accordance with regulation 1.0.16; or

(d)    

if the disclosing entity is a retail CCIV:

(i) the name of the sub-fund of the CCIV in respect of which the document is lodged; and

(ii) the name of the corporate director of the CCIV; and

(iii) the ACN of the CCIV or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, the ABN of the company; and

(iv) the ARFN of that sub-fund of the CCIV or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARFN, the ABN of that sub-fund; and

(v) the dates on which the financial year to which the document relates begins and ends; and

(vi) a statement of certification in accordance with regulation 1.0.16; or

(e)    

if the disclosing entity is a registrable superannuation entity:

(i) the entity's ABN; and

(ii) the dates on which the financial year to which the document relates begins and ends; and

(iii) the name of the entity and its RSE licensee; and

(iv) a statement of certification in accordance with regulation 1.0.16.

Note: Section 1232C of the Act extends section 292 of the Act to preparing annual financial reports and directors' reports for sub-funds of retail CCIVs, and applies Division 1 of Part 2M.3 of the Act accordingly.

1.0.08(2)    
A document lodged by a notified foreign passport fund under subsection 319(1AA) of the Act for a financial year must be accompanied by the approved form setting out the following information:

(a)    the NFPFRN for the fund and any other unique number for the fund allocated to the fund by ASIC;

(b)    the name of the fund;

(c)    the name and ARBN of the operator of the fund;

(d)    the dates on which the financial year to which the document relates begins and ends;

(e)    a statement of certification in accordance with regulation 1.0.16.

REGULATION 1.0.09  

1.0.09   INFORMATION TO ACCOMPANY FINANCIAL DOCUMENTS ETC LODGED FOR HALF-YEARS  
A document lodged under section 320 of the Act for a half-year must be accompanied by the approved form setting out the following information:

(a)    

if the disclosing entity is a company (other than a retail CCIV):

(i) the ACN of the company or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, the ABN of the company; and

(ii) the dates on which the half-year to which the document relates begins and ends; and

(iii) a statement of certification in accordance with regulation 1.0.16; or

(b)    if the disclosing entity is a body (other than a company):

(i) the ARBN of the body or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARBN, the ABN of the body; and

(ii) the dates on which the half-year to which the document relates begins and ends; and

(iii) a statement of certification in accordance with regulation 1.0.16; or

(c)    if the disclosing entity is a registered scheme:

(i) the ARSN of the scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARSN, the ABN of the scheme; and

(ii) the dates of the beginning and end of the half-years to which the document relates; and

(iii) the name of the responsible entity of the scheme and the name of the scheme; and

(iv) a statement of certification in accordance with regulation 1.0.16; or

(d)    

if the disclosing entity is a retail CCIV:

(i) the name of the sub-fund of the CCIV in respect of which the document is lodged; and

(ii) the name of the corporate director of the CCIV; and

(iii) the ACN of the CCIV or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN, the ABN of the company; and

(iv) the ARFN of that sub-fund of the CCIV or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARFN, the ABN of that sub-fund; and

(v) the dates on which the financial year to which the document relates begins and ends; and

(vi) a statement of certification in accordance with regulation 1.0.16.

Note: Section 1232F of the Act extends section 302 of the Act to preparing half-year financial reports and directors' reports for sub-funds of retail CCIVs (if there are ED securities referable to the sub-fund), and applies Division 2 of Part 2M.3 of the Act accordingly.

REGULATION 1.0.10  

1.0.10   CONTINUOUS DISCLOSURE NOTICES  

A document lodged under section 675 or 675A of the Act must be accompanied by Form 1003 setting out the following information:

(a) if the disclosing entity is a body:

(i) the ACN or ARBN of the body or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ACN or ARBN, the ABN of the body; and

(ii) a statement of certification in accordance with regulation 1.0.16; or

(b) if the disclosing entity is a registered scheme:

(i) the ARSN of the scheme or, if the last 9 digits of its ABN are the same, and in the same order, as the last 9 digits of its ARSN, the ABN of the scheme; and

(ii) the name of the responsible entity of the scheme and the name of the scheme; and

(iii) a statement of certification in accordance with regulation 1.0.16.

REGULATION 1.0.11  

1.0.11   CERTAIN DOCUMENTS TO BE SIGNED BY PERSONAL REPRESENTATIVES ETC  
Unless these Regulations state otherwise, a document relating to a corporation that is a proprietary company to which section 201F of the Act applies that does not have a director or secretary must be signed by the personal representative or trustee mentioned in that section.

REGULATION 1.0.12  

1.0.12   FORM OF NOTICE OF RESOLUTION  

A copy of a resolution lodged under subsection 136(5), 157(2), 162(3), 246F(3), 254H(4), 254N(2), 256C(3), 260B(7), 461(2), 506(1B), 507(11) or 510(1A) of the Act must be set out in, or annexed to, a notice in accordance with the approved form.

REGULATION 1.0.13  

1.0.13   TIME FOR LODGING DOCUMENTS  
If:

(a) a document must be lodged; and

(b) the period within which the document must be lodged is not prescribed;

the document must be lodged:

(c) if paragraph (d) does not apply - within one month; or

(d) if the document is to be lodged by a foreign company and ASIC allows a further period because of special circumstances - that further period;

after the happening of the event to which the document relates.

REGULATION 1.0.14  

1.0.14   ADDRESS OF REGISTERED OFFICE OR PLACE OF BUSINESS  
If notice must be given under these Regulations of:

(a) the address of an office or a proposed office; or

(b) the address of a place of business;

of a corporation or a person, the notice must include:

(c) if applicable, the number of the room in which; and

(d) if applicable, the number of the floor or level on which; and

(e) the place in Australia in which;

the office or place of business is, or is to be, situated.

REGULATION 1.0.15   AFFIDAVITS AND STATEMENTS IN WRITING  

1.0.15(1)   [Who may swear or make on behalf of corporation]  

An affidavit or statement in writing must be sworn or made, on behalf of a corporation, by a director or a secretary of the corporation.

1.0.15(2)   [Affidavit sworn outside Australia]  

If an affidavit is sworn outside Australia, the affidavit is sufficient if it appears to be sworn in accordance with the requirements of the law of that place.

REGULATION 1.0.16   CERTIFICATION AND VERIFICATION OF CERTAIN DOCUMENTS  

1.0.16(1)    
A document relating to a corporation or registered scheme that is to be certified or verified must be certified or verified in the approved form and signed by:

(a)    a director or secretary of the corporation, or of the responsible entity of the scheme, who resides in Australia or an external territory; or

(b)    an agent of the corporation or entity or, if the agent is a company, a director or secretary of the company who resides in Australia or an external territory.

1.0.16(2)    
Subregulation (1) does not apply to a document relating to a notified foreign passport fund.

1.0.16(3)    
A document relating to a notified foreign passport fund that is to be certified or verified must be certified or verified in the approved form and signed by:

(a)    a director or secretary of the operator of the fund; or

(b)    the local agent for the operator of the fund; or

(c)    if the local agent is a company - a director or secretary of that company.

1.0.16(4)    

A document relating to a registrable superannuation entity that is to be certified or verified must be certified or verified in the approved form and signed by a director of the entity.

REGULATION 1.0.17   DOCUMENTS SIGNED OR SWORN IN ACCORDANCE WITH THE RULES OF COURT  

1.0.17(1)    

A document that is signed in accordance with the rules of court is taken to have been signed in accordance with regulation 1.0.11.

1.0.17(2)    

An affidavit or statement that is sworn or made in accordance with the rules of court is taken to have been sworn or made in accordance with regulation 1.0.15.

REGULATION 1.0.18  

1.0.18   PRESCRIBED PROVISIONS (ACT s 53)  
For section 53 of the Act, the following provisions of the Act are prescribed:

(a) section 657A;

(b) paragraphs 12(2)(b) and (c) of the Act.

REGULATION 1.0.20  

1.0.20   COPIES OF ORDERS TO BE LODGED  
A person who obtains an order of the Court under or for:

(c) (Repealed)

(d) (Repealed)

(e)    

subsection 484(1); or

(ea)    

paragraph 484(2)(c); or

(f)    section 583; or

(g)    section 585; or

(h)    section 601ND; or

(j)    section 1322;

of the Act, must lodge an office copy of the order with ASIC.

REGULATION 1.0.21  

1.0.21   IDENTIFICATION OF LODGED ORDERS  
If an order or copy of an order of a court is lodged with ASIC, it must be accompanied by a cover page in Form 105 identifying the legislative provision or other law under which the order was made and the nature of the order.

REGULATION 1.0.22  

1.0.22   MEANING OF THIS JURISDICTION - SPECIFICATION OF EXTERNAL TERRITORIES FOR SPECIFIED PROVISIONS OF CHAPTER 7 OF THE ACT  

For the purposes of subsection 5(9) of the Act, each of the external Territories is included in this jurisdiction for the purposes of Chapter 7 of the Act (except Parts 7.2 to 7.5 and Part 7.11) in relation to:

(a)    a superannuation product; and

(b)    an RSA; and

(c)    a financial service that relates to a superannuation product; and

(d)    a financial service that relates to an RSA.

PART 1.1 - PRESCRIBED AMOUNTS  

REGULATION 1.1.01  

1.1.01   PRESCRIBED AMOUNTS  
The amount specified in an item in column 3 of Schedule 4 is prescribed in relation to the matter specified in the item in column 2.

PART 1.2 - INTERPRETATION  

Division 1 - General  

REGULATION 1.2.01  

1.2.01   REMUNERATION RECOMMENDATIONS (ACT s 9B)  

For paragraph 9B(2)(f) of the Act, a recommendation, or advice or information, provided in relation to one or more members of the key management personnel for a company by an employee of a company within the same consolidated entity, is not a remuneration recommendation.

PART 1.2A - DISCLOSING ENTITIES  

REGULATION 1.2A.01  

1.2A.01   SECURITIES DECLARED NOT TO BE ED SECURITIES  
For section 111AJ of the Act, the following securities are declared not to be ED securities:

(a) securities of a body that, under the listing rules of the Australian Stock Exchange Limited, is an exempt foreign entity; or

(b) securities that are quoted on Australian Bloodstock Exchange Limited.

REGULATION 1.2A.02   FOREIGN COMPANIES ISSUING SECURITIES UNDER FOREIGN SCRIP OFFERS ETC EXEMPT FROM DISCLOSING ENTITY PROVISIONS  

1.2A.02(1)   [Conditions of exemption]  

For section 111AS of the Act, a foreign company is exempt from the disclosing entity provisions in respect of ED securities under section 111AG of the Act if:

(a) the company issues the securities in connection with a foreign takeover bid or foreign scheme of arrangement; and

(b) the securities issued are, at the time of issue, securities in a class of securities quoted on an approved foreign exchange; and

(c) the terms and conditions of the issue to citizens and Australian permanent residents are the same as those applying to each other person receiving securities that are in the same class; and

(d) the same notices, documents or other information (or, where applicable, an English translation of these) (modified, if necessary, to include any additional information for the purposes of complying with Chapter 6D of the Act) are given to Australian citizens or permanent residents as are given to each other person; and

(e) the notices, documents and other information are given to Australian citizens and permanent residents at the same time, or as soon as practicable after, they are given to those other persons; and

(f) in relation to the issue - the company complies with all legislative and stock exchange requirements in the place in which is located:

(i) the approved foreign exchange; or

(ii) if more than one - the principal approved exchange;

on which the company's securities are quoted.

1.2A.02(2)   [Definitions]  

In this regulation:

approved foreign exchange
includes:

(a) American Stock Exchange Inc.;

(b) New York Stock Exchange Inc.;

(c) New Zealand Stock Exchange;

(d) The Stock Exchange of Hong Kong Ltd;

(e) Stock Exchange of Singapore Limited;

(f) The Amsterdam Stock Exchange;

(g) the Frankfurt Stock Exchange;

(h) The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited;

(i) the Milan Stock Exchange;

(j) the NASDAQ National Market;

(k) the Paris Bourse;

(l) the Tokyo Stock Exchange;

(m) the Toronto Stock Exchange;

(n) the Zurich Stock Exchange.

foreign scheme of arrangement
means a compromise or arrangement that is subject to court approval under subsection 411(6) of the Act, between:

(a) a foreign company and a class of its creditors; or

(b) a foreign company and a class of its members.

foreign takeover bid
means a bid to acquire some or all of the securities of:

(a) all holders of a class of securities of a foreign company; or

(b) all holders of those securities except the bidder or the bidder and associates of the bidder.

REGULATION 1.2A.03   FOREIGN COMPANIES ISSUING SECURITIES UNDER EMPLOYEE SHARE SCHEME EXEMPT FROM THE DISCLOSING ENTITY PROVISIONS  

1.2A.03(1)   [Exemption]  

For section 111AS of the Act, a foreign company is exempt from the disclosing entity provisions in respect of an offer of shares in the company for issue or sale:

(a) that is made to employees of the company, or of an associated body corporate, under an employee share scheme; and

(b) in relation to which a disclosure document is lodged with ASIC.

1.2A.03(2)   [Non-employees obtaining interest under employee share scheme]  

Subregulation (1) is not affected by any action of an employee, the result of which is that another person who is not an employee acquires an interest in a share issued under the employee share scheme.

1.2A.03(3)   [Definitions]  

For this regulation:

(a) an employee share scheme is a scheme under which a company offers for issue or sale shares (or options over issued shares) in the company only to a person who is a full-time or part-time director or employee of the company or of an associated body corporate when the offer is made; and

(b) a body corporate is an associated body corporate in relation to a foreign company if:

(i) the body corporate is related to the company within the meaning of section 50 of the Act; or

(ii) the body corporate is entitled to at least 20% of the voting shares of the company; or

(iii) the company is entitled to at least 20% of the voting shares of the body corporate.

CHAPTER 2A - REGISTRATION OF COMPANIES  

PART 2A.1 - SIZE OF PARTNERSHIPS OR ASSOCIATIONS (ACT s 115(2))  

REGULATION 2A.1.01   SIZE OF PARTNERSHIPS OR ASSOCIATIONS  

2A.1.01(1)   [Prescribed number for kind of partnership or association]  

For paragraph 115(1)(b) of the Act, the number prescribed for a kind of partnership or association is the number specified in the following table for that kind of partnership or association:

Item	Kind of partnership or association	Number
1	(a) Actuaries, medical practitioners, patent attorneys, sharebrokers, stockbrokers or trade mark attorneys	50
	(b) Partnerships or associations of the kind specified in subregulation (2)
2	Architects, pharmaceutical chemists or veterinary surgeons	100
3	Legal practitioners	400
4	Accountants	1,000

2A.1.01(2)   [Kind of partnership or association]  

For paragraph (b) of item 1 of the table in subregulation (1), the partnership or association is one that:

(a) has as its primary purpose collaborative scientific research; and

(b) includes as members:

(i) at least 1 university; and

(ii) at least 1 private sector participant;

whether or not it also includes government agencies or publicly funded research bodies.

2A.1.01(3)   ["private sector participant"]  

In subregulation (2):

private sector participant
means an entity that obtains the majority of its revenue from sources other than Commonwealth, State or Territory appropriations.

PART 2A.2 - CHANGE OF PLACE OF REGISTRATION OF COMPANY (ACT s 119A(3))  

REGULATION 2A.2.01   APPROVAL OF APPLICATION FOR CHANGE OF PLACE OF REGISTRATION  

2A.2.01(1)   [Necessity for special resolution]  

An application to ASIC for a change in the State or Territory in this jurisdiction in which a company is taken to be registered must be approved by a special resolution of the company.

2A.2.01(2)   [Copy must be given to ASIC]  

A copy of the special resolution must be given to ASIC within 14 days after the day on which it is passed.

REGULATION 2A.2.02   SPECIAL RESOLUTION MAY BE SET ASIDE BY COURT ORDER  

2A.2.02(1)   [Application]  

Within 28 days after the passing of a special resolution approving an application for a change in the State or Territory in this jurisdiction in which a company is taken to be registered, a member, or members, of the company having at least 10% of the votes capable of being cast on the special resolution may apply in writing to the Court to have the resolution set aside.

2A.2.02(2)   [Representative action]  

A member may, with the written consent of other members mentioned in subregulation (1), apply on their behalf to the Court under that subregulation.

2A.2.02(3)   [Ground for setting aside]  

The Court may order the special resolution to be set aside if the Court is satisfied that it would unfairly prejudice the applicant or applicants if the State or Territory in which the company is taken to be registered were changed in accordance with the resolution.

2A.2.02(4)   [Copy must be given to ASIC]  

The company must give ASIC a copy of the Court order within 14 days after the day on which it is made.

REGULATION 2A.2.03   APPLICATION FOR CHANGE OF PLACE OF REGISTRATION  

2A.2.03(1)   [Application to ASIC]  

A company may, in accordance with a special resolution of the company, apply to ASIC for a change in the State or Territory in this jurisdiction in which the company is taken to be registered.

2A.2.03(2)   [Approved form]  

The application must be in accordance with the approved form.

REGULATION 2A.2.04   CHANGE OF PLACE OF REGISTRATION  

2A.2.04(1)   [ASIC must alter details]  

On application under regulation 2A.2.03, ASIC must alter the details of the company's registration to show the change in the State or Territory in this jurisdiction in which the company is taken to be registered if:

(a) the company has passed a special resolution approving the application for the change; and

(b) the Court has not made an order setting aside the special resolution; and

(c) the relevant Minister of the State or Territory in which the company is taken to be registered has approved the change under subparagraph 119A(3)(a)(i) of the Act; and

(d) ASIC is not aware of any other reason why the change should not be made.

2A.2.04(2)   [Alteration 28 days after application]  

ASIC must not alter details of the company's registration until 28 days after the day on which the application was made.

2A.2.04(3)   [New certificate of registration]  

ASIC must give the company a new certificate of registration after it alters details of the company's registration.

CHAPTER 2B - BASIC FEATURES OF A COMPANY  

PART 2B.6 - NAMES  

REGULATION 2B.6.01   AVAILABILITY OF NAMES (ACT s 147)  

2B.6.01(1)   [Identical names]  

For paragraphs 147(1)(a) and (b) of the Act, the rules for ascertaining whether a name is identical with another name are the rules set out in Part 1 of Schedule 6.

2B.6.01(2)   [Unacceptable names]  

For paragraph 147(1)(c) of the Act, a name is unacceptable for registration under the regulations if it is unacceptable under the rules set out in Part 2 of Schedule 6.

REGULATION 2B.6.02   CONSENTS REQUIRED FOR USE OF CERTAIN LETTERS, WORDS AND EXPRESSIONS  

2B.6.02(1)   [Application]  

This regulation applies to a name if:

(a) the name:

(i) is the subject of an application for registration of a name under section 117 of the Act; or

(ii) is the subject of an application for reservation of a name under section 152 of that Act; or

(iii) for an application for a change of name under section 157 of the Act - is the name to which the previous name is to be changed; and

(b) the name is, uses or includes:

(i) letters, or a word or expression, specified in column 2 of an item in Part 4 or 5 of Schedule 6; or

(ii) other letters, or another word or expression (whether or not in English), that is of like import to the letters, word or expression specified in the item.

2B.6.02(2)   [Interpretation]  

In paragraph (1)(b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:

(a) as part of another word or expression; or

(b) in combination with other words or letters, or other symbols.

2B.6.02(3)   [Use of ``ADI'']  

However, this regulation does not apply to use of the letters ADI as part of another word.

Example

The letters adi appear in the word traditional . This regulation does not apply to use of the word traditional .

2B.6.02(4)   [Consent of Minister]  

If an item in Part 4 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the Minister who is specified in the item.

2B.6.02(5)   [Consent of public authority or agency]  

If an item in Part 5 of Schedule 6 applies in relation to the name, the application must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.

REGULATION 2B.6.02A   EXEMPTION FROM REQUIREMENT TO INCLUDE "LIMITED" IN NAME  

2B.6.02A(1)    
For the purposes of subsections 5H(5) and 5I(1) of the Act, subsection 148(2) of the Act does not apply in relation to Westpac Banking Corporation (ABN 33 007 457 141).

2B.6.02A(2)    
For the purposes of subsection 5I(1) of the Act, the Westpac Banking Corporation (Transfer of Incorporation) Act 2000 (NSW) is the specified law.

REGULATION 2B.6.03  

2B.6.03   EXEMPTIONS FROM REQUIREMENT TO SET OUT NAME AND ACN ON CERTAIN DOCUMENTS (ACT s 155)  
For section 155 of the Act, the exemptions provided for in Schedule 7 apply in relation to the requirements of subsection 153(2) of the Act.

CHAPTER 2C - REGISTERS  

PART 2C.1 - REGISTERS GENERALLY  

Division 2C.1.1 - Location of register  

REGULATION 2C.1.01  

2C.1.01   FORM OF NOTICE  

A notice to be lodged under subsection 172(2) of the Act must be in a form approved by ASIC (if a form has been approved).

Division 2C.1.2 - Right to inspect and get copies of register  

REGULATION 2C.1.02  

2C.1.02   FORM OF REGISTER  

For subsection 173(3) of the Act, a copy of a register must be provided as a delimited text file:

(a) produced by a commercially available spreadsheet or database application; and

(b) copied onto a CD-ROM or a USB portable memory device.

REGULATION 2C.1.03  

2C.1.03   IMPROPER PURPOSES FOR GETTING COPY OF REGISTER  

For paragraph 173(3A)(b) of the Act, the following purposes are prescribed:

(a) soliciting a donation from a member of a company;

(b) soliciting a member of a company by a person who is authorised to assume or use the word stockbroker or sharebroker in accordance with section 923B of the Act;

(c) gathering information about the personal wealth of a member of a company;

(d) making an offer that satisfies paragraphs 1019D(1)(a) to (d) of the Act;

(e) making an invitation that, were it an offer to purchase a financial product, would be an offer that satisfies paragraphs 1019D(1)(a) to (d) of the Act.

Note: See subsection 1019D(1) of the Act for a description of unsolicited offers to purchase financial products off-market.

REGULATION 2C.1.04  

2C.1.04   INFORMATION TO BE INCLUDED IN APPLICATION FOR COPY OF REGISTER  

For paragraph 173(3A)(c) of the Act, the information that must be contained in an application is the name and address of the applicant.

Note: An application must also state the purpose for accessing a copy of a register - see subsection 173(3A) of the Act.

Division 2C.1.3 - Use of information on registers by bodies corporate  

REGULATION 2C.1.05   CONTACT WITH MEMBERS AFTER FAILURE TO PROVIDE COPY OF REGISTER  

2C.1.05(1)   [Application]  

This regulation applies if a body corporate mentioned in regulation 12.8.02 has failed to give a person a copy of the part of the register of members of the body who hold member shares:

(a) within 28 days after the person's request for a copy; or

(b) if a longer period has been allowed by ASIC - within the longer period.

2C.1.05(2)   [Purpose and procedure]  

If the person:

(a) makes a statutory declaration that the person intends to use information that is contained in that part of the register:

(i) for the purpose of contacting members of the body, or sending material to members of the body, for a purpose mentioned in subsection 177(1A) of the Act; and

(ii) in a way that does not contravene that subsection or another law; and

(b) gives the statutory declaration to the body corporate; and

(c) pays the reasonable costs of contacting the members, or sending material to the members;

the body corporate must do everything that is reasonably possible to arrange for the members to be contacted, or for the material to be sent to the members, on the person's behalf by a third party service provider nominated by the body corporate.

2C.1.05(3)   [Suspicion of improper use]  

If the body corporate believes on reasonable grounds that the person intends to use information that is contained in that part of the register:

(a) for a purpose that is not in accordance with subparagraph (2)(a)(i); or

(b) in a way that is not in accordance with subparagraph (2)(a)(ii);

the body corporate is not required to arrange for the members to be contacted or for the material to be sent to the members on the person's behalf, and may terminate any existing arrangement.

2C.1.05(4)   [Obligations of body corporate]  

The arrangements made by the body corporate must ensure that, to the extent reasonably possible:

(a) the details, from the register of members, of each member to whom material is to be sent, or with whom contact is to be made, will be provided to the third party service provider within 14 days after the person pays the costs mentioned in subregulation (2); and

(b) a copy of any material that is to be sent to a member will be provided to the third party service provider within 28 days after the person provides the material to the body corporate; and

(c) if material is not to be sent to a member - written details of the contact that is to be made with a member must be provided to the third party service provider within 28 days after the person provides the written details to the body corporate; and

(d) for any material that is to be sent to a member - the material will be sent to the member within 14 days after the body corporate provides the material to the third party service provider; and

(e) if material is not to be sent to a member - contact will be made with the member within 14 days after the body corporate provides, to the third party service provider, the written details of the contact that is to be made with the member.

2C.1.05(5)   [Timing and cost of arrangement]  

An arrangement made under subregulation (2) must:

(a) allow for contact to be made, or material to be sent, for a period of 6 months after the period mentioned in subregulation (1); and

(b) require the person to pay the reasonable costs of contacting the members or sending material to the members to be paid on each occasion before the contact is made or the material is sent.

2C.1.05(6)   [Further application]  

A reference in subregulation (1) to the register of members of a body corporate who hold member shares includes a reference to:

(a) the register of members of a body corporate that is a company limited by guarantee; and

(b) the register of members of a body corporate limited by shares and guarantee, who do not hold shares in the body.

PART 2C.2 - FORM OF NOTICE  

CHAPTER 2D - OFFICERS AND EMPLOYEES  

PART 2D.2 - RESTRICTIONS ON INDEMNITIES, INSURANCE AND TERMINATION PAYMENTS  

Division 2D.2.2 - Termination payments  

REGULATION 2D.2.01   MEANING OF BASE SALARY  

2D.2.01(1)   ["base salary"]  

For the definition of base salary in section 9 of the Act, the matters specified in the following table are base salary.

Item	Matter
1	The components of a short-term employee benefit that:
	(a)	are not dependent on the satisfaction of a performance condition; and
	(b)	are specified in paragraphs (a), (c) and (d) of column 3 of item 6 in the table in subregulation 2M.3.03(1); and
	(c)	are paid during the relevant period
2	A superannuation contribution that:
	(a)	is not dependent on the satisfaction of a performance condition; and
	(b)	is paid during the relevant period
3	A share-based payment that:
	(a)	is not dependent on the satisfaction of a performance condition; and
	(b)	is specified in column 3 of item 11 in the table in subregulation 2M.3.03(1); and
	(c)	is paid during the relevant period
4	A liability or prospective liability to pay tax in respect of a fringe benefit taxable amount under:
	(a)	the Fringe Benefits Tax Assessment Act 1986; or
	(b)	the Fringe Benefits Tax Act 1986;
	that relates to the provision of a matter specified in item 1, 2 or 3

2D.2.01(2)   ["relevant period"]  

For subregulation (1):

(a) if a person has held an office in relation to a company:

(i) throughout a period of more than 12 months; or

(ii) throughout a number of periods of more than 12 months in total;

the relevant period for that person is the last 12 months of that period or the last 12 months of the total period; and

(b) if a person has held an office in relation to a company:

(i) throughout a period of 12 months or less; or

(ii) throughout a number of periods of 12 months or less in total;

the relevant period for that person is that period or the total period.

REGULATION 2D.2.02   MEANING OF BENEFIT  

2D.2.02(1)   [Things that are benefits]  

For paragraph 200AB(1)(e) of the Act, each of the following things is specified:

(a) any kind of pension, other than a pension paid from a superannuation fund or a superannuation annuity (whether it is paid from an Australian or a foreign fund);

(b) an amount paid as a voluntary out-of-court settlement in a matter relating to the termination of employment;

(c) a payment:

(i) that is made as part of a restrictive covenant, restraint-of-trade clause or non-compete clause (however described); and

(ii) the value of which, when added to the value of all other payments (if any) already made or payable in connection with the person's retirement from board or managerial offices in the company and related bodies corporate, exceeds the payment limit set by section 200G of the Act.

Note: Subsection 200AB(1) of the Act provides that a benefit includes specified things. Paragraph 200AB(1)(e) of the Act provides that a benefit includes a thing specified in regulations. Things that are not specified in subsection 200AB(1) of the Act or subregulation (1) may also be benefits for the purposes of the Act.

2D.2.02(2)   [Things that are not benefits]  

For subsection 200AB(2) of the Act, each of the following things is specified:

(a) a deferred bonus, including a benefit attributable to:

(i) the release of the deferred bonus from a restriction relating to death or incapacity; or

(ii) the investment of the deferred bonus; or

(iii) another change to the value of the deferred bonus;

(b) a payment from a defined benefits superannuation scheme that was in existence when this regulation commenced;

(c) a genuine superannuation contribution that is paid by an employer or employee on or after the commencement of this regulation;

(d) genuine accrued benefits that are payable under a law within the meaning of section 200H of the Act;

(e) a payment made under a requirement imposed by a law of another country;

(f) a reasonable payment that is made:

(i) in accordance with a policy of the company or body that applies to all employees; and

(ii) as a result of a genuine redundancy; and

(iii) having regard to the length of a person's service in an office or position;

(g) a payment from a prescribed superannuation fund due to death or incapacity.

Example for paragraph (d)

A payment of annual leave, long service leave or sick leave.

Note: Subsection 200AB(2) of the Act provides that a benefit does not include a thing specified in regulations. Things that are not specified in subregulation (2) may also not be benefits for the purposes of the Act.

2D.2.02(3)   [Definitions]  

In this regulation:

deferred bonus
includes an amount, or property, that:

(a) is earned by, accrued by or allocated to a person as remuneration in respect of a period of employment before the person's retirement; and

(b) is not paid, provided or released to the person at the time at which it is earned, accrued or allocated.

prescribed superannuation fund
has the meaning given by section 200B of the Act.

REGULATION 2D.2.03   WHEN BENEFIT GIVEN IN CONNECTION WITH RETIREMENT FROM AN OFFICE OR A POSITION  

2D.2.03(1)   [Circumstances in which benefit given]  

For subsection 200A(1A) of the Act, each of the following circumstances is specified in relation to a benefit:

(a) circumstances in which the benefit is the automatic vesting of share-based payments for a person on or as a result of retirement from an office or a position;

(b) circumstances in which the benefit is the accelerated vesting of share-based payments for a person on or as a result of retirement from an office or a position; and

(c) circumstances in which the benefit is a payment made to a person in lieu of the giving of notice of termination.

Note: Subsection 200A(1A) of the Act provides that a benefit is given in connection with a person's retirement from an office or a position if the benefit is given in circumstances specified in regulations.

2D.2.03(2)   [Exempt benefits]  

For paragraph 200F(1)(b) of the Act, a benefit requires shareholder approval:

(a) if it:

(i) is a deferred bonus under paragraph 2D.2.02(2)(a); and

(ii) is subject to automatic or accelerated vesting under subregulation (1); and

(iii) exceeds the payment limit set by section 200G of the Act; and

(b) if it is not a benefit attributable to the release of a deferred bonus from a restriction due to death or incapacity.

PART 2D.6 - DISQUALIFICATION FROM MANAGING CORPORATIONS  

Division 2D.6.1 - Automatic disqualification (Act s 206B)  

REGULATION 2D.6.01  

2D.6.01   PRESCRIBED FOREIGN JURISDICTIONS (ACT s 206B(7))  

For section 206B of the Act, a foreign country, or part of a foreign country, mentioned in the following table is prescribed.

Item	Country or part of country
1	New Zealand

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

REGULATION 2D.7.01   HEDGING ARRANGEMENTS (ACT s 206J(3))  

2D.7.01(1)    
For subsection 206J(3) of the Act, an arrangement in the following table is to be treated as an arrangement that has the effect of limiting the exposure of a member mentioned in subsection 206J(1) of the Act to the risk mentioned in that subsection.

Item	Arrangement
1	A put option on incentive remuneration
2	A short position on shares that forms part of incentive remuneration
3	An income protection insurance contract in which the insurable risk event affects the financial value of remuneration or equity or an equity-related instrument for the key management personnel

2D.7.01(2)    
For subsection 206J(3) of the Act, an arrangement in the following table is not to be treated as an arrangement that has the effect of limiting the exposure of a member mentioned in subsection 206J(1) of the Act to the risk mentioned in that subsection.

Item	Arrangement
1	An income protection insurance contract in which the insurable risk event is the death, incapacity or illness of any of the key management personnel
2	A foreign currency risk arrangement

2D.7.01(3)    
In this regulation, a short position is a position in relation to shares in a listed entity where the quantity of the shares that a person has is less than the quantity of the shares that the person has an obligation to deliver.

2D.7.01(4)    
In subregulation (3), the person has the shares if:

(a) the person is holding the shares on the person's own behalf; or

(b) another person is holding the shares on the person's behalf; or

(c) the person has entered into an agreement to buy the shares but has not received the shares; or

(d) the person has vested title in the shares in a borrower, or in an entity nominated by the borrower, under a securities lending arrangement.

2D.7.01(5)    
In subregulation (3), the shares that the person has an obligation to deliver are the shares that the person:

(a) has an obligation to deliver under a sale agreement where the shares have not been delivered; or

(b) has an obligation to vest title in a lender under a securities lending arrangement; or

(c) has any other non-contingent legal obligation to deliver.

CHAPTER 2E - RELATED PARTY TRANSACTIONS  

REGULATION 2E.1.01  

2E.1.01   SMALL AMOUNTS GIVEN TO RELATED ENTITY  

For subsection 213(1) of the Act, $5 000 is prescribed.

CHAPTER 2G - MEETINGS  

PART 2G.2 - MEETINGS OF MEMBERS OF COMPANIES  

Division 6 - Proxies and body corporate representatives  

REGULATION 2G.2.01   AUTHENTICATION OF APPOINTMENT OF PROXY (ACT s 250A)  

2G.2.01(1)   [Electronic authentication]  

For subsection 250A(1) of the Act, an electronic authentication of an appointment of a proxy must include:

(a) a method of identifying the member; and

(b) an indication of the member's approval of the information communicated.

2G.2.01(2)   [Email or internet votes]  

If a member appoints a proxy by e-mail or Internet-based voting:

(a) the member must be identified by personal details (for example, the member's name, address and date of birth); and

(b) the member's approval of the information communicated must be communicated by a form of security protection (for example, the entering of a confidential identification number such as a shareholder registration number or holder identification number).

CHAPTER 2K - CHARGES  

PART 2K.2 - REGISTRATION  

REGULATION 2K.2.01  

2K.2.01   LIEN OR CHARGE ON CROP OR WOOL, OR STOCK MORTGAGE, THAT IS A REGISTRABLE SECURITY: PRESCRIBED LAW - SUBSECTION 262(5) OF THE ACT  

For subsection 262(5) of the Act, each of the following laws is a prescribed law of a State or Territory:

NEW SOUTH WALES

Parts II and III of the Liens on Crops and Wool and Stock Mortgages Act 1898

Parts 2 and 3 (to the extent that Part 3 applies to agricultural goods mortgages) of the Security Interests in Goods Act 2005

VICTORIA

Parts VII and VIII of the Instruments Act 1958

QUEENSLAND

Part II (being provisions that apply in relation to registration of instruments that are stock mortgages, liens upon crops and liens on wool) and Part IV (other than section 24) of the Bills of Sale and Other Instruments Act 1955

The Liens on Crops of Sugar Cane Act 1931

WESTERN AUSTRALIA

Sections 7 and 8 and Parts IX, X and XI of the Bills of Sale Act 1899

SOUTH AUSTRALIA

Liens on Fruit Act, 1923

Stock Mortgages and Wool Liens Act, 1924

TASMANIA

Sections 36 of the Bills of Sale Act 1900

Stock, Wool and Crop Mortgages Act 1930

AUSTRALIAN CAPITAL TERRITORY

Parts IV and V of the Instruments Act 1933.

REGULATION 2K.2.02  

2K.2.02   TIME PERIOD FOR THE PROVISIONAL REGISTRATION OF CHARGES  
For paragraph 265(5)(b) of the Act, the period in which a certificate to the effect set out in paragraph 265(4)(b) of the Act must be produced to ASIC is 90 days after the notice is lodged.

REGULATION 2K.2.03  

2K.2.03   CHARGE THAT IS A REGISTRABLE SECURITY: SPECIFIED LAW - PARAGRAPHS 273A(4)(b), 273B(3)(b) AND 273C(3)(b) OF THE ACT  
For paragraphs 273A(4)(b), 273B(3)(b) and 273C(3)(b) of the Act the following law is a specified law of a State or Territory:

NEW SOUTH WALES

Security Interests in Goods Act 2005

CHAPTER 2L - DEBENTURES  

PART 2L.2 - DUTIES OF BORROWER  

REGULATION 2L.2.01   REGISTER RELATING TO TRUSTEES FOR DEBENTURE HOLDERS  

2L.2.01(1)   [Details to be entered in the register]  

For subsection 283BCA(2) of the Act, ASIC must enter the following details in the register in relation to a trustee for debenture holders:

(a) the name and address of the trustee;

(b) either:

(i) if the trustee has an ACN - the trustee's ACN; or

(ii) the trustee's ABN;

(c) the name and address of the borrower who appointed the trustee;

(d) the name of the trust for which the trustee has been appointed to act;

(e) the day the trust deed was executed.

2L.2.01(2)   [ASIC to amend register if notified of change]  

If ASIC receives a notice from a borrower under subsection 283BC(2) of the Act that the trustee has revoked the trust deed, it must amend the register by removing the details entered on the register in relation to the trustee.

CHAPTER 2M - FINANCIAL REPORTS AND AUDIT  

PART 2M.3 - FINANCIAL REPORTING  

Division 1 - Annual financial reports and directors' reports  

REGULATION 2M.3.01   DISCLOSURES REQUIRED BY NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - ANNUAL FINANCIAL REPORTS (ACT s 295)  

2M.3.01(1)    
For paragraph 295(3)(a) of the Act, if paragraph 295(2)(b) of the Act applies to a parent entity, the following disclosures are required in the notes to the financial statements of the consolidated entity:

(a)    current assets of the parent entity;

(b)    total assets of the parent entity;

(c)    current liabilities of the parent entity;

(d)    total liabilities of the parent entity;

(e)    shareholders' equity in the parent entity separately showing issued capital and each reserve;

(f)    profit or loss of the parent entity;

(g)    total comprehensive income of the parent company;

(h)    details of any guarantees entered into by the parent entity in relation to the debts of its subsidiaries;

(i)    details of any contingent liabilities of the parent entity;

(j)    details of any contractual commitments by the parent entity for the acquisition of property, plant or equipment;

(k)    comparative information for the previous period for each of paragraphs (a) to (j).

2M.3.01(2)    
The disclosures in subregulation (1) must be calculated in accordance with accounting standards in force in the financial year to which the disclosure relates.

2M.3.01(3)    

In this regulation:

parent entity
means a company, registered scheme, registrable superannuation entity or disclosing entity that is required by the accounting standards to prepare financial statements in relation to a consolidated entity.

REGULATION 2M.3.03   PRESCRIBED DETAILS (ACT s 300A)  

2M.3.03(1)    

For paragraph 300A(1)(c) of the Act, the details set out in the table relating to a person are prescribed.

Item	Condition (if any)	Details
General
1		The person's name
2		Each position held by the person in the financial year
3	If the person has held a position mentioned in item 2 for less than the whole financial year	(a)	The date on which the person began holding the position
		(b)	The date (if any) on which the person ceased to hold the position
4	If there has been a change in the chief executive officer or a director of the entity during the period:	(a)	The name of each person involved in the change
	(a)	starting immediately after the reporting date; and	(b)	The position involved
	(b)	ending immediately before the date on which the financial report is authorised for issue	(c)	The date on which the change occurred
5	If a person (other than a director or chief executive officer) has retired during the period:	(a)	The person's name
	(a)	starting immediately after the reporting date; and	(b)	The position involved
	(b)	ending immediately before the date on which the financial report is authorised for issue	(c)	The date on which the retirement took effect
Payments and benefits
6	Note See subregulation (2).	The person's short-term employee benefits, divided into at least the following components:
		(a)	cash salary, fees and short-term compensated absences;
		(b)	short-term cash profit-sharing and other bonuses;
		(c)	non-monetary benefits;
		(d)	other short-term employee benefits
7	Note See subregulation (2).	The person's post-employment benefits, divided into at least the following components:
		(a)	pension and superannuation benefits;
		(b)	other post-employment benefits
8	Note See subregulation (2).	The person's long-term employee benefits other than benefits mentioned in items 6 and 7, separately identifying any amount attributable to a long-term incentive plan
9	Note See subregulation (2).	The person's termination benefits
10	For any position the person started to hold during the financial year	Payments (if any) made to the person, before the person started to hold the position, as part of the consideration for the person agreeing to hold the position, including:
		(a)	the monetary value of the payment; and
		(b)	the date of the payment
11	Note See subregulation (2).	Share-based payments made to the person, divided into at least the following components:
		(a)	equity-settled share-based payment transactions, showing separately:
					(i)	shares and units; and
					(ii)	options and rights;
		(b)	cash-settled share-based payment transactions;
		(c)	all other forms of share-based payment compensation (including hybrids)
Compensation
12	For each grant of a cash bonus, performance-related bonus or share-based payment compensation benefit made to a person, whether part of a specific contract for services or not	The terms and conditions of each grant affecting compensation in the reporting period or a future reporting period, including the following:
		(a)	the grant date;
		(b)	the nature of the compensation granted;
		(c)	the service and performance criteria used to determine the amount of compensation;
		(d)	if there has been any alteration of the terms or conditions of the grant since the grant date - the date, details and effect of each alteration;
		(e)	the percentage of the bonus or grant for the financial year that was paid to the person, or that vested in the person, in the financial year;
		(f)	the percentage of the bonus or grant for the financial year that was forfeited by the person (because the person did not meet the service and performance criteria for the bonus or grant) in the financial year;
		(g)	the financial years, after the financial year to which the report relates, for which the bonus or grant will be payable if the person meets the service and performance criteria for the bonus or grant;
		(h)	estimates of the maximum and minimum possible total value of the bonus or grant (other than option grants) for financial years after the financial year to which the report relates
13	For each contract for services between a person and the disclosing entity (or any of its subsidiaries)	Any further explanation that is necessary in addition to those prescribed in paragraph 300A(1)(ba) of the Act and item 12 to provide an understanding of:
		(a)	how the amount of compensation in the current reporting period was determined; and
		(b)	how the terms of the contract affect compensation in future periods
14	If the terms of share-based payment transactions (including options or rights) granted as compensation to key management personnel have been altered or modified by the disclosing entity or any of its subsidiaries during the reporting period	(a)	The date of the alteration
		(b)	The market price of the underlying equity instrument at the date of the alteration
		(c)	The terms of the grant of compensation immediately before the alteration, including:
					(i)	the number and class of the underlying equity instruments, exercise price; and
					(ii)	the time remaining until expiry; and
					(iii)	each other condition in the terms that affects the vesting or exercise of an option or other right
		(d)	The new terms
		(e)	The difference between:
					(i)	the total of the fair value of the options or other rights affected by the alteration immediately before the alteration; and
					(ii)	the total of the fair value of the options or other rights immediately after the alteration
15	If options and rights over an equity instrument issued or issuable by the disclosing entity or any of its subsidiaries have been provided as compensation to a person during the reporting period	(a)	The number of options and the number of rights that:
	Note See subregulation (3).		(i)	have been granted; and
					(ii)	have vested;
					during the reporting period
		(b)	The terms and conditions of each grant made during the reporting period, including:
					(i)	the fair value per option or right at grant date; and
					(ii)	the exercise price per share or unit; and
					(iii)	the amount, if any, paid or payable by the recipient; and
					(iv)	the expiry date; and
					(v)	the date or dates when the options or rights may be exercised; and
					(vi)	a summary of the service and performance criteria that must be met before the beneficial interest vests in the person
16	If an equity instrument that is issued or issuable by the disclosing entity or any of its subsidiaries has been provided as a result of the exercise during the reporting period of options and rights that have been granted as compensation to a person	(a)	The number of equity instruments
	Note See subregulation (3).	(b)	If the number of options or rights exercised differs from the number of equity instruments disclosed under paragraph (a) - the number of options or rights exercised
		(c)	The amount paid per instrument
		(d)	The amount unpaid per instrument
Remuneration disclosure
17	For an option or right over equity instruments:	The number of each of the following:
	(a)	issued or issuable by the disclosing entity or any of its subsidiaries; and	(a)	options and rights held at the start of the reporting period;
	(b)	held, whether directly, indirectly or beneficially, by any of the following:	(b)	options and rights granted during the reporting period as compensation;
		(i)	each key management person;	(c)	options and rights exercised during the reporting period;
		(ii)	a close member of the family of that person;	(d)	options and rights resulting from any other change during the reporting period;
		(iii)	an entity over which the person or the family member has, either directly or indirectly, control, joint control or significant influence	(e)	options and rights held at the end of the reporting period;
				(f)	options and rights vested at the end of the reporting period;
				(g)	options and rights vested and exercisable at the end of the reporting period;
				(h)	options and rights vested and unexercisable at the end of the reporting period
18	For an equity instrument (other than an option or a right):	The number of each of the following:
	(a)	issued or issuable by the disclosing entity or any of its subsidiaries; and	(a)	equity instruments held at the start of the reporting period;
	(b)	held, whether directly, indirectly or beneficially, by any of the following:	(b)	equity instruments granted during the reporting period as compensation;
		(i)	each key management person;	(c)	equity instruments received during the reporting period on the exercise of an option or right;
		(ii)	a close member of the family of that person;	(d)	equity instruments resulting from any other change during the reporting period;
		(iii)	an entity over which the person or the family member has, either directly or indirectly, control, joint control or significant influence	(e)	equity instruments held at the end of the reporting period;
				(f)	equity instruments if included in the number disclosed under paragraph (e), held nominally at the end of the reporting period
19	For a transaction (other than share-based payment compensation) that:	(a)	The nature of each different type of transaction
	(a)	involves an equity instrument issued or issuable by the disclosing entity or any of its subsidiaries; and	(b)	For each transaction, the terms and conditions of the transaction
	(b)	has occurred, during the reporting period, between the disclosing entity or any of its subsidiaries and any of the following:
		(i)	a key management person;
		(ii)	a close member of the family of that person;
		(iii)	an entity over which the person or the family member has, either directly or indirectly, control, joint control or significant influence;
	if the terms or conditions of the transaction were more favourable than those that it is reasonable to expect the entity would adopt if dealing at arms-length with an unrelated person
20	For the aggregate of loans made, guaranteed or secured, directly or indirectly, by the disclosing entity and any of its subsidiaries, in the reporting period in relation to:	(a)	The amount outstanding at the start of the reporting period
	(a)	all key management personnel; and	(b)	The amount of interest paid and payable in the reporting period to the disclosing entity or to any of the entity's subsidiaries
	(b)	close members of the family of a member of the key management personnel; and	(c)	The difference between the amount disclosed under paragraph (b) and the amount of interest that would have been charged on an arms-length basis
	(c)	an entity over which any of the persons mentioned in paragraphs (a) and (b) have, directly or indirectly, control, joint control or significant influence	(d)	Each write-down and each allowance for doubtful receivables recognised by the disclosing entity or by any of the entity's subsidiaries
		(e)	The amount outstanding at the end of the reporting period
		(f)	The number of key management personnel included in the group aggregate at the end of the reporting period
		(g)	A summary of the terms and conditions of the loans
21	If the aggregate of loans made, guaranteed or secured, directly or indirectly, by the disclosing entity and any of its subsidiaries, in the reporting period in relation to:	(a)	The amount outstanding at the start of the reporting period
	(a)	a particular key management person; and	(b)	The amount of interest paid and payable in the reporting period to the disclosing entity or to any of the entity's subsidiaries
	(b)	close members of the family of the key management person; and	(c)	The difference between the amount disclosed under paragraph (b) and the amount of interest that would have been charged on an arms-length basis
	(c)	an entity over which any of the persons mentioned in paragraphs (a) and (b) has, directly or indirectly, control, joint control or significant influence;	(d)	Each write-down and each allowance for doubtful receivables recognised by the disclosing entity or by any of the entity's subsidiaries
	is greater than $100 000	(e)	The amount outstanding at the end of the reporting period
		(f)	The highest amount of the key management person's indebtedness during the reporting period
		(g)	A summary of the terms and conditions of the loans
22	For a transaction during the reporting period between the disclosing entity, or any of its subsidiaries, and a key management person, a close member of the family of that person, or an entity over which the key management person or the family member has, directly or indirectly, control, joint control or significant influence, other than a transaction mentioned in item 19, 20 or 21 or subregulation (3B)	(a)	Each type of transaction of a different nature
		(b)	The terms and conditions of each type of transaction or, if there are different categories of terms and conditions within a type of transaction, the terms and conditions of each category of transaction
		(c)	For each type of transaction or, if there are different categories of terms and conditions within a type of transaction, for each category of transaction:
					(i)	the names of the persons involved in the transaction; and
					(ii)	the aggregate amount recognised
23	For each aggregate amount disclosed under item 22	(a)	The total of amounts recognised as revenue, separately identifying, if applicable, the total amounts recognised as:
			(i)	interest revenue; or
			(ii)	dividend revenue
		(b)	The total of amounts recognised as expense, separately identifying, if applicable, the total amounts recognised as:
			(i)	interest expense; or
			(ii)	write-downs of receivables and allowances made for doubtful receivables
		(c)	Any further disclosures necessary to provide an understanding of the effects of the transactions on the financial statements prepared in accordance with Australian Accounting Standards
24	For each transaction identified under item 22	(a)	The total of all assets, classified into current and non-current assets, and, if applicable, any allowance for doubtful receivables at the end of the reporting period
		(b)	The total of all liabilities, classified into current and non-current liabilities

2M.3.03(2)    
For items 6, 7, 8, 9 and 11 of the table:

(a) the information of the kind described in the item for the previous financial year must also be disclosed in the financial year to which the item relates (to give comparative information for the purposes of the item); but

(b) paragraph (a) does not apply in relation to the first financial year in which paragraph 300A(1)(c) of the Act applies in relation to a person.

Note: The effect of paragraph (b) is that no comparative information is required in the first period of reporting on a specific individual.

2M.3.03(3)    

For items 15 to 19 of the table, a disclosure required by the item must:

(a) be separated into each class of equity instrument; and

(b) identify each class of equity instrument by:

(i) the name of the disclosing entity or the relevant subsidiary that issued the equity instrument; and

(ii) the class of equity instrument; and

(iii) if the instrument is an option or right - the class and number of equity instruments for which it may be exercised.

2M.3.03(3A)    

For items 20 and 21 of the table in subregulation (1), loans do not include loans involved in transactions that are in substance options, including non-recourse loans.

2M.3.03(3B)    
A transaction with, or an amount that is receivable from or payable under a transaction to, a key management person, a close member of the family of that person, or an entity over which the person or the family member has, directly or indirectly, control, joint control or significant influence, is excluded from the requirements of items 22 to 24 if:

(a) the transaction occurs within a normal employee, customer or supplier relationship on terms and conditions no more favourable than those that it is reasonable to expect the entity would have adopted if dealing at arms-length with an unrelated person; and

(b) information about the transaction does not have the potential to affect adversely decisions about the allocation of scarce resources made by users of the financial statements, or the discharge of accountability by the key management person; and

(c) the transaction is trivial or domestic in nature.

2M.3.03(3C)    
Items 17 to 24 of the table in subregulation (1) apply in relation to a directors' report for a financial year commencing on or after 1 July 2013.

2M.3.03(4)    

For subregulation (1), a company must apply the requirements of relevant accounting standards when disclosing the information mentioned in the subregulation.

2M.3.03(5)    
In subregulation (1), an expression that is:

(a) used in the subregulation; and

(b) defined in a relevant accounting standard that is applied for the purpose of disclosing information;

has the meaning given by that accounting standard.

REGULATION 2M.3.04   PRESCRIBED DETAILS - ANNUAL DIRECTORS' REPORT OF A REGISTRABLE SUPERANNUATION ENTITY  

2M.3.04(1)    
For the purposes of paragraph 300C(1)(a) of the Act, the details in the following table in relation to the remuneration of each member of the key management personnel of a registrable superannuation entity are prescribed.

Prescribed details
Item	Applicable members	Details
General
1	Each member	The name of the member
2	Each member who:	The date on which the member:
	(a)	began to hold a position as a member of the key management personnel during the most recently completed financial year; or	(a)	began holding the position; or
	(b)	retired from a position as a member of the key management personnel during the most recently completed financial year	(b)	retired from the position
3	Each member whose position changed during the most recently completed financial year	Both of the following:
		(a)	the member's name and position;
		(b)	when the change occurred
4	Each member who retired during the most recently completed financial year	Both of the following:
		(a)	the member's name and position;
		(b)	when the retirement took effect
Payments and benefits
5	Each member	The short-term employee benefits of the member for the most recently completed financial year, divided into at least the following components:
		(a)	cash salary, fees and short-term compensated absences;
		(b)	short-term cash profit-sharing and other bonuses;
		(c)	non-monetary benefits;
		(d)	other short-term employee benefits
6	Each member	The post-employment benefits of the member for the most recently completed financial year, divided into at least the following components:
		(a)	pension and superannuation benefits;
		(b)	other post-employment benefits
7	Each member	The long-term employee benefits other than benefits mentioned in items 5 and 6 for the member for the most recently completed financial year (any amount attributable to a long-term incentive plan being separately identified)
8	Each member whose position as a member of the key management personnel was terminated during the most recently completed financial year	The member's termination benefits
9	Each member who:	Details of the payment, including:
	(a)	began to hold a position as a member of the key management personnel during the most recently completed financial year; and	(a)	the monetary value of the payment; and
	(b)	received a payment as part of the consideration for agreeing to hold the position	(b)	the date of the payment
10	Each member	The share-based payments made to the member during the most recently completed financial year, divided into at least the following components:
			(a)	equity-settled share-based payment transactions, showing separately:
				(i)	shares and units; and
				(ii)	options and rights;
			(b)	cash-settled share-based payment transactions;
			(c)	all other forms of share-based payment compensation (including hybrids)
Compensation
11	If a grant of a cash bonus, performance-related bonus or share-based payment compensation benefit, whether part of a specific contract for services or not, was made to a member during the most recently completed financial year - each such member	The terms and conditions of each grant affecting compensation, including the following:
		(a)	the grant date;
		(b)	the nature of the compensation granted;
		(c)	the service and performance criteria used to determine the amount of compensation;
		(d)	if there has been any alteration of the terms or conditions of the grant since the grant date - the date, details and effect of each alteration;
		(e)	the percentage of the bonus or grant for the financial year that was paid to the member, or that vested in the member, in the financial year;
		(f)	the percentage of the bonus or grant for the financial year that was forfeited by the member (because the member did not meet the service and performance criteria for the bonus or grant) in the financial year;
		(g)	the financial years, after the most recently completed financial year, for which the bonus or grant will be payable if the member meets the service and performance criteria for the bonus or grant;
		(h)	estimates of the maximum and minimum possible total value of the bonus or grant (other than option grants) for financial years after the most recently completed financial year
12	If, during the most recently completed financial year, a contract for services was negotiated between the RSE licensee and a member - each such member	An explanation of:
		(a)	how the amount of compensation was determined; and
		(b)	how the terms of the contract affect compensation in future periods
13	If the terms of share-based payment transactions (including options or rights) granted as compensation to a member were altered or modified by the RSE licensee during the most recently completed financial year - each such member	All of the following:
		(a)	the date of the alteration or modification;
		(b)	the market price of the underlying equity instrument at the date of the alteration or modification;
		(c)	the terms of the grant of compensation immediately before the alteration or modification, including:
			(i)	the number and class of the underlying equity instruments; and
			(ii)	the exercise price for any option or other right affected by the alteration or modification, immediately before and after the alteration or modification; and
			(iii)	the time remaining until expiry of the underlying equity instruments; and
			(iv)	each other condition in the terms affecting the vesting or exercise of an option or other right;
		(d)	the modified or altered terms;
		(e)	the difference between:
			(i)	the total of the fair value of the options or other rights affected by the alteration or modification immediately before the alteration or modification; and
			(ii)	the total of the fair value of the options or other rights immediately after the alteration or modification
14	If, during the most recently completed financial year, options and rights over an equity instrument issued or issuable by the RSE licensee or by a related body corporate were provided as compensation to a member - each such member	All of the following:
		(a)	the number of options and the number of rights that, during the financial year, were:
			(i)	granted; and
			(ii)	vested;
		(b)	the terms and conditions of each grant made during the financial year, including:
			(i)	the fair value per option or right at grant date; and
			(ii)	the exercise price per share or unit; and
			(iii)	the amount, if any, paid or payable by the member; and
			(iv)	the expiry date of the grant; and
			(v)	when the options or rights may be exercised; and
			(vi)	a summary of the service and performance criteria that must be met before the beneficial interest vests in the member
15	If an equity instrument that is issuable by the RSE licensee or a related body corporate was issued as a result of the exercise, during the most recently completed financial year, of options and rights that were granted as compensation to a member - each such member	All of the following:
		(a)	how many equity instruments were issued;
		(b)	if the number of options or rights exercised differs from the number of equity instruments disclosed under paragraph (a) - how many options or rights were exercised;
		(c)	the amount paid under each instrument;
		(d)	the amount payable under each instrument that is yet to be paid
16	If an amount attributable to the service of a member for the most recently completed financial year is paid to an organisation or entity rather than to the member - each such member	Both of the following:
		(a)	the amount;
		(b)	the name of the organisation or entity

2M.3.04(2)    
If:

(a)    a member of the key management personnel receives a payment, benefit or compensation from a related party of the registrable superannuation entity; and

(b)    all or part of the payment, benefit or compensation relates to work performed for the registrable superannuation entity;

then, to the extent that the payment, benefit or compensation relates to that work, the table applies to the payment, benefit or compensation in the same way as if it were paid or given by the registrable superannuation entity.

2M.3.04(3)    
The details referred to in item 14 or 15 of the table must be separated into each class of equity instrument, and each class of equity instrument must be identified by:

(a)    the name of the issuing entity; and

(b)    the class of equity instrument; and

(c)    if the instrument is an option or right - the class and number of equity instruments for which it may be exercised.

Accounting standards apply to the reporting of prescribed details

2M.3.04(4)    
The details are to be determined in accordance with the requirements of any relevant accounting standards.

2M.3.04(5)    
If an expression used in the table, or in subregulation (2) or (3), is defined in a relevant accounting standard, the expression has the meaning given by the standard.

Division 9 - Reference of financial report to the Financial Reporting Panel  

PART 2M.4 - AUDITOR  

REGULATION 2M.4.01A  

2M.4.01A   MEMBERSHIP DESIGNATIONS (ACT s 324BE)  

For paragraph 324BE(1)(b) of the Act, a designation mentioned in an item of the table is prescribed for membership of the professional accounting body mentioned in the item.

Membership designations
Item	Professional accounting body	Designation
1	Institute of Chartered Accountants in Australia	CA; or FCA
2	CPA Australia	CPA; or FCPA
3	Institute of Public Accountants	FIPA; or MIPA

REGULATION 2M.4.01  

2M.4.01   NOTICE OF APPOINTMENT OF AUDITORS  

The responsible entity of a registered scheme must lodge a notice in the approved form telling ASIC of the appointment by the entity of an auditor of the scheme under section 331AAA or 331AAB of the Act within 14 days of the appointment.

PART 2M.4A - ANNUAL TRANSPARENCY REPORTS FOR AUDITORS  

REGULATION 2M.4A.01  

2M.4A.01   APPLICATION  

This Part applies in relation to annual transparency reports for:

(a) the transparency reporting year in which Schedule 1 to the Corporations Legislation Amendment (Audit Enhancement) Act 2012 commences; and

(b) all later transparency reporting years.

Note: For the definitions of annual transparency report and transparency reporting year , see section 9 of the Act.

REGULATION 2M.4A.02   CONTENT OF ANNUAL TRANSPARENCY REPORT (ACT s 332B)  

2M.4A.02(1)    
For subsection 332B(1) of the Act, Schedule 7A sets out the information that an annual transparency report published in accordance with subsection 332A(2) of the Act must contain.

2M.4A.02(2)    
If the report is published by an audit firm or authorised audit company, see Part 2 of Schedule 7A.

2M.4A.02(3)    
If the report is published by an individual auditor, see Part 3 of Schedule 7A.

PART 2M.6 - MODIFICATION OF THE OPERATION OF CHAPTER 2M OF THE ACT  

REGULATION 2M.6.01  

2M.6.01   MODIFICATIONS (ACT s 343)  
For section 343 of the Act, the operation of Chapter 2M of the Act is modified in accordance with this Part.

REGULATION 2M.6.03  

2M.6.03   FINANCIAL REPORTING - AUSTRALIAN BANKS AND LIFE OFFICES  
(Omitted by SLI 2007 No 194, Sch 1[1] (effective 30 June 2007).)

REGULATION 2M.6.04  

2M.6.04   ANNUAL FINANCIAL REPORTS - LISTED COMPANIES  
(Omitted by SLI 2007 No 193, Sch 1[2] (effective 30 June 2007).)

REGULATION 2M.6.05  

2M.6.05   CONDUCT OF AUDITOR - RELEVANT RELATIONSHIPS  

The operation of Chapter 2M of the Act in relation to:

(a) all companies; and

(b) all registered schemes; and

(c) all disclosing entities;

is modified as set out in Schedule 5C.

CHAPTER 2N - UPDATING ASIC INFORMATION ABOUT COMPANIES AND REGISTERED SCHEMES  

PART 2N.2 - EXTRACT OF PARTICULARS  

REGULATION 2N.2.01   PARTICULARS ASIC MAY REQUIRE IN AN EXTRACT OF PARTICULARS (ACT s 346B)  

Particulars for a company

2N.2.01(1)    

For the purposes of section 346B of the Act, the following particulars are prescribed for a company (other than a CCIV):

(a)    ACN;

(b)    name;

(c)    address of registered office;

(d)    address of principal place of business in this jurisdiction;

(e)    for each director and company secretary:

(i) the person's name; and

(ii) the person's usual residential address, or, if the person is entitled to have an alternative address under subsection 205D(2) of the Act, that alternative address; and

(iii) the person's date and place of birth;

(f)    the date of appointment or cessation of each director, secretary or alternate director;

(g)    for issued shares - the classes into which the shares are divided, and for each class of share issued:

(i) the number of shares in the class; and

(ii) the total amount paid up for the class; and

(iii) the total amount unpaid for the class;

(h)    

for a proprietary company - the names and addresses of:

(i) if the company has 20 or fewer members - all members; or

(ii) if the company has more than 20 members - the top 20 members in each class;

(i)    

for a proprietary company that has a share capital:

(i) the total number of shares in each class held by each of the members mentioned in paragraph (h); and

(ii) whether or not the shares are fully paid; and

(iii) whether or not the shares are beneficially owned;

(j)    for the ultimate holding company - its name and either:

(i) its ACN or ARBN if registered in this jurisdiction; or

(ii) the place at which it was incorporated or formed if not registered in this jurisdiction.

Particulars for a CCIV

2N.2.01(1A)    

For the purposes of section 346B of the Act, the following particulars are prescribed for a CCIV:

(a)    ACN;

(b)    name;

(c)    address of registered office;

(d)    for the corporate director of the CCIV:

(i) the ACN of the corporate director; and

(ii) the name of the corporate director; and

(iii) the date of appointment of the corporate director;

(e)    for each sub-fund of the CCIV:

(i) the ARFN of the sub-fund; and

(ii) the name of the sub-fund;

(f)    for issued shares - the sub-funds to which the shares are referable, and for each sub-fund:

(i) the classes of shares referable to the sub-fund; and

(ii) the number of shares referable to the sub-fund in each of those classes; and

(iii) for each of those classes - the total amount paid up for shares referable to the sub-fund in the class; and

(iv) for each of those classes - the total amount unpaid for shares referable to the sub-fund in the class.

Particulars for a registered scheme

2N.2.01(2)    
For the purposes of section 346B of the Act, the following particulars are prescribed for a registered scheme:

(a)    ARSN;

(b)    name;

(c)    name and ACN of the responsible entity;

(d)    if the scheme is a managed investment scheme that is a unit trust:

(i) issued interests in the scheme; and

(ii) the classes into which the interests are divided; and

(iii) for each class of interest issued - the number of interests in the class, the total amount paid up for the class and the total amount unpaid for the class;

(e)    

if the scheme is a managed investment scheme that is not a unit trust:

(i)issued interests in the scheme; and

(ii) a description of the nature of the interests (for example, interest in a limited partnership, right to participate in a timesharing scheme); and

(iii) the number of the interests; and

(iv) the total amount paid for the interests; and

(v) the total amount unpaid for the interests.

Additional particulars for an Australian passport fund

2N.2.01(3)    
For the purposes of section 346B of the Act, the following particulars are prescribed for a registered scheme that is an Australian passport fund, in addition to the particulars prescribed for the scheme under subregulation (2):

(a)    the APFRN for the fund;

(b)    if the fund has or had a name in a participating economy (including Australia) that is different from its current name in Australia, then for each name that the fund has or had in a participating economy:

(i) that name; and

(ii) the name of each participating economy in which the fund has or had that name; and

(iii) for each such economy - the start date and (if applicable) the end date of each period during which the fund has or had that name in that economy.

Particulars for a notified foreign passport fund

2N.2.01(4)    
For the purposes of section 346B of the Act, the following particulars are prescribed for a notified foreign passport fund:

(a)    the NFPFRN for the fund and any other unique number for the fund allocated to the fund by ASIC;

(b)    the name of the fund;

(c)    the name of the home economy for the fund;

(d)    in relation to the operator of the fund:

(i) the name and ARBN of the operator; and

(ii) the name and address of each local agent of the operator; and

(iii) the address of the operator's registered office or principal place of business in its place of origin;

(e)    if the fund has or had a name in a participating economy (including Australia) that is different from its current name in Australia, then for each name that the fund has or had in a participating economy:

(i) that name; and

(ii) the name of each participating economy in which the fund has or had that name; and

(iii) for each such economy - the start date and (if applicable) the end date of each period during which the fund has or had that name in that economy.

2N.2.01(5)    
(Repealed by FRLI No F2023L01458, Sch 1[305] (effective 1 November 2023).)

PART 2N.4 - RETURN OF PARTICULARS  

REGULATION 2N.4.01   PARTICULARS ASIC MAY REQUIRE IN A RETURN OF PARTICULARS (ACT s 348B)  

Particulars for a company

2N.4.01(1)    

For the purposes of section 348B of the Act, the following particulars are prescribed for a company (other than a CCIV):

(a)    the personal details of a director, secretary or alternate director mentioned in subsection 205B(3) of the Act;

(b)    the date of appointment or cessation of a director, secretary or alternate director;

(c)    the date of change of name or change of address of a director, secretary or alternate director;

(d)    evidence that a specified person is (or is not) a director, secretary or alternate director;

(e)    completion of a declaration indicating that the company is a special purpose company within the meaning of regulation 3 of the Corporations (Review Fees) Regulations 2003;

(f)    the name of the ultimate holding company;

(g)    the date on which a company became, or ceased to be, the ultimate holding company;

(h)    the previous name, or the new name, of the ultimate holding company;

(i)    the date of issue, cancellation, or transfer of shares;

(j)    the date of any change to amounts paid on shares;

(k)    a statement of whether or not shares for one or more members are beneficially owned;

(l)    the date of any change to beneficial ownership of shares;

(m)    any of the following information from the share structure table for a class of share:

(i) the share class code;

(ii) the full title of the class of share;

(iii) the total number of shares in the class that have been issued;

(iv) the total amount paid for shares in the class;

(v) the total amount unpaid for shares in the class;

(n)    the date on which a new member's name was entered in the register of members;

(o)    a statement that the company is:

(i) a small proprietary company mentioned in subsection 45A(2) of the Act; or

(ii) a large proprietary company mentioned in subsection 45A(3) of the Act; or

(iii) a foreign controlled small proprietary company mentioned in paragraph 292(2)(b) of the Act;

(p)    a statement that the company is listed (or not listed) on a financial market, and the name of the financial market (if any);

(q)    a statement of whether the company complies with subsection 348C(2) or (3) of the Act;

(r)    information that the company is required to provide under subsection 142(2), 146(1), 205B(1) or (4), 254X(1) or 319(1) of the Act.

Particulars for a CCIV

2N.4.01(1A)    

For the purposes of section 348B of the Act, the following particulars are prescribed for a CCIV:

(a)    for the corporate director of the CCIV:

(i) the name of the corporate director; and

(ii) the address of the corporate director; and

(iii) the date of appointment or cessation of the corporate director; and

(iv) the date of change of name or change of address of the corporate director; and

(v) evidence that a specified person is (or is not) the corporate director;

(b)    the date on which a new member's name was entered in the register of members kept by the CCIV;

(c)    for each sub-fund of the CCIV:

(i) the date of issue, cancellation, or transfer of shares referable to the sub-fund; and

(ii) the classes of shares referable to the sub-fund; and

(iii) for each of those classes - the total number and value of shares referable to the sub-fund in the class; and

(iv) for each of those classes - the total amount paid up for shares referable to the sub-fund in the class; and

(v) for each of those classes - the total amount unpaid for shares referable to the sub-fund in the class;

(d)    

for each sub-fund of the CCIV - a statement that the sub-fund is listed (or not listed) and, if the sub-fund is listed, the name of the prescribed financial market for which the sub-fund or the CCIV is included in the official list;

(e)    for each financial year specified in the return of particulars for each sub-fund of a retail CCIV - the name of each auditor of a financial report for the sub-fund for that year;

(f)    for a retail CCIV - the name of the auditor of the compliance plan for the retail CCIV;

(g)    if a sub-fund of the CCIV is an Australian passport fund - the name of the implementation reviewer for the Australian passport fund for each review period for the Australian passport fund specified in the return of particulars.

Particulars for a registered scheme

2N.4.01(2)    
For the purposes of section 348B of the Act, the following particulars are prescribed for a registered scheme:

(a)    the date on which a new member's name was entered in the register of members;

(b)    the new name of the responsible entity of the scheme;

(c)    information that the scheme is required to provide under subsection 319(1) of the Act;

(d)    for each financial year for the scheme specified in the return of particulars - the name of each auditor of a financial report for the scheme for that year;

(e)    the name of the auditor of the compliance plan for the scheme;

(f)    if the scheme is an Australian passport fund - the name of the implementation reviewer for the fund for each review period for the fund specified in the return of particulars.

Particulars for a notified foreign passport fund

2N.4.01(3)    
For the purposes of section 348B of the Act, the following particulars are prescribed for a notified foreign passport fund:

(a)    the date on which a new member's name was entered in the register of members;

(b)    the new name of the operator of the fund;

(c)    information that the fund is required to provide under subsection 319(1AA) of the Act;

(d)    for each financial year for the fund specified in the return of particulars - the name of each auditor of a report for the fund for that year that is prepared in accordance with the financial reporting requirements applying to the fund under the Passport Rules for the home economy for the fund;

(e)    the name of the implementation reviewer for the fund for each review period for the fund specified in the return of particulars.

Definitions

2N.4.01(4)    
In this regulation:

implementation reviewer
, for a passport fund, has the same meaning as in the Passport Rules for this jurisdiction.

review period
, for a passport fund, has the meaning given by subsection 15(1) of the Passport Rules for this jurisdiction.

CHAPTER 5 - EXTERNAL ADMINISTRATION  

PART 5.1 - ARRANGEMENTS AND RECONSTRUCTIONS  

REGULATION 5.1.01   PRESCRIBED INFORMATION FOR PARAGRAPH 411(3)(b) AND SUBPARAGRAPH 412(1)(a)(ii) OF THE ACT  

5.1.01(1)   [Contents of explanatory statement]  

For paragraph 411(3)(b) and subparagraph 412(1)(a)(ii) of the Act, unless ASIC otherwise allows, the explanatory statement must:

(a) for a proposed arrangement between a Part 5.1 body and its creditors, or a class of its creditors:

(i) state the matters set out; and

(ii) have annexed to it the reports and copies of documents mentioned;

in Part 2 of Schedule 8; and

(b) for a proposed arrangement between a Part 5.1 body and its members, or a class of its members, other than a proposed arrangement mentioned in paragraph (c):

(i) state the matters set out; and

(ii) have annexed to it the reports and copies of documents mentioned;

in Part 3 of Schedule 8; and

(c) for a proposed arrangement between a Part 5.1 body and its members, or a class of its members, in relation to the reconstruction of a corporation, or the amalgamation of 2 or more corporations, if:

(i) the whole or part of the undertaking or of the property of a corporation is to be transferred to a trustee to be held beneficially on behalf of the unit holders of the trust; or

(ii) the shares in the corporation that are held by members are to be cancelled and control is to pass to a trustee to be held on behalf of a unit holder of the trust;

state the matters set out and have annexed to it the documents and, if the trustee of that business operates no other business in relation to that trust, the reports mentioned, in Part 4 of Schedule 8.

5.1.01(2)   [``securities exchange'']  

For the purposes of Schedule 8, securities exchange means Australian Stock Exchange Limited.

REGULATION 5.1.02  

5.1.02   GIVING NOTICE UNDER SUBSECTION 414(2) OR (9) OF THE ACT  
(Repealed by FRLI No F2023L01423, Sch 1[1] (effective 28 October 2023).)

REGULATION 5.1.50  

5.1.50   PRESCRIBED KINDS OF CONTRACTS, AGREEMENTS OR ARRANGEMENTS UNDER WHICH RIGHTS ARE NOT SUBJECT TO THE STAY IN SECTION 415D OF THE ACT  
For the purposes of subparagraph 415D(6)(b)(i) of the Act, each of the kinds of contracts, agreements or arrangements referred to in subregulation 5.3A.50(2) is prescribed.

PART 5.2 - RECEIVERS, AND OTHER CONTROLLERS, OF CORPORATIONS  

REGULATION 5.2.01  

5.2.01   CONTROLLER'S NOTICE TO OWNER OR LESSOR OF PROPERTY - HOW GIVEN  

A notice under subsection 419A(3) of the Act must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner's or lessor's usual place of residence or business or the place of residence or business last known to the controller.

REGULATION 5.2.02  

5.2.02   CERTIFIED COPIES OF REPORTS  

A copy of:

(a) a reportthat must be lodged; and

(b) a certificate or other document annexed to that report;

must be certified in writing to be a true copy by:

(c) for a copy lodged for paragraph 429(2)(c) of the Act - the controller of property of the corporation; or

(f) for a copy lodged for subsection 475(7) of the Act - by the liquidator or provisional liquidator of the company.

REGULATION 5.2.50  

5.2.50   PRESCRIBED KINDS OF CONTRACTS, AGREEMENTS OR ARRANGEMENTS UNDER WHICH RIGHTS ARE NOT SUBJECT TO THE STAY IN SECTION 434J OF THE ACT  
For the purposes of subparagraph 434J(5)(b)(i) of the Act, each of the kinds of contracts, agreements or arrangements referred to in subregulation 5.3A.50(2) is prescribed.

PART 5.3A - ADMINISTRATION OF A COMPANY'S AFFAIRS WITH A VIEW TO EXECUTING A DEED OF COMPANY ARRANGEMENT  

REGULATION 5.3A.01  

5.3A.01   ADMINISTRATOR'S NOTICE OF ENDING OF ADMINISTRATION  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[79] (effective 1 September 2017).)

REGULATION 5.3A.02  

5.3A.02   ADMINISTRATOR TO SPECIFY VOIDABLE TRANSACTIONS IN STATEMENT  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[79] (effective 1 September 2017).)

REGULATION 5.3A.03  

5.3A.03   ADMINISTRATOR TO LODGE NOTICE OF APPOINTMENT  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[79] (effective 1 September 2017).)

REGULATION 5.3A.03A   NOTICE OF FIRST MEETING OF CREDITORS  

5.3A.03A(1)    
This regulation is made for paragraph 436E(3)(b) of the Act.

5.3A.03A(2)    
The information about a meeting that is to be set out in a notice is at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(c) the ACN of thecompany;

(d) the section of the Act or, in the case of a combined notice, the sections of the Act under which the notice is being given;

(e) the time, date and place for the meeting;

(f) the purpose for which the meeting is being convened under that section;

(g) the time and date by which proofs of debt, and proxies for the meeting, are to be submitted;

(h) the name and contact details of the administrator;

(i) the date on which the administrator was appointed;

(j) the section of the Act under which the administrator was appointed.

REGULATION 5.3A.03AB  

5.3A.03AB   NOTICE OF MEETING TO DECIDE THE COMPANY'S FUTURE  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[81] (effective 1 September 2017).)

REGULATION 5.3A.04  

5.3A.04   NOTICE OF CHANGE OF ADMINISTRATOR'S ADDRESS  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[34] (effective 1 March 2017).)

REGULATION 5.3A.05  

5.3A.05   ADMINISTRATOR'S NOTICE TO OWNER OR LESSOR OF PROPERTY - HOW GIVEN  
A notice under subsection 443B(3) of the Act must be given to the owner or lessor, as the case may be, by personal delivery or by prepaid post to the owner's or lessor's usual place of residence or business or the place of residence or business last known to the administrator.

REGULATION 5.3A.06  

5.3A.06   PROVISIONS INCLUDED IN DEED OF COMPANY ARRANGEMENT  
For subsection 444A(5) of the Act, the prescribed provisions are those set out in Schedule 8A.

REGULATION 5.3A.06A   NOTICE OF RESOLUTION TO WIND UP VOLUNTARILY  

5.3A.06A(1)    
This regulation is made for paragraph 446A(5)(b) of the Act.

5.3A.06A(2)    

The notice must be published by the end of the next business day after a liquidator is appointed to administer the winding up of the company.

REGULATION 5.3A.06AB  

5.3A.06AB   NOTICE OF MEETING OF CREDITORS  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[83] (effective 1 September 2017).)

REGULATION 5.3A.07  

5.3A.07   ADMINISTRATOR BECOMES LIQUIDATOR - ADDITIONAL CASES  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[35] (effective 1 March 2017).)

REGULATION 5.3A.07A   NOTICE OF APPOINTMENT OF ADMINISTRATOR  

5.3A.07A(1)    
This regulation is made for paragraph 450A(1)(b) of the Act.

5.3A.07A(2)    
The information about an appointment that is to be set out in a notice is at least the following information:

(a) the name of the company;

(b) any trading name of the company;

(c) the ACN of the company;

(d) the section of the Act or, in the case of a combined notice, the sections of the Act under which the notice is being given;

(e) the name and contact details of the administrator;

(f) the date on which the administrator was appointed;

(g) the section of the Act under which the administrator was appointed.

5.3A.07A(3)    
The period within which the notice is to be published is 3 business days after an administrator is appointed.

REGULATION 5.3A.08  

5.3A.08   PUBLICATION OF NOTICE OF FAILURE TO EXECUTE INSTRUMENT OF TERMS OF DEED  
(Repealed by SLI 2007 No 325, Sch 1[2] (effective 31 December 2007).)

REGULATION 5.3A.09  

5.3A.09   PUBLICATION OF NOTICE OF TERMINATION OF DEED BY CREDITORS  
(Repealed by SLI 2007 No 325, Sch 1[2] (effective 31 December 2007).)

REGULATION 5.3A.50   PRESCRIBED KINDS OF CONTRACTS, AGREEMENTS OR ARRANGEMENTS UNDER WHICH RIGHTS ARE NOT SUBJECT TO THE STAY IN SECTION 451E OF THE ACT  

5.3A.50(1)    
For the purposes of subparagraph 451E(5)(b)(i) of the Act, each of the kinds of contracts, agreements or arrangements referred to in subregulation (2) is prescribed.

5.3A.50(2)    
The kinds of contracts, agreements or arrangements are as follows:

(a)    an agreement (within the meaning of the Convention defined in section 3 of the International Interests in Mobile Equipment (Cape Town Convention) Act 2013);

(b)    a contract, agreement or arrangement that is a licence, permit or approval issued by:

(i) the Commonwealth, a State or a Territory; or

(ii) an authority of the Commonwealth or of a State or a Territory; or

(iii) a local governing body established by or under a law of a State or Territory;

(c)    a contract, agreement or arrangement relating to Australia's national security, border protection or defence capability;

(d)    a contract, agreement or arrangement for the supply of goods or services to a public hospital or a public health service;

(e)    a contract, agreement or arrangement for the supply of goods or services by or on behalf of a public hospital or a public health service;

(f)    

a contract, agreement or arrangement for the supply of essential or critical goods or services to, or the carrying out of essential or critical works for:

(i) the Commonwealth, a State or a Territory; or

(ii) an authority of the Commonwealth or of a State or a Territory; or

(iii) a local governing body established by or under a law of a State or Territory; or

(iv) the public on behalf of an entity covered by subparagraph (i), (ii) or (iii);

Note: Examples of these essential or critical goods, services or works include public transport services, public security or safety services, and works affecting essential public infrastructure.

(g)    a contract, agreement or arrangement that is, or is directly connected with, a derivative;

(h)    a contract, agreement or arrangement that is, or is directly connected with, a securities financing transaction;

(i)    a contract, agreement or arrangement for the underwriting of an issue, or sale, of securities, financial products, bonds, promissory notes, or syndicated loans;

(j)    a contract, agreement or arrangement under which a party is or may be liable to subscribe for, or to procure subscribers for, securities, financial products, bonds, promissory notes, or syndicated loans;

(k)    a contract, agreement or arrangement that is, or governs, securities, financial products, bonds, promissory notes, or syndicated loans;

(l)    a contract, agreement or arrangement under which securities are offered, or may be offered, under a rights issue;

(m)    a contract, agreement or arrangement for the sale of all or part of a business, including by way of the sale of securities or financial products;

(n)    a contract, agreement or arrangement for the issue of an instrument that:

(i) is a security, financial product, bond, promissory note, or syndicated loan; and

(ii) belongs to a class of such instruments, each of which is fungible, and the first of which was issued before 1 July 2018;

(o)    

a contract, agreement or arrangement that is, or is directly connected with, a margin lending facility;

(p)    a contract, agreement or arrangement that is:

(i) a covered bond (within the meaning of the Banking Act 1959); or

(ii) for issuing such a bond; or

(iii) directly connected with such a bond or the issuing of such a bond;

(q)    a contract, agreement or arrangement providing for the management of financial investments;

(r)    a contract, agreement or arrangement that involves a special purpose vehicle, and that provides for securitisation or a public-private partnership;

(s)    a contract, agreement or arrangement that involves a special purpose vehicle, and that provides for a project finance arrangement under which:

(i) a financial accommodation is to be repaid or otherwise discharged primarily from the project's cash flow; and

(ii) all or substantially all of the project's assets, rights and interests are to be held as security for the financial accommodation;

(t)    a contract, agreement or arrangement for the keeping in escrow of:

(i) code, or passwords, for computer software; or

(ii) material directly associated with such code or passwords;

(u)    a contract, agreement or arrangement for the commercial charter of a ship if:

(i) the ship is not an Australian ship (within the meaning of the Shipping Registration Act 1981); and

(ii) the charter is by an Australian national (within the meaning of that Act) for the purposes of exporting goods from Australia, or from an external Territory, to another country;

(v)    a contract, agreement or arrangement under which the priority of security interests in particular property is changed or can change;

(w)    a contract, agreement or arrangement that is a flawed asset arrangement;

(x)    a contract, agreement or arrangement that is, or is directly connected with, a factoring arrangement (within the meaning of the ASIC Corporations (Factoring Arrangements) Instrument 2017/794);

(y)    a contract, agreement or arrangement that is the operating rules (other than the listing rules) of a financial market;

Note: The operating rules of a licensed market are a contract, see subsection 793B(1) of the Act.

(z)    a contract, agreement or arrangement that is the operating rules of a clearing and settlement facility;

Note: The operating rules of a licensed CS facility are a contract, see subsection 822B(1) of the Act.

(za)    a contract, agreement or arrangement that confers rights on the operator of a financial market, or the operator of a clearing and settlement facility, in relation to the operation of the market or facility;

(zb)    a contract, agreement or arrangement of which the parties include the Reserve Bank of Australia and the operator of a clearing and settlement facility;

(zc)    

a contract, agreement or arrangement under which participants in a clearing and settlement facility may settle obligations on behalf of other participants in the facility;

(zd)    a legally enforceable arrangement referred to in paragraph 9(1)(b) of the Payment Systems and Netting Act 1998 that supports an approved RTGS system (within the meaning of that Act);

Note: The arrangement includes the rules that are part of that arrangement.

(ze)    an approved netting arrangement (within the meaning of the Payment Systems and Netting Act 1998);

Note: The arrangement includes the rules that are part of that arrangement.

(zf)    a contract, agreement or arrangement that confers rights on:

(i) the operator of an approved RTGS system (within the meaning of the Payment Systems and Netting Act 1998); or

(ii) the coordinator of an approved netting arrangement (within the meaning of that Act);

in relation to the operation of that system or netting arrangement;

(zg)    a contract, agreement or arrangement under which the parties to an arrangement covered by paragraph (zd) or (ze) (the main arrangement ) may settle obligations on behalf of other parties to the main arrangement;

(zh)    a close-out netting contract (within the meaning of the Payment Systems and Netting Act 1998);

(zi)    a contract, agreement or arrangement under which security is given over financial property (within the meaning of the Payment Systems and Netting Act 1998) in respect of eligible obligations (within the meaning of that Act) of a party to a contract covered by paragraph (zh);

(zj)    a netting market (within the meaning of the Payment Systems and Netting Act 1998);

(zk)    a market netting contract (within the meaning of the Payment Systems and Netting Act 1998);

(zl)    a contract, agreement or arrangement under which security is given, in accordance with a market netting contract covered by paragraph (zk), in respect of obligations of a party to the market netting contract;

(zm)    a contract, agreement or arrangement that is an outsourcing arrangement for the purposes of Prudential Standard CPS 231 Outsourcing or Prudential Standard SPS 231 Outsourcing;

Note 1: In 2018, Prudential Standard CPS 231 Outsourcing was set out in the Banking, Insurance and Life Insurance (prudential standard) determination No. 6 of 2016.

Note 2: In 2018, Prudential Standard SPS 231 Outsourcing was set out in the Superannuation (prudential standard) determination No. 3 of 2012.

(zn)    a contract, agreement or arrangement entered into or renewed on or after 1 July 2018, but before 1 July 2023, as a result of either of the following:

(i) the novation of, or the assignment of one or more rights under, a contract, agreement or arrangement entered into before 1 July 2018;

(ii) a variation of a contract, agreement or arrangement entered into before 1 July 2018;

(zo)    

a contract, agreement or arrangement entered into on or after 1 July 2018, but before 1 July 2023, for the provision of any of the following kinds of work, goods or services for a particular project:

(i) building work (within the meaning of the Federal Safety Commissioner Act 2022);

(ii) work to be carried out anywhere in Australia that, if carried out in New South Wales, would be covered by paragraph 5(1)(d) or (f) of the Building and Construction Industry Security of Payment Act 1999 (NSW) and not be excluded by subsection 5(2) of that Act;

(iii) goods or services to be provided anywhere in Australia that, if provided in New South Wales, would be related goods and services (within the meaning of the Building and Construction Industry Security of Payment Act 1999 (NSW));

if the total payments under all contracts, agreements or arrangements for the project for work, goods or services of those kinds is at least $1 billion;

(zp)    a contract, agreement or arrangement that:

(i) is entered into to enable the satisfactory completion of a contract, agreement or arrangement covered by paragraph (zo); and

(ii) is for the provision of a kind of work, goods or services covered by that paragraph.

(zq)    

a contract, agreement or arrangement that is for reinsurance or retrocession.

PART 5.3B - RESTRUCTURING OF A COMPANY  

Division 1 - Preliminary  

REGULATION 5.3B.01  

5.3B.01   DEFINITIONS  

In this Part, unless the contrary intention appears:

accepted
, in relation to a proposal to make a restructuring plan, has the meaning given by subregulation 5.3B.25(1).

admissible debt or claim
, in relation to a company under restructuring or a company's restructuring plan, means a debt or claim that would be admissible to proof against the company under subsection 553(1) of the Act if:

(a) the company were wound up; and

(b) the relevant date were:

(i) if the company is under restructuring - the beginning of the restructuring; and

(ii) if the company has made a restructuring plan - the beginning of the restructuring that ended when the plan was made;

but does not include:

(c) the entitlements of an employee of the company; or

(d) a debt or claim that would be admissible to proof under subsection 553(1A) of the Act.

Note: Employee entitlements are defined in subsections 596AA(2) and (3) of the Act and include superannuation contributions payable by the company.

affected creditor
means:

(a) in relation to a proposal to vary or terminate a company's restructuring plan - a creditor of the company who is a party (as creditor) to the plan; or

(b) in relation to a proposal by a company to make a restructuring plan - a person who would be a party to the restructuring plan if it were made.

excluded creditor
, in relation to a company under restructuring, means a creditor of the company who:

(a) is the restructuring practitioner for the company; or

(b) was, at the time the restructuring began, a related creditor of the company; or

(c) was, on becoming an affected creditor, a related entity of the restructuring practitioner.

make
, in relation to a restructuring plan, has the meaning given by regulation 5.3B.26.

proposal period
, in relation to a company under restructuring, has the meaning given by regulation 5.3B.17.

propose
, in relation to a restructuring plan, has the meaning given by regulation 5.3B.14.

related creditor
of a company means a person who is a related entity, and a creditor, of the company.

restructuring proposal statement
means a statement made by a company under regulation 5.3B.16.

Division 2 - Restructuring  

Subdivision A - Restructuring generally  

REGULATION 5.3B.02   WHEN RESTRUCTURING ENDS  

5.3B.02(1)    
For the purposes of paragraph 453A(b) of the Act, the restructuring of a company ends if:

(a)    the company makes a declaration under subregulation (2); or

(b)    the company fails to propose a restructuring plan within the proposal period; or

(c)    the company's proposal to make a restructuring plan lapses under regulation 5.3B.20; or

(d)    the restructuring practitioner for the company terminates the restructuring under section 453J of the Act; or

(e)    the Court orders that the restructuring of the company is to end; or

(f)    an administrator of the company is appointed under section 436A, 436B or 436C of the Act; or

(g)    a liquidator or provisional liquidator of the company is appointed; or

(h) (Repealed)

(i) (Repealed)

(j)    the company makes a restructuring plan.

5.3B.02(2)    
The directors of a company under restructuring:

(a)    may make a declaration in writing that the restructuring of the company is to end on a specified day for any reason; and

(b)    must give a copy of the declaration to:

(i) the company's restructuring practitioner; and

(ii) the company's creditors;

before the day specified in the declaration.

REGULATION 5.3B.03   ELIGIBILITY CRITERIA FOR RESTRUCTURING  

5.3B.03(1)    

For the purposes of paragraph 453C(1)(a) of the Act, the test for eligibility is that on the day the restructuring begins the total liabilities of the company to pay any admissible debts and claims must not exceed $1 million.

5.3B.03(2)    
For the purposes of paragraph 453C(1)(b) of the Act, a period of 7 years is prescribed.

5.3B.03(3)    
For the purposes of paragraph 453C(1)(c) of the Act, a period of 7 years is prescribed.

5.3B.03(4)    
For the purposes of paragraph 453C(2)(b) of the Act, a prescribed circumstance is that:

(a)    the other company is a related body corporate of the company in relation to which the eligibility criteria are to be met; and

(b)    the other company is, or has been:

(i) under restructuring; or

(ii) the subject of a simplified liquidation process; and

(c)    if subparagraph (b)(i) applies - the restructuring practitioner for the other company was appointed no more than 20 business days before the day on which the restructuring of the company in relation to which the eligibility criteria are to be met began; and

(d)    if subparagraph (b)(ii) applies - the other company began to follow the simplified liquidation process no more than 20 business days before the day on which the restructuring of the company in relation to which the eligibility criteria are to be met began.

5.3B.03(5)    
(Repealed by FRLI No F2023L01458, Sch 1[81] (effective 1 November 2023).)

REGULATION 5.3B.04   TRANSACTIONS OR DEALINGS IN THE ORDINARY COURSE OF BUSINESS  

5.3B.04(1)    
For the purposes of subsection 453L(4) of the Act, this regulation prescribes the circumstances in which entering into a transaction or dealing by a company is to not be treated as in the ordinary course of the company's business.

5.3B.04(2)    
The circumstancesare as follows:

(a)    the transaction or dealing is for the purposes of satisfying an admissible debt or claim;

(b)    the transaction or dealing relates to the transfer or sale of the whole or a part of the business;

(c)    the transaction or dealing relates to the payment of a dividend.

REGULATION 5.3B.05   CONSENT TO TRANSACTIONS OR DEALINGS OUTSIDE THE ORDINARY COURSE OF BUSINESS  

5.3B.05(1)    
This regulation applies if the restructuring practitioner for a company under restructuring consents to a transaction or dealing under paragraph 453L(2)(b) of the Act.

5.3B.05(2)    
The consent must be given:

(a)    in writing; or

(b)    if the restructuring practitioner is satisfied that the delay caused by giving a written consent would not be in the best interests of the company's creditors as a whole - orally.

5.3B.05(3)    
If the consent is given in writing, the written consent must specify any conditions imposed on the consent.

5.3B.05(4)    
If the consent is given orally, the restructuring practitioner must, within 2 business days after the day on which the consent is given:

(a)    make a written record of the consent and any conditions imposed on the consent; and

(b)    provide a copy of the written record to the company.

5.3B.05(5)    
The restructuring practitioner must keep a record of the consent for 5 years after the day on which the consent is given.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

REGULATION 5.3B.06  

5.3B.06   TERMINATION OF RESTRUCTURING  

For the purposes of paragraph 453J(3)(b) of the Act, the following information is prescribed:

(a)    the following details about the company:

(i) the name of the company;

(ii) any trading name of the company;

(iii) the ACN of the company;

(iv) the address of the company's registered office;

(v) any website maintained by or on behalf of the company;

(vi) the company's email address (if any);

(b)    the following details about the restructuring practitioner:

(i) the restructuring practitioner's name;

(ii) the address and telephone number of the principal place where the restructuring practitioner practises as a registered liquidator;

(iii) if the restructuring practitioner practises as a registered liquidator as a member of a firm or under a name or style other than the person's own name - the name of that firm or the name or style under which the person practises;

(iv) the Registered Liquidator Number for the restructuring practitioner as specified on the Register of Liquidators;

(c)    the day on which the restructuring of the company began;

(d)    the day on which the notice is given to the company;

(e)    the reason for terminating the restructuring of the company;

(f)    the signature of the restructuring practitioner;

(g)    any other information that the restructuring practitioner considers appropriate.

Subdivision B - Restructuring practitioner for company under restructuring  

REGULATION 5.3B.07  

5.3B.07   AUTHORITY  

This Subdivision is made for the purposes of subsection 453E(2) of the Act.

REGULATION 5.3B.08  

5.3B.08   POWERS OF RESTRUCTURING PRACTITIONER FOR COMPANY UNDER RESTRUCTURING  

The restructuring practitioner for a company under restructuring has the power to investigate the company's business, property, affairs and financial circumstances for the purposes of:

(a)    preparing a declaration under regulation 5.3B.18; or

(b)    deciding whether to terminate the restructuring of the company; or

(c)    resolving a disagreement under regulation 5.3B.22; or

(d)    performing or exercising any other function, duty or power as restructuring practitioner for the company.

REGULATION 5.3B.09   REPLACEMENT RESTRUCTURING PRACTITIONER MUST FULFIL CERTAIN PAST REQUIREMENTS  

5.3B.09(1)    
This regulation applies in relation to a restructuring practitioner for a company (the replacement practitioner) who is appointed under subsection 456E(1) of the Act.

Replacement practitioner must resolve existing creditor disputes

5.3B.09(2)    
If:

(a)    before the appointment, a notice was given under subregulation 5.3B.22(2) to the restructuring practitioner for the company (the former practitioner ) setting out a creditor's disagreement with the schedule of debts and claims included with the company's restructuring proposal statement; and

(b)    at the time of the appointment, the former practitioner has not given notice under subregulation 5.3B.22(6) or (7) in relation to the disagreement;

the replacement practitioner must give the notice under subregulation 5.3B.22(6) or (7), as the case requires, as soon as practicable after the appointment.

Replacement practitioner must lodge outstanding notices etc.

5.3B.09(3)    
If:

(a)    before the appointment, a restructuring practitioner for the company was required to do a thing under Subdivision B or C of Division 5; and

(b)    at the time of the appointment, the thing has not been done;

the replacement practitioner must do the thing within 2 business days after the day on which the replacement practitioner is appointed.

REGULATION 5.3B.10  

5.3B.10   RESTRUCTURING PRACTITIONER HAS QUALIFIED PRIVILEGE  
(Repealed by FRLI No F2021L01847, Sch 1[11] (effective 21 December 2021).)

REGULATION 5.3B.11  

5.3B.11   PROTECTION FROM LIABILITY  

A person who is or has been the restructuring practitioner for a company under restructuring is not subject to any liability to any person in respect of anything done, or omitted to be done, in good faith and without negligence in the exercise or performance, or the purported exercise or performance, of powers, functions or duties under the Act or these regulations relating to the restructuring of the company.

Subdivision C - Stay on enforcing rights merely because the company is under restructuring etc.  

REGULATION 5.3B.12  

5.3B.12   PRESCRIBED KINDS OF CONTRACTS, AGREEMENTS OR ARRANGEMENTS UNDER WHICH RIGHTS ARE NOT SUBJECT TO THE STAY IN SECTION 454N OF THE ACT  

For the purposes of subparagraph 454N(5)(c)(i) of the Act, each of the kinds of contracts, agreements or arrangements referred to in subregulation 5.3A.50(2) is prescribed.

Division 3 - Restructuring plan  

Subdivision A - Preliminary  

REGULATION 5.3B.13  

5.3B.13   AUTHORITY  

Unless otherwise specified, this Division is made under section 455B of the Act.

Subdivision B - Proposing a restructuring plan  

REGULATION 5.3B.14   HOW A RESTRUCTURING PLAN IS PROPOSED  

5.3B.14(1)    
A company under restructuring proposes a restructuring plan if:

(a)    the company prepares:

(i) a restructuring plan that complies with the requirements in regulation 5.3B.15; and

(ii) a restructuring proposal statement that complies with the requirements in regulation 5.3B.16; and

(b)    the company executes the restructuring plan during the proposal period; and

(c)    the company's restructuring practitioner prepares and signs a declaration in accordance with regulation 5.3B.18; and

(d)    the restructuring practitioner gives a copy of the restructuring plan, restructuring proposal statement and declaration in accordance with subregulation 5.3B.21(1); and

(e)    immediately before the restructuring practitioner gives the copies in accordance with subregulation 5.3B.21(1), regulation 5.3B.24 is satisfied in relation to the company.

5.3B.14(2)    
For the purposes of subsection 455A(3) of the Act, the company is taken to have proposed the restructuring plan on the day the company's restructuring practitioner does the things mentioned in paragraph (1)(d).

REGULATION 5.3B.15   CONTENTS OF RESTRUCTURING PLAN  

5.3B.15(1)    
A company under restructuring must prepare a restructuring plan that complies with the requirements of this regulation.

5.3B.15(2)    
The restructuring plan must:

(a)    be in the form approved under regulation 5.3B.65 (if any); and

(b)    identify the company's property that is to be dealt with; and

(c)    specify how the property is to be dealt with; and

(d)    provide for the remuneration of the restructuring practitioner for the plan; and

(e)    specify the date on which the restructuring plan was executed.

5.3B.15(3)    
The restructuring plan may:

(a)    authorise the restructuring practitioner for the plan to deal with the identified property in the way specified in the plan; and

(aa)    

provide that, when performing a function or duty, or exercising a power, as restructuring practitioner for the plan, the restructuring practitioner is taken to act as agent for and on behalf of the company; and

(b)    provide for any matter relating to the company's financial affairs; and

(c)    be expressed to be conditional on the occurrence of a specified event within a specified period of no longer than 10 business days after the day on which the proposal to make the restructuring plan is accepted.

5.3B.15(4)    
The restructuring plan must not:

(a)    provide for the transfer of property (other than money) to a creditor; or

(b)    provide for the company to make payments under the plan, in respect of an admissible debt or claim, after 3 years beginning on the day the plan is made.

REGULATION 5.3B.16   RESTRUCTURING PROPOSAL STATEMENT  

5.3B.16(1)    
A restructuring plan must be accompanied by a restructuring proposal statement.

5.3B.16(2)    
The restructuring proposal statement must:

(a)    include a schedule of debts and claims; and

(b)    be in the form approved under regulation 5.3B.65 (if any); and

(c)    contain such information as the form requires.

REGULATION 5.3B.17   MEANING OF PROPOSAL PERIOD  

5.3B.17(1)    
The proposal period , in relation to a company that is under restructuring, is the period of 20 business days beginning on the day the restructuring begins.

Restructuring practitioner may extend proposal period

5.3B.17(2)    
The company's restructuring practitioner may, on application by the company, extend the proposal period by no more than 10 business days if the restructuring practitioner is satisfied on reasonable grounds that requiring the company to give a restructuring plan within the proposal period would not be reasonable in the circumstances.

5.3B.17(3)    
The restructuring practitioner may not extend the proposal period more than once under subregulation (2).

Court may extend proposal period

5.3B.17(4)    
The Court may, on application by the company, order an extension of the proposal period.

Notification of extension

5.3B.17(5)    
Within 2 business days after the day on which the proposal period is extended under subregulation (2) or (4), the restructuring practitioner must:

(a)    lodge with ASIC notice of the extension:

(i) in the prescribed form (if any); and

(ii) in accordance with subregulation 5.6.75(4); and

(b)    give a copy of the notice to as many of the company's creditors as reasonably practicable.

REGULATION 5.3B.18   RESTRUCTURING PRACTITIONER MUST MAKE DECLARATION IN RELATION TO RESTRUCTURING PLAN  

5.3B.18(1)    
As soon as practicable after a company executes a restructuring plan, the company's restructuring practitioner must make a declaration in accordance with this regulation.

5.3B.18(2)    
The declaration must:

(a)    if the restructuring practitioner believes on reasonable grounds that:

(i) the eligibility criteria for restructuring are met in relation to the company; and

(ii) if the restructuring plan is made, the company is likely to be able to discharge the obligations created by the plan as and when they become due and payable;

state that; and

(b)    if the restructuring practitioner believes on reasonable grounds that all information required to be set out in the company's restructuring proposal statement has been set out in that statement - state that; and

(c)    if the restructuring practitioner does not believe on reasonable grounds a matter mentioned in paragraph (a) or (b) - identify the matter in relation to which a belief on reasonable grounds could not be formed and set out the reasons for that conclusion; and

(d)    if, at the time a person became an affected creditor, the person was a related entity of the restructuring practitioner - specify the name of the affected creditor and the nature of the relationship between the affected creditor and the restructuring practitioner.

Note: A declaration must not be false or misleading in a material particular, or omit anything that would render it materially false or misleading: see section 1308 of the Act.

5.3B.18(3)    
The declaration must be signed by the restructuring practitioner.

Offence

5.3B.18(4)    
The restructuring practitioner for a company commits an offence if:

(a)    the restructuring practitioner prepares a declaration under this regulation; and

(b)    the restructuring practitioner does not:

(i) make reasonable inquiries into the company's business, property, affairs and financial circumstances; or

(ii) take reasonable steps to verify the company's business, property, affairs and financial circumstances;

for the purpose of assessing the accuracy and completeness of the information provided by the company in the restructuring plan and restructuring proposal statement.

Penalty: 50 penalty units.

5.3B.18(5)    
An offence based on subregulation (4) is an offence of strict liability.

REGULATION 5.3B.19   RESTRUCTURING PRACTITIONER MUST NOTIFY COMPANY OF DEFECT IN RESTRUCTURING PLAN  

5.3B.19(1)    
The restructuring practitioner for a company under restructuring commits an offence if:

(a)    at any time before the restructuring practitioner prepares a declaration under regulation 5.3B.18 in relation to the company's restructuring plan:

(i) the restructuring practitioner becomes aware that the information in the plan, or in the restructuring proposal statement that accompanies the plan, is incomplete or inaccurate; and

(ii) the restructuring practitioner has reasonable grounds to believe that, if the plan is made, the matter to which the incompleteness or inaccuracy relates is likely to affect the company's ability to meet its obligations under the plan; and

(b)    the restructuring practitioner does not, as soon as practicable after becoming so aware:

(i) notify the company of the incompleteness or inaccuracy; and

(ii) provide an opportunity for the company to address the incompleteness or inaccuracy.

Penalty: 50 penalty units.

5.3B.19(2)    
An offence based on subregulation (1) is an offence of strict liability.

REGULATION 5.3B.20   PROPOSAL TO MAKE RESTRUCTURING PLAN LAPSES  

5.3B.20(1)    
A company's proposal to make a restructuring plan lapses if:

(a)    the restructuring plan is not accepted in accordance with subregulation 5.3B.25(1); or

(b)    the company's restructuring practitioner cancels the proposal to make the plan in accordance with subregulation (2).

5.3B.20(2)    
The restructuring practitioner for a company may cancel the company's proposal to make a restructuring plan if, before the restructuring plan is made, the restructuring practitioner:

(a)    becomes aware that the information in the plan is incomplete or inaccurate, and has reasonable grounds to believe that, if the plan is made, the matter to which the incompleteness or inaccuracy relates is likely to affect the company's ability to meet its obligations under the plan; or

(b)    becomes aware that one or more affected creditors were not disclosed in the company's restructuring proposal statement; or

(c)    becomes aware that the company's restructuring proposal statement was deficient because it omitted a material particular or because it was incorrect in a material particular; or

(d)    becomes aware of a material change in the company's circumstances that:

(i) was not foreshadowed in the company's restructuring proposal statement; and

(ii) in the opinion of the restructuring practitioner, is capable of affecting an affected creditor's decision whether or not to accept the restructuring plan.

REGULATION 5.3B.21   PROPOSING A RESTRUCTURING PLAN TO CREDITORS  

5.3B.21(1)    
As soon as practicable after a company executes a restructuring plan, the restructuring practitioner for the company must do the following:

(a)    give to as many of the company's affected creditors as reasonably practicable a copy of:

(i) the company's restructuring plan; and

(ii) the restructuring plan standard terms; and

(iii) the company's restructuring proposal statement; and

(iv) the declaration prepared by the restructuring practitioner under regulation 5.3B.18;

(b)    ask each affected creditor to:

(i) give a written statement setting out whether or not the restructuring plan should be accepted; and

(ii) if the creditor agrees with the company's assessment of the amount of the creditor's admissible debts or claims - verify the creditor's admissible debts or claims as set out in the schedule of debts and claims included with the restructuring proposal statement; and

(iii) if the creditor disagrees with the company's assessment of the amount of the creditor's admissible debts or claims - notify the restructuring practitioner in accordance with regulation 5.3B.22;

(c)    inform each affected creditor of the person to whom the statement should be given and of the need to give the statement before the end of the acceptance period.

5.3B.21(2)    
Paragraphs (1)(b) and (c) do not apply in relation to an excluded creditor.

Definitions

5.3B.21(3)    
In this regulation:

acceptance period
means:

(a) the period of 15 business days beginning on the day the company's restructuring practitioner gives documents in accordance with subregulation (1); or

(b) if creditors are given a notice under paragraph 5.3B.22(7)(d) - the longer of:

(i) the period of 15 business days beginning on the day the company's restructuring practitioner gives documents in accordance with subregulation (1) of this regulation; and

(ii) the period beginning on the day the company's restructuring practitioner gives documents in accordance with subregulation (1) of this regulation and ending on the last day of the period of 5 business days after the day on which the notice under paragraph 5.3B.22(7)(d) is given; or

(c) such other period as the Court orders under regulation 5.3B.60.

restructuring plan standard terms
means the terms specified in subregulation 5.3B.27(1).

REGULATION 5.3B.22   CREDITORS MAY DISPUTE SCHEDULE OF DEBTS AND CLAIMS BEFORE RESTRUCTURING PLAN IS MADE  

5.3B.22(1)    
This regulation applies in relation to a person if:

(a)    the person is a creditor of a company that is proposing to make a restructuring plan; and

(b)    the plan has not been made; and

(c)    the person disagrees with the schedule of debts and claims included with the company's restructuring proposal statement because:

(i) the person's admissible debts or claims are not specified; or

(ii) the company's assessment of the person's admissible debts or claims is incorrect; or

(iii) the person is incorrectly specified as an excluded creditor.

Creditor may notify restructuring practitioner of disagreement

5.3B.22(2)    
The person may give written notice of the disagreement to the company's restructuring practitioner.

5.3B.22(3)    
The notice:

(a)    may be given:

(i) if the person received a copy of the plan - within 5 business days after the day on which the person receives the plan; or

(ii) if the person otherwise became aware of the plan - within 5 business days after the day on which the person becomes so aware; or

(iii) after the period specified in subparagraph (i) or (ii), if the notice includes a statement setting out the person's reasons for not giving the notice within that period; and

(b)    if the disagreement relates to the person's admissible debts or claims:

(i) must include detailed particulars of the debt or claim sought to be proved; and

(ii) in the case of a debt, must include a statement of account; and

(iii) must specify the vouchers (if any) by which the statement can be substantiated; and

(c)    if the disagreement relates to the person's status as an excluded creditor - must include detail sufficient to resolve the disagreement.

5.3B.22(4)    
The restructuring practitioner may, after receiving the notice, request that the person or the directors of the company:

(a)    give the restructuring practitioner information about the company's business, property, affairs and financial circumstances; and

(b)    verify the information by statutory declaration.

Restructuring practitioner may refuse to consider disagreement

5.3B.22(5)    
If the notice is given after the period specified in subparagraph (3)(a)(i) or (ii), the restructuring practitioner may refuse to consider the disagreement if the restructuring practitioner is satisfied that the person did not take all reasonable steps to give notice within that period.

5.3B.22(6)    
If the restructuring practitioner refuses to consider the disagreement:

(a)    the restructuring practitioner is taken to have recommended that the schedule of debts and claims not be varied; and

(b)    the restructuring practitioner must give written notice to the company and the person setting out the restructuring practitioner's reasons for the refusal; and

(c)    subregulation (7) does not apply.

Restructuring practitioner must resolve disagreement as soon as practicable

5.3B.22(7)    
If:

(a)    a person gives notice under subregulation (2) of a disagreement to the restructuring practitioner for a company; and

(b)    the restructuring practitioner has not refused to consider the disagreement under subregulation (5);

the restructuring practitioner must:

(c)    give written notice to the company and the person:

(i) setting out the restructuring practitioner's recommendations for resolving the disagreement; and

(ii) giving reasons for the recommendations; and

(d)    if the restructuring practitioner recommends that the schedule of debts and claims be varied and is of the opinion that the variation is significant - give written notice to the company and as many of the company's creditors as reasonably practicable:

(i) stating that fact; and

(ii) outlining the creditors' rights under regulation 5.3B.23.

5.3B.22(8)    
If the restructuring practitioner recommends that the schedule of debts and claims be varied, the company must vary the schedule in accordance with the recommendation as soon as practicable.

REGULATION 5.3B.23   CREDITORS MAY CHANGE VOTE  

5.3B.23(1)    
This regulation applies if:

(a)    a company proposes to make a restructuring plan; and

(b)    an affected creditor of the company gave a statement under paragraph 5.3B.21(1)(b) in relation to the plan.

5.3B.23(2)    
At any time before the end of the acceptance period, the creditor may:

(a)    withdraw the statement; and

(b)    give a new statement under paragraph 5.3B.21(1)(b) in relation to the plan.

5.3B.23(3)    
A statement may be withdrawn, and a new statement may be given, more than once before the end of the acceptance period.

Definitions

5.3B.23(4)    
In this regulation:

acceptance period
has the same meaning as in subregulation 5.3B.21(3).

REGULATION 5.3B.24  

5.3B.24   COMPANY UNDER RESTRUCTURING MUST DO CERTAIN THINGS  

This regulation is satisfied in relation to a company under restructuring if:

(a)    the company has:

(i) paid the entitlements of its employees that are payable; and

(ii) given returns, notices, statements, applications or other documents as required by taxation laws (within the meaning of the Income Tax Assessment Act 1997); or

(b)    the company is substantially complying with the matter concerned.

Note: Employee entitlements are defined in subsections 596AA(2) and (3) of the Act and include superannuation contributions payable by the company.

Subdivision C - Accepting a proposal for a restructuring plan  

REGULATION 5.3B.25   ACCEPTANCE OF RESTRUCTURING PLAN  

When restructuring plan is accepted

5.3B.25(1)    
A company's restructuring plan is accepted if, at the end of the last day of the acceptance period, the majority in value of those creditors from whom the restructuring practitioner for the plan has received a statement under paragraph 5.3B.21(1)(b) stated that the restructuring plan should be accepted.

5.3B.25(2)    
For the purposes of subregulation (1):

(a)    the value of an affected creditor is to be worked out:

(i) by reference to the value of the creditor's admissible debts or claims that are known at the time the restructuring began; or

(ii) if a person is an affected creditor because the person purchased another creditor's admissible debts or claims - by reference to the value of the purchase price; and

(b)    where there have been mutual credits, mutual debts or other mutual dealings between the company and an affected creditor:

(i) an account is to be taken of what is due from the one party to the other in respect of those mutual dealings; and

(ii) the sum due from the one party is to be set off against any sum due from the other party; and

(iii) the value of the affected creditor is to be worked out only by reference to the balance of the account; and

(c)    disregard an affected creditor who is an excluded creditor.

Note: For the purposes of subparagraph (a)(ii), the purchase price would normally be the price stated in the contract for the purchase of the admissible debt or claim. However, if the amount paid by the person is different from the price stated in the contract, then the purchase price would be the amount that was actually paid.

Offence

5.3B.25(3)    
A person commits an offence if:

(a)    the person gives, or agrees or offers to give, to an affected creditor any valuable consideration; and

(b)    the person does so with the intention of securing the affected creditor's acceptance or non-acceptance of the restructuring plan.

Penalty: 50 penalty units.

5.3B.25(4)    
(Repealed by FRLI No F2022L01627, Sch 1[16] (effective 13 December 2022).)

Definitions

5.3B.25(5)    
In this regulation:

acceptance period
has the same meaning as in subregulation 5.3B.21(3).

REGULATION 5.3B.26   HOW A RESTRUCTURING PLAN IS MADE  

5.3B.26(1)    
If a company's proposal to make a restructuring plan is accepted in accordance with regulation 5.3B.25, the company is taken to have made the restructuring plan.

5.3B.26(2)    
The restructuring plan is taken to have been made :

(a)    if the plan is expressed to be conditional on the occurrence of a specified event within a specified period and the event occurs within that period - on the day after the end of that period; and

(b)    otherwise - on the day after the end of the acceptance period.

5.3B.26(3)    
A restructuring plan that has been made has the same force and validity as if it were a deed executed by each of the parties to the plan.

Definitions

5.3B.26(4)    
In this regulation:

acceptance period
has the same meaning as in subregulation 5.3B.21(3).

REGULATION 5.3B.27   STANDARD TERMS FOR RESTRUCTURING PLANS  

5.3B.27(1)    
A restructuring plan made by a company is taken to include all of the following terms:

(a)    all admissible debts and claims rank equally;

(b)    if the total amount paid by the company under the plan in respect of those debts or claims is insufficient to meet those debts or claims in full, those debts or claims will be paid proportionately;

(c)    a creditor is not entitled to receive, in respect of an admissible debt or claim, more than the amount of the debt or claim;

(d)    the amount of an admissible debt or claim will be ascertained as at the time immediately before the restructuring began;

(e)    if a creditor is a secured creditor:

(i) if the creditor does not realise the creditor's security interest while the plan is in force, the creditor is taken, for the purposes of working out the amount payable to the creditor under the plan, to be a creditor only to the extent (if any) by which the amount of the creditor's admissible debt or claim exceeds the value of the creditor's security interest; and

(ii) if the creditor realises the creditor's security interest while the plan is in force, the creditor is taken, for the purposes of working out the amount payable to the creditor under the plan, to be a creditor only to the extent of any balance due to the creditor after deducting the net amount realised.

5.3B.27(2)    
A restructuring plan is void to the extent that it is inconsistent with any of the matters set out in subregulation (1).

REGULATION 5.3B.28  

5.3B.28   PARTIES TO RESTRUCTURING PLAN  

The parties to a restructuring plan are:

(a)    the company to which the plan relates; and

(b)    any person who has an admissible debt or claim in relation to the plan.

REGULATION 5.3B.29   EFFECT OF RESTRUCTURING PLAN  

5.3B.29(1)    
This regulation applies on and after the day on which a restructuring plan is made in relation to a company.

5.3B.29(2)    
The plan is binding on:

(a)    subject to subregulations (3) and (4) - a creditor of the company to the extent that the creditor has an admissible debt or claim in relation to the plan; and

(b)    the company; and

(c)    the company's officers and members; and

(d)    the restructuring practitioner for the plan.

5.3B.29(3)    
If a creditor of the company is a secured creditor, the plan is binding on the creditor:

(a)    if the value of the creditor's security interest is less than the value of the creditor's admissible debts or claims - only to the extent of the difference between the values; and

(b)    if the value of the creditor's security interest is equal to or more than the value of the creditor's admissible debts or claims - only to the extent that the creditor consents to be bound by the plan.

5.3B.29(4)    
The fact that a restructuring plan has been made does not prevent a secured creditor from realising or otherwise dealing with the security interest, unless:

(a)    the secured creditor accepted the proposal to make the plan and the plan prevents the secured creditor from doing so; or

(b)    the Court so orders under subregulation 5.3B.64(2).

5.3B.29(5)    
The fact that a restructuring plan has been made does not affect a right that an owner or lessor of property has in relation to that property, unless:

(a)    the owner or lessor accepted the proposal to make the plan and the plan affects that right; or

(b)    the Court so orders under subregulation 5.3B.64(4).

5.3B.29(6)    
Subregulation (5) does not apply in relation to an owner or lessor of PPSA retention of title property of the company.

Note: Subregulation (3) applies in relation to an owner or lessor of PPSA retention of title property of the company. Such an owner or lessor is a secured creditor of the company (see section 51F of the Act (meaning of PPSA retention of title property )).

REGULATION 5.3B.30   PROTECTION OF COMPANY'S PROPERTY FROM PERSONS BOUND BY RESTRUCTURING PLAN  

5.3B.30(1)    
Until a restructuring plan terminates, this regulation applies to a person bound by the plan.

5.3B.30(2)    
A person bound by the plan cannot:

(a)    make an application for an order to wind up the company on the basis of an admissible debt or claim; or

(b)    proceed with such an application made before the plan became binding on the person.

5.3B.30(3)    
A person bound by the plan cannot:

(a)    begin or proceed with a proceeding against the company or in relation to any of its property to recover an admissible debt or claim; or

(b)    begin or proceed with an enforcement process in relation to property of the company to recover an admissible debt or claim;

except:

(c)    with the leave of the Court; and

(d)    in accordance with such terms (if any) as the Court imposes.

5.3B.30(4)    
(Repealed by FRLI No F2023L01458, Sch 1[77] (effective 1 November 2023).)

REGULATION 5.3B.31   WHEN RESTRUCTURING PLAN TERMINATES  

5.3B.31(1)    
A company's restructuring plan terminates:

(a)    on the day on which all of the following conditions are satisfied:

(i) the company's obligations under the plan have been fulfilled;

(ii) the obligations of any other party to the plan have been fulfilled;

(iii) all admissible debts or claims have been dealt with in accordance with the plan; or

(b)    if the Court makes an order under regulation 5.3B.63 terminating the plan - on the day the Court determines and specifies in the order; or

(c)    if both of the following conditions are satisfied:

(i) the plan is expressed to be subject to the occurrence of a specified event within a specified period of no longer than 10 business days after the day on which the plan is made;

(ii) the event does not occur within that period;

on the next business day after the end of that period; or

(d)    if both of the following conditions are satisfied:

(i) there has been a contravention of the plan by a person bound by the plan;

(ii) the contravention has not been rectified within the period of 30 business days beginning on the day the contravention occurred;

on the next business day after the end of that period; or

(e)    on the day on which an administrator of the company is appointed under section 436A, 436B or 436C of the Act; or

(f)    on the day on which a liquidator or provisional liquidator of the company is appointed;

whichever happens first.

5.3B.31(2)    
If a company's restructuring plan terminates because of the happening of the event mentioned in paragraph (1)(a):

(a)    the company is entitled to any property that was subject to the plan but that was not required by the plan to be distributed to creditors; and

(b)    the company is released from all admissible debts or claims.

5.3B.31(3)    
If a company's restructuring plan terminates because of the happening of an event mentioned in paragraph (1)(b), (c), (d), (e) or (f), any admissible debt or claim that has not been dealt with in accordance with the plan is taken to be due and payable on the business day after the day on which the termination occurs.

REGULATION 5.3B.32  

5.3B.32   EFFECT OF TERMINATION OR AVOIDANCE  

The termination or avoidance, in whole or in part, of a restructuring plan does not affect the validity of anything that was done in good faith under the plan by a person before the person had notice of the termination or avoidance.

Subdivision D - Restructuring practitioner for a restructuring plan  

REGULATION 5.3B.33  

5.3B.33   APPOINTMENT OF RESTRUCTURING PRACTITIONER FOR RESTRUCTURING PLAN  

If a company under restructuring makes a restructuring plan, the company's restructuring practitioner is to be the restructuring practitioner for the restructuring plan unless the company, by resolution of the board, appoints someone else to be the restructuring practitioner for the plan.

REGULATION 5.3B.34   VACANCY IN OFFICE OF RESTRUCTURING PRACTITIONER FOR RESTRUCTURING PLAN  

5.3B.34(1)    
Where the restructuring practitioner for a company's restructuring plan:

(a)    dies; or

(b)    becomes prohibited from acting as restructuring practitioner for the plan; or

(c)    resigns by notice in writing given to the company;

the appointer may appoint someone else as restructuring practitioner for the restructuring plan.

5.3B.34(2)    
In subregulation (1):

appointer
, in relation to the restructuring practitioner for a company's restructuring plan, means:

(a) if the restructuring practitioner was appointed by the Court under Division 90 of Schedule 2 to the Act (review of the external administration of a company) or subregulation (4) of this regulation - the Court; or

(b) the company.

5.3B.34(3)    
An appointment under subregulation (1) by the company must be made by resolution of the board.

5.3B.34(4)    
Where a company has made a restructuring plan, but for some reason no restructuring practitioner for the plan is acting, the Court may appoint a person as restructuring practitioner for the plan on the application of ASIC or of an officer, member or creditor of the company.

REGULATION 5.3B.35   DECLARATION BY NEW AND REPLACEMENT RESTRUCTURING PRACTITIONERS - RELEVANT RELATIONSHIPS  

5.3B.35(1)    
This regulation applies in relation to a person if:

(a) the person is the restructuring practitioner for a company's restructuring plan; and

(b) either:

(i) the person was not the company's restructuring practitioner immediately before the person was appointed as the restructuring practitioner for the plan; or

(ii) the person was appointed as the restructuring practitioner for the plan under subregulation 5.3B.34(1) otherwise than by the Court.

5.3B.35(2)    
As soon as practicable after being appointed, the person must make a declaration of relevant relationships.

Note: Failure to comply with this subregulation is an offence (see subsection 1311(1) of the Act).

5.3B.35(3)    
The person must give a copy of the declaration under subregulation (2) to as many of the company's creditors as reasonably practicable.

Note: Failure to comply with this subregulation is an offence (see subsection 1311(1) of the Act).

5.3B.35(4)    
As soon as practicable after making a declaration under subregulation (2), the person must lodge a copy of the declaration with ASIC.

Note: Failure to comply with this subregulation is an offence (see subsection 1311(1) of the Act).

5.3B.35(5)    
In a prosecution for an offence constituted by a failure to include a particular matter in a declaration under this regulation, it is a defence if the defendant proves that:

(a)    the defendant made reasonable enquiries; and

(b)    after making these enquiries, the defendant had no reasonable grounds for believing that the matter should have been included in the declaration.

REGULATION 5.3B.36   REPLACEMENT DECLARATIONS - RELEVANT RELATIONSHIPS  

5.3B.36(1)    
If:

(a)    at a particular time, the restructuring practitioner for a company's restructuring plan makes a declaration of relevant relationships under section 453D of the Act or regulation 5.3B.35; and

(b)    at a later time:

(i) the declaration has become out-of-date; or

(ii) the restructuring practitioner becomes aware of an error in the declaration;

the restructuring practitioner must, as soon as practicable, make a replacement declaration of relevant relationships.

Note: Failure to comply with this subregulation is an offence (see subsection 1311(1) of the Act).

5.3B.36(2)    
The restructuring practitioner must give a copy of the replacement declaration under subregulation (1) to as many of the company's creditors as reasonably practicable.

Note: Failure to comply with this subregulation is an offence (see subsection 1311(1) of the Act).

5.3B.36(3)    
As soon as practicable after making a replacement declaration under subregulation (1), the person must lodge a copy of the replacement declaration with ASIC.

Note: Failure to comply with this subregulation is an offence (see subsection 1311(1) of the Act).

5.3B.36(4)    
In a prosecution for an offence constituted by a failure to include a particular matter in a declaration under this regulation, it is a defence if the defendant proves that:

(a)    the defendant made reasonable enquiries; and

(b)    after making these enquiries, the defendant had no reasonable grounds for believing that the matter should have been included in the declaration.

REGULATION 5.3B.37  

5.3B.37   FUNCTIONS OF RESTRUCTURING PRACTITIONER FOR RESTRUCTURING PLAN  

The functions of the restructuring practitioner for a company's restructuring plan are:

(a)    to receive money from, and hold money on trust for, the company; and

(b)    to pay the money to creditors in accordance with the plan; and

(c)    if requested to do so by the company's directors:

(i) to realise the property of the company that is available to pay creditors in accordance with the plan; and

(ii) to distribute the proceeds of the realisation of the property among the creditors in accordance with the plan; and

(d)    to answer questions about the performance or exercise of any of the restructuring practitioner's functions and powers as restructuring practitioner for the plan; and

(e)    to do anything that is incidental to the performance or exercise of those functions and powers; and

(f)    to do anything else that is necessary or convenient for the purpose of administering the plan.

REGULATION 5.3B.38   REPLACEMENT RESTRUCTURING PRACTITIONER MUST LODGE OUTSTANDING NOTICES ETC.  

5.3B.38(1)    
This regulation applies in relation to a restructuring practitioner for a restructuring plan (the replacement practitioner ) who is appointed under subregulation 5.3B.34(1).

5.3B.38(2)    
If:

(a)    before the appointment, a restructuring practitioner for the plan was required to do a thing under:

(i) Division 4; or

(ii) Subdivision B or C of Division 5; and

(b)    at the time of the appointment, the thing has not been done;

the replacement practitioner must do the thing within:

(c)    2 business days after the day on which the replacement practitioner is appointed; or

(d)    if the requirement arose because the restructuring practitioner was given notice or became aware of a thing - within 2 business days after the day on which the replacement practitioner is given the notice or becomes so aware.

REGULATION 5.3B.39   WHEN RESTRUCTURING PRACTITIONER MAY DISPOSE OF ENCUMBERED PROPERTY  

5.3B.39(1)    
The restructuring practitioner for a company's restructuring plan must not dispose of:

(a)    property of the company that is subject to a security interest; or

(b)    property (other than PPSA retention of title property) that is used or occupied by, or is in the possession of, the company but of which someone else is the owner or lessor.

Note: PPSA retention of title property is subject to a PPSA security interest, and so is covered by paragraph (a) (see definition of PPSA retention of title property in section 51F of the Act).

5.3B.39(2)    
Subregulation (1) does not prevent a disposal:

(a)    in the ordinary course of the company's business; or

(b)    with the written consent of the secured party, owner or lessor, as the case may be; or

(c)    with the leave of the Court.

5.3B.39(3)    
The Court may only give leave under paragraph (2)(c) if satisfied that arrangements have been made to adequately protect the interests of the secured party, owner or lessor, as the case may be.

5.3B.39(4)    
If the restructuring practitioner proposes to dispose of property under paragraph (2)(a), the Court may, by order, direct the restructuring practitioner not to carry out that proposal.

5.3B.39(5)    
The Court may only make an order under subregulation (4) on the application of:

(a)    if paragraph (1)(a) applies - the secured party; or

(b)    if paragraph (1)(b) applies - the owner or lessor, as the case may be.

5.3B.39(6)    
The Court may only make an order under subregulation (4) if it is not satisfied that arrangements have been made to protect adequately the interests of the applicant for the order.

5.3B.39(7)    
If:

(a)    a company has made a restructuring plan that has not terminated; and

(b)    property of the company is subject to a security interest; and

(c)    the restructuring practitioner disposes of the property;

the disposal extinguishes the security interest.

5.3B.39(8)    
For the purposes of paragraph (2)(a), if:

(a)    property is used or occupied by, or is in the possession of, a company; and

(b)    another person is the owner of the property; and

(c)    either:

(i) the property is PPSA retention of title property; or

(ii) the property is subject to a retention of title clause under a contract; and

(d)    the owner demands the return of the property;

a disposal of the property that occurs after the demand is made does not mean that the disposal is not in the ordinary course of the company's business.

REGULATION 5.3B.40  

5.3B.40   RESTRUCTURING PRACTITIONER ACTS AS COMPANY'S AGENT  
(Repealed by FRLI No F2021L01847, Sch 1[13] (effective 21 December 2021).)

REGULATION 5.3B.41  

5.3B.41   RESTRUCTURING PRACTITIONER HAS QUALIFIED PRIVILEGE  
(Repealed by FRLI No F2021L01847, Sch 1[13] (effective 21 December 2021).)

REGULATION 5.3B.42  

5.3B.42   PROTECTION FROM LIABILITY  

A person who is or has been the restructuring practitioner for a company's restructuring plan is not subject to any liability to any person in respect of anything done, or omitted to be done, in good faith and without negligencein the exercise or performance, or the purported exercise or performance, of powers, functions or duties under the Act or these regulations relating to the plan.

REGULATION 5.3B.43  

5.3B.43   RIGHT OF INDEMNITY  

A person who is or has been the restructuring practitioner for a company's restructuring plan is entitled to be indemnified out of the company's property (other than any PPSA retention of title property subject to a PPSA security interest that is perfected within the meaning of the Personal Property Securities Act 2009) for:

(a)    any debts or liabilities incurred, or damages or losses sustained, in good faith and without negligence, by the restructuring practitioner:

(i) in the performance or purported performance of the restructuring practitioner's functions or duties; or

(ii) in the exercise or purported exercise of the restructuring practitioner's powers; and

(b)    the remuneration to which the restructuring practitioner is entitled under Insolvency Practice Rules made under Subdivision DA of Division 60 of Schedule 2 to the Act.

REGULATION 5.3B.44   RIGHT OF INDEMNITY HAS PRIORITY OVER OTHER DEBTS  

General rule

5.3B.44(1)    
Subject to section 556 of the Act, a right of indemnity under regulation 5.3B.43 has priority over:

(a)    all the company's unsecured debts; and

(b)    any debts of the company secured by a PPSA security interest in property of the company if, when the restructuring of the company begins, the security interest is vested in the company because of the operation of any of the following provisions:

(i) section 267 or 267A of the Personal Property Securities Act 2009 (property subject to unperfected security interests);

(ii) section 588FL of the Act (collateral not registered within time); and

(c)    subject otherwise to this section - debts of the company secured by a circulating security interest in property of the company.

Debts secured by circulating security interests - receiver appointed before the beginning of restructuring etc.

5.3B.44(2)    
A right of indemnity under regulation 5.3B.43 does not have priority over debts of the company that are secured by a circulating security interest in property of the company, except so far as the secured party agrees, if:

(a)    before the making of the restructuring plan, the secured party:

(i) appointed a receiver of property of the company under a power contained in an instrument relating to the security interest; or

(ii) obtained an order for the appointment of a receiver of property of the company for the purpose of enforcing the security interest; or

(iii) entered into possession, or assumed control, of property of the company for that purpose; or

(iv) appointed a person so as to enter into possession or assume control (whether as agent for the secured party or for the company); and

(b)    the receiver or person is still in office, or the secured party is still in possession or control of the property.

Debts secured by circulating security interests - receiver appointed after restructuring plan made etc.

5.3B.44(3)    
Subregulation (4) applies if:

(a)    debts of the company are secured by a circulating security interest in property of the company; and

(b)    after the company's restructuring plan is made, the secured party, consistently with Part 5.3B of the Act:

(i) appoints a receiver of property of the company under a power contained in an instrument relating to the security interest; or

(ii) obtains an order for the appointment of a receiver of property of the company for the purpose of enforcing the security interest; or

(iii) enters into possession, or assumes control, of property of the company for that purpose; or

(iv) appoints a person to enter into possession or assume control (whether as agent for the secured party or for the company).

5.3B.44(4)    
A right of indemnity of the restructuring practitioner under regulation 5.3B.43 has priority over those debts only in so far as it is a right of indemnity for debts incurred, or remuneration accruing, before written notice of the appointment, or of the entering into possession or assuming of control, as the case may be, was given to the restructuring practitioner.

Debts secured by circulating security interests - priority over right of indemnity in relation to repayment of money borrowed etc.

5.3B.44(5)    
A right of indemnity under regulation 5.3B.43 does not have priority over debts of the company that are secured by a circulating security interest in property of the company, except so far as the secured party consents in writing, to the extent that the right of indemnity relates to debts incurred for:

(a)    the repayment of money borrowed; or

(b)    interest in respect of money borrowed; or

(c)    borrowing costs.

REGULATION 5.3B.45   LIEN TO SECURE INDEMNITY  

5.3B.45(1)    
To secure a right of indemnity under regulation 5.3B.43, the restructuring practitioner has a lien on the company's property.

5.3B.45(2)    
A lien under subregulation (1) has priority over another security interest only in so far as the right of indemnity under regulation 5.3B.43 has priority over debts secured by the other security interest.

Division 4 - The restructuring practitioner  

REGULATION 5.3B.46  

5.3B.46   AUTHORITY  

This Division is made for the purposes of subsection 456G(1) of the Act.

REGULATION 5.3B.47   COMPANY MUST NOTIFY RESTRUCTURING PRACTITIONER OF CERTAIN MATTERS  

5.3B.47(1)    
The directors of a company that has made a restructuring plan that has not terminated must, within 2 business days after the day on which the directors become aware of the happening of an event mentioned in subregulation (4), give written notice of the event to the restructuring practitioner for the plan.

5.3B.47(2)    
The restructuring practitioner must, within 2 business days after the day on which the restructuring practitioner receives the notice:

(a)    lodge with ASIC notice in the prescribed form (if any) of the happening of the event; and

(b)    give a copy of the notice to as many of the company's creditors as reasonably practicable.

5.3B.47(3)    
If:

(a)    a restructuring practitioner for the plan (the replacement practitioner ) is appointed under subregulation 5.3B.34(1); and

(b)    at the time of the appointment, notice of the happening of the event has not been lodged or given in accordance with subregulation (2);

the directors must give written notice of the event to the replacement practitioner within 2 business days after the day on which the replacement practitioner is appointed.

5.3B.47(4)    
The events that must be notified are as follows:

(a)    an administrator of the company is appointed under section 436A, 436B or 436C of the Act;

(b)    a liquidator or provisional liquidator of the company is appointed.

Division 5 - Information, reports, documents etc.  

Subdivision A - Preliminary  

REGULATION 5.3B.48  

5.3B.48   AUTHORITY  

This Division is made for the purposes of section 457A of the Act.

Subdivision B - Information, reports, documents etc. during restructuring  

REGULATION 5.3B.49   DECLARATION BY DIRECTORS - ELIGIBILITY TO BE UNDER RESTRUCTURING AND OTHER MATTERS  

5.3B.49(1)    
Within 5 business days after the day on which the restructuring of a company begins or such longer period as the company's restructuring practitioner allows, the directors of the company must give to the restructuring practitioner a declaration in accordance with this regulation.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

5.3B.49(2)    
The declaration must:

(a)    be in the form approved under regulation 5.3B.65 (if any); and

(b)    state whether, in the directors' opinion, there are reasonable grounds to believe that the company has entered into a transaction that would be voidable under section 588FE of the Act if:

(i) the company were being wound up because the company had resolved by special resolution that it be wound up voluntarily; and

(ii) the resolution had been passed on the day on which the declaration is given; and

(iii) the company were under restructuring immediately before the company passed the resolution; and

(iv) the relation-back day were the day on which the restructuring of the company began;

other than a transaction that would be an unfair preference; and

(c)    state whether, in the directors' opinion, there are reasonable grounds to believe that the eligibility criteria for restructuring were met in relation to the company at the time the restructuring began, and set out the reasons for that opinion.

Note: A declaration must not be false or misleading in a material particular, or omit anything that would render it misleading in a material respect: see section 1308 of the Act.

5.3B.49(3)    
The declaration must be signed by each director of the company.

REGULATION 5.3B.50   NOTICE OF APPOINTMENT OF RESTRUCTURING PRACTITIONER FOR COMPANY  

5.3B.50(1)    
Within 1 business day after the day on which a restructuring practitioner for a company is appointed, the restructuring practitioner must lodge with ASIC notice of the appointment:

(a)    in the prescribed form (if any); and

(b)    in accordance with subregulation 5.6.75(4).

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

5.3B.50(2)    
Within 1 business day after the day on which a restructuring practitioner for a company is appointed, the restructuring practitioner must give information about the following to as many of the company's creditors as reasonably practicable:

(a)    the fact that the restructuring practitioner has been appointed in relation to the company;

(b)    the name of the company;

(c)    any trading name of the company;

(d)    the ACN of the company;

(e)    the name and contact details of the restructuring practitioner;

(f)    the date on which the restructuring practitioner was appointed;

(g)    the restructuring process and the process of making a restructuring plan, including:

(i) the proposal period in relation to the company; and

(ii) the amount of time in which an affected creditor may decide whether a proposed restructuring plan should be accepted; and

(iii) how an affected creditor may verify or dispute the creditor's admissible debts or claims;

(h)    how a person may obtain further information about the restructuring process and the process of making a restructuring plan;

(i)    the right of creditors to request information, reports and documents under sections 70-40 and 70-45 of Schedule 2 to the Act.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

REGULATION 5.3B.51  

5.3B.51   NOTICE OF TERMINATION OF APPOINTMENT OF RESTRUCTURING PRACTITIONER FOR COMPANY  

Within 2 business days after the day on which the appointment of a person as restructuring practitioner for a company terminates, notice in the prescribed form (if any) of the termination must be lodged with ASIC:

(a)    if the termination is because of the death of the person - by the company; and

(b)    otherwise - by the person.

REGULATION 5.3B.52  

5.3B.52   NOTICE OF RESTRUCTURING PLAN ETC. GIVEN TO AFFECTED CREDITORS  

Within 2 business days after the day on which the restructuring practitioner for a company gives, in accordance with subregulation 5.3B.21(1), a copy of:

(a)    the company's restructuring plan; and

(b)    the company's restructuring proposal statement; and

(c)    the declaration prepared by the restructuring practitioner under regulation 5.3B.18;

the restructuring practitioner must lodge with ASIC in the prescribed form (if any):

(d)    the plan; and

(e)    the restructuring proposal statement; and

(f)    the declaration.

REGULATION 5.3B.53  

5.3B.53   NOTICE OF END OF RESTRUCTURING  

If the restructuring of a company ends because of the happening of an event mentioned in subregulation 5.3B.02(1), the person who was the restructuring practitioner for the company immediately before the restructuring ended must, within 2 business days after the day on which the event happens:

(a)    lodge with ASIC notice in the prescribed form (if any) of:

(i) the ending of the restructuring; and

(ii) the reason for the ending; and

(b)    give a copy of the notice to as many of the company's creditors as reasonably practicable.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

Subdivision C - Information, reports, documents etc. once restructuring plan is made  

REGULATION 5.3B.54  

5.3B.54   NOTICE OF APPOINTMENT OF RESTRUCTURING PRACTITIONER FOR RESTRUCTURING PLAN  

Within 2 business days after the day on which a restructuring practitioner for a restructuring plan is appointed, the restructuring practitioner must lodge with ASIC notice of the appointment:

(a)    in the prescribed form (if any); and

(b)    in accordance with subregulation 5.6.75(4).

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

REGULATION 5.3B.55  

5.3B.55   NOTICE OF MAKING OF RESTRUCTURING PLAN  

If a company makes a restructuring plan, the restructuring practitioner for the plan must, within 2 business days after the day on which the plan is made:

(a)    give to as many of the company's creditors as reasonably practicable a written notice:

(i) stating that the plan has been made; and

(ii) specifying the day on which the plan was made; and

(b)    lodge with ASIC notice in the prescribed form (if any) of the making of the plan, including information about:

(i) the total value of the debts and claims set out in the schedule of debts and claims included with the company's restructuring proposal statement; and

(ii) the number of affected creditors to whom the restructuring practitioner gave a copy of the documents mentioned in paragraph 5.3B.21(1)(a); and

(iii) the proportion in value of affected creditors that gave, before the end of the acceptance period, a statement under paragraph 5.3B.21(1)(b) that the plan should be accepted.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

REGULATION 5.3B.56   NOTICE OF CONTRAVENTION OF RESTRUCTURING PLAN  

Director to notify restructuring practitioner

5.3B.56(1)    
If a director of a company that has made a restructuring plan becomes aware that:

(a)    there has been a contravention of the plan by a person bound by the plan (who may be the director); or

(b)    there is likely to be a contravention of the plan by a person bound by the plan (who may be the director);

the director must, within 2 business days after the day on which the director becomes aware of the contravention or likely contravention, give written notice of the contravention or likely contravention to the restructuring practitioner for the plan.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

Restructuring practitioner to notify company's creditors

5.3B.56(2)    
If the restructuring practitioner for a restructuring plan receives notice under subregulation (1), or otherwise becomes aware, that:

(a)    there has been a contravention of the plan by a person bound by the plan (who may be the restructuring practitioner); or

(b)    there is likely to be a contravention of the plan by a person bound by the plan (who may be the restructuring practitioner);

the restructuring practitioner must, within 2 business days after the day on which the restructuring practitioner receives the notice or becomes so aware:

(c)    lodge with ASIC notice in the prescribed form (if any) of the contravention or likely contravention; and

(d)    give a copy of the notice to as many of the company's creditors as reasonably practicable.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

REGULATION 5.3B.57   NOTICE OF TERMINATION OF RESTRUCTURING PLAN  

5.3B.57(1)    
If a company's restructuring plan terminates because of the happening of the event mentioned in paragraph 5.3B.31(1)(a):

(a)    the directors of the company must, within 2 business days after the day on which the directors become aware of the happening of the event, give written notice of the termination to the person (the former practitioner ) who was the restructuring practitioner for the plan immediately before the termination; and

(b)    the former practitioner must, within 2 business days after the day on which the former practitioner receives the notice:

(i) lodge with ASIC notice in the prescribed form (if any) of the termination; and

(ii) give a copy of the notice to as many of the company's creditors as reasonably practicable.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

5.3B.57(2)    
If a company's restructuring plan terminates because of the happening of an event mentioned in paragraph 5.3B.31(1)(b), (c), (d), (e) or (f):

(a)    the directors of the company must, within 2 business days after the day on which the directors become aware of the happening of the event, give written notice of the termination and the reason for the termination to the person (the former practitioner ) who was the restructuring practitioner for the plan immediately before the termination; and

(b)    the former practitioner must, within 2 business days after the day on which the former practitioner receives the notice:

(i) lodge with ASIC notice in the prescribed form (if any) of the termination and the reason for the termination; and

(ii) give a copy of the notice to as many of the company's creditors as reasonably practicable.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

REGULATION 5.3B.58  

5.3B.58   NOTICE OF TERMINATION OF APPOINTMENT OF RESTRUCTURING PRACTITIONER FOR RESTRUCTURING PLAN  

Within 2 business days after the day on which the appointment of a person as restructuring practitioner for a company's restructuring plan terminates, notice in the prescribed form (if any) of the termination must be lodged with ASIC:

(a)    if the termination is because of the death of the person - by the company; and

(b)    otherwise - by the person.

Division 6 - Powers of Court  

REGULATION 5.3B.59  

5.3B.59   AUTHORITY  

This Division is made for the purposes of subsection 458B(1) of the Act.

REGULATION 5.3B.60   COURT MAY MAKE ORDERS IN RELATION TO CREDITOR DISPUTES BEFORE RESTRUCTURING PLAN IS MADE  

5.3B.60(1)    
This regulation applies if:

(a)    a company proposes to make a restructuring plan; and

(b)    a person notifies the company's restructuring practitioner under subregulation 5.3B.22(2) that the person disagrees with the schedule of debts and claims included with the company's restructuring proposal statement; and

(c)    the restructuring practitioner:

(i) refuses to consider the disagreement under subregulation 5.3B.22(5); or

(ii) makes, or refuses to make, a recommendation under subregulation 5.3B.22(7) to vary the schedule of debts and claims.

5.3B.60(2)    
The Court may, on the application of the company or a creditor of the company, make one or more of the following orders:

(a)    that the restructuring practitioner consider the disagreement and make a recommendation in accordance with subregulation 5.3B.22(7);

(b)    that the schedule of debts and claims be varied as set out in the order;

(c)    that the acceptance period for the proposal to make the restructuring plan be extended.

5.3B.60(3)    
If the Court makes an order under subregulation (2), the restructuring practitioner must, within 2 business days after the day on which the order is made:

(a)    lodge with ASIC notice in the prescribed form (if any):

(i) setting out the terms of the order; and

(ii) outlining the creditors' rights under regulation 5.3B.23; and

(b)    give a copy of the notice to as many of the company's creditors as reasonably practicable.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

REGULATION5.3B.61   WHEN COURT MAY VARY RESTRUCTURING PLAN  

5.3B.61(1)    
A restructuring plan that has been made by a company must not be varied except in accordance with this regulation.

5.3B.61(2)    
The Court may make an order varying a restructuring plan:

(a)    on its own initiative; or

(b)    on the application of:

(i) the company; or

(ii) an affected creditor; or

(iii) the restructuring practitioner for the plan; or

(iv) ASIC.

REGULATION 5.3B.62   WHEN COURT MAY VOID OR VALIDATE RESTRUCTURING PLAN  

Voiding of restructuring plan

5.3B.62(1)    
The Court may make an order declaring that all or part of a company's restructuring plan is void if the Court is satisfied that:

(a)    there are reasonable grounds to believe that the plan, or a part of the plan, was not made in accordance with, or does not comply with, the Act or these regulations; or

(b)    the restructuring practitioner for the plan has committed a breach of duty in relation to the plan; or

(c)    the restructuring practitioner for the plan has breached a condition of the restructuring practitioner's registration as a liquidator; or

(d)    the restructuring practitioner for the plan has breached a condition imposed under section 20-35 of Schedule 2 to the Act, to the extent that the condition relates to restructuring plans.

5.3B.62(2)    
The Court may make any other order that it thinks appropriate in relation to the declaration.

Validity of plan despite contravention

5.3B.62(3)    
The Court may make an order declaring that all or part of a company's restructuring plan is valid, despite a contravention of a provision of the Act or these regulations, if the Court is satisfied that:

(a)    the provision was substantially complied with; and

(b)    no injustice will result for anyone bound by the plan if the contravention is disregarded.

Applications for orders under this regulation

5.3B.62(4)    
The Court may make an order under this regulation on the application of:

(a)    the company; or

(b)    an affected creditor; or

(c)    the company's restructuring practitioner; or

(d)    ASIC.

5.3B.62(5)    
However, an application for an order under this regulation must not be made if the plan has terminated because of paragraph 5.3B.31(1)(a).

REGULATION 5.3B.63   WHEN COURT MAY TERMINATE RESTRUCTURING PLAN  

5.3B.63(1)    
The Court may make an order terminating a company's restructuring plan if the Court is satisfied that:

(a)    information about the company's business, property, affairs or financial circumstances that:

(i) was false or misleading; and

(ii) can reasonably be expected to have been material to the affected creditors in deciding whether to accept the plan;

was contained in the plan or the restructuring proposal statement that accompanied the plan; or

(b)    there was an omission from the plan or statement and the omission can reasonably be expected to have been material to such creditors in so deciding; or

(c)    there has been a material contravention of the plan by a person bound by the plan; or

(d)    effect cannot be given to the plan without injustice or undue delay; or

(e)    the plan or a provision of it is, an act or omission done or made under the plan was, or an act or omission proposed to be so done or made would be contrary to the interests of the creditors of the company as a whole; or

(f)    the plan should be terminated for some other reason.

5.3B.63(2)    
The Court may make an order under this regulation:

(a)    on its own initiative; or

(b)    on the application of:

(i) the company; or

(ii) an affected creditor; or

(iii) the restructuring practitioner for the company or for the plan; or

(iv) ASIC.

REGULATION 5.3B.64   COURT MAY LIMIT RIGHTS OF SECURED CREDITOR OR OWNER OR LESSOR  

5.3B.64(1)    
This regulation applies where:

(a)    a company is under restructuring; or

(b)    a company makes a restructuring plan that has not terminated.

5.3B.64(2)    
Subject to subsection 454C(3) of the Act, the Court may order a secured creditor of the company not to realise or otherwise deal with the security interest, except as permitted by the order.

5.3B.64(3)    
The Court may only make an order under subregulation (2) if satisfied that:

(a)    for the creditor to realise or otherwise deal with the security interest would have a material adverse effect on achieving the purposes of the plan; and

(b)    having regard to:

(i) the terms of the plan; and

(ii) the terms of the order; and

(iii) any other relevant matter;

the creditor's interests will be adequately protected.

5.3B.64(4)    
The Court may order the owner or lessor of property that is used or occupied by, or is in the possession of, the company not to take possession of the property or otherwise recover it.

5.3B.64(5)    
Subregulation (4) does not apply in relation to PPSA retention of title property of the company.

5.3B.64(6)    
The Court may only make an order under subregulation (4) if satisfied that:

(a)    for the owner or lessor to take possession of the property or otherwise recover it would have a material adverse effect on achieving the purposes of the plan; and

(b)    having regard to:

(i) the terms of the plan; and

(ii) the terms of the order; and

(iii) any other relevant matter;

the interests of the owner or lessor will be adequately protected.

5.3B.64(7)    
An order under this regulation may be made subject to conditions.

5.3B.64(8)    
An order under this regulation may only be made on the application of:

(a)    if paragraph (1)(a) applies - the restructuring practitioner for the company; or

(b)    if paragraph (1)(b) applies - the restructuring practitioner for the plan.

Division 7 - Other matters  

REGULATION 5.3B.65  

5.3B.65   APPROVED FORMS  

ASIC may, in writing, approve a form for the purposes of a provision of this Part.

PART 5.4 - WINDING UP IN INSOLVENCY  

REGULATION 5.4.01AA  

5.4.01AA   TEMPORARY INCREASE TO THE STATUTORY MINIMUM AND STATUTORY PERIOD  
(Repealed)

REGULATION 5.4.01AAA   MEANING OF STATUTORY MINIMUM AND STATUTORY PERIOD - PRESCRIBED AMOUNTS  

5.4.01AAA(1)    
For the purposes of paragraph (a) of the definition of statutory minimum in section 9 of the Act, the amount prescribed is:

(a)    in relation to a company that is eligible for temporary restructuring relief - $20,000; and

(b)    

otherwise - $4,000.

5.4.01AAA(2)    
For the purposes of paragraph (a) of the definition of statutory period in section 9 of the Act, the period prescribed is:

(a)    in relation to a company that is eligible for temporary restructuring relief - 6 months; and

(b)    otherwise - 21 days.

5.4.01AAA(3)    

Paragraphs (1)(a) and (2)(a) do not apply in relation to statutory demands served on or after 1 August 2021.

REGULATION 5.4.01  

5.4.01   APPLICATION TO COURT FOR WINDING UP - PRESCRIBED AGENCY  
The Australian Prudential Regulation Authority is a prescribed agency for paragraph 459P(1)(g) of the Act.

REGULATION 5.4.01A   NOTICE OF APPLICATION TO WIND UP A COMPANY  

5.4.01A(1)    

This regulation is made for paragraph 465A(1)(c) of the Act.

5.4.01A(2)    
The information about an application that is to be set out in a notice is at least the following information:

(a)    

if the rules of court require particular information to be published for the application and the court has not dispensed with publication under the rules of court - that information;

(b)    

if the rules of court do not require particular information to be published, or the court has dispensed with publication under the rules of court:

(i) the name of the company; and

(ii) any trading name of the company; and

(iii) the ACN of the company; and

(iiia) if paragraph 465A(1)(c) of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act - the ARFN of the sub-fund; and

(iv) the date on which the application was filed; and

(v) the identifying number allocated by the court when the application was filed; and

(vi) the name of the applicant; and

(vii) the address for service of the applicant; and

(viii) the name and address of the court where the application will be heard; and

(ix) the time and date of the court hearing; and

(x) the way in which documents that are filed in relation to the application may be obtained.

Note: If paragraph 465A(1)(c) of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act, that section translates most of this sub-regulation's references to the company so that they are references to the sub-fund.

REGULATION 5.4.01B   NOTICE OF COURT-ORDERED WINDING UP  

5.4.01B(1)    
This regulation is made for the purposes of subsection 465A(2) of the Act.

5.4.01B(2)    
The information about an order by the Court that must be set out in a notice is at least the following information:

(a)    the Court that made the order;

(b)    the date the order was made;

(c)    the name of the liquidator appointed to administer the winding up;

(d)    the name of the company;

(e)    any business name of the company;

(f)    any ABN of the company;

(g)    any ACN of the company;

(h)    

if subsection 465A(2) of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act - the ARFN of the sub-fund.

Note: If subsection 465A(2) of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act, that section translates most of this sub-regulation's references to the company so that they are references to the sub-fund.

REGULATION 5.4.02  

5.4.02   COMPROMISE OF DEBT BY LIQUIDATOR - PRESCRIBED AMOUNT  

For paragraph 477(2A)(a) of the Act, the amount of $100,000 is prescribed.

PART 5.4C - WINDING UP BY ASIC  

REGULATION 5.4C.01   NOTICE OF INTENTION TO ORDER WINDING UP OF A COMPANY  

5.4C.01(1)    
For subparagraph 489EA(6)(b)(ii) of the Act, this regulation prescribes the manner of publishing notice of ASIC's intention to make an order under subsection 489EA(1), (2), (3) or (4) of the Act.

5.4C.01(2)    
Notice is to be published on the publication website, established under subsection 5.6.75(1), at least 10 business days before ASIC makes the order.

PART 5.5 - VOLUNTARY WINDING UP  

Division 1 - Resolution for winding up  

REGULATION 5.5.01   NOTICE OF RESOLUTION TO WIND UP VOLUNTARILY  

5.5.01(1)    
This regulation is made for paragraph 491(2)(b) of the Act.

5.5.01(2)    
The information about a resolution that is to be set out in a notice is at least the following information:

(a)    the name of the company;

(b)    

any business name of the company;

(c)    the ACN of the company;

(ca)    

if paragraph 491(2)(b) of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act - the ARFN of the sub-fund;

(d)    the section of the Act under which the notice is being given;

(e)    the name and contact details of the liquidator;

(f)    the date on which the resolution was passed.

5.5.01(3)    

The notice must be published by the end of the next business day after a liquidator is appointed to administer the winding up of the company.

Note: If paragraph 491(2)(b) of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act, that section translates most of this regulation's references to the company so that they are references to the sub-fund.

Division 2 - Simplified liquidation process  

Subdivision A - Preliminary  

REGULATION 5.5.02  

5.5.02   DECLARATION ABOUT ELIGIBILITY FOR SIMPLIFIED LIQUIDATION PROCESS AND OTHER MATTERS  

For the purposes of subsection 498(3) of the Act, the following information is prescribed:

(a)    whether, in the directors' opinion, there are reasonable grounds to believe that the company has entered into a transaction that would be voidable under section 588FE of the Act, other than a transaction that would be an unfair preference;

(b)    whether, in the directors' opinion, there are reasonable grounds to believe that, on the declaration being given, the eligibility criteria for the simplified liquidation process will be met in relation to the company, and the reasons for that opinion.

REGULATION 5.5.03   ELIGIBILITY CRITERIA FOR SIMPLIFIED LIQUIDATION PROCESS  

5.5.03(1)    
For the purposes of paragraph 500AA(1)(d) of the Act, the test for eligibility is that the total liabilities of the company on the day on which the triggering event occurred must not exceed $1 million.

5.5.03(2)    
For the purposes of paragraph 500AA(1)(e) of the Act, a period of 7 years is prescribed.

5.5.03(3)    
For the purposes of paragraph 500AA(1)(f) of the Act, a period of 7 years is prescribed.

5.5.03(4)    
For the purposes of paragraph 500AA(2)(b) of the Act, a prescribed circumstance is that:

(a)    the other company is a related body corporate of the company in relation to which the eligibility criteria are to be met; and

(b)    the other company is, or has been:

(i) under restructuring; or

(ii) the subject of a simplified liquidation process; and

(c)    if subparagraph (b)(i) applies - the restructuring practitioner for the other company was appointed no more than 20 business days before the day on which the company in relation to which the eligibility criteria are to be met began to follow the simplified liquidation process; and

(d)    if subparagraph (b)(ii) applies - the other company began to follow the simplified liquidation process no more than 20 business days before the day on which the company in relation to which the eligibility criteria are to be met began to follow the simplified liquidation process.

5.5.03(5)    
For the purposes of paragraph 500AA(2)(c) of the Act, a prescribed circumstance is that:

(a)    the company has been under restructuring; and

(b)    the restructuring terminated no more than 20 business days before the day on which the company began to follow the simplified liquidation process.

5.5.03(6)    
(Repealed by FRLI No F2023L01458, Sch 1[82] (effective 1 November 2023).)

Subdivision B - Simplified liquidation process  

REGULATION 5.5.04   TRANSACTIONS THAT ARE NOT VOIDABLE  

5.5.04(1)    
This regulation is made for the purposes of paragraph 500AE(3)(b) of the Act.

5.5.04(2)    
An unfair preference of a company is not voidable despite subsection 588FE(2) of the Act, provided either subregulation (3) or (4) is satisfied.

5.5.04(3)    
This subregulation is satisfied if:

(a)    the company is subject to the simplified liquidation process; and

(b)    the transaction was entered into, or an act was done for the purposes of giving effect to it, before the day that is 3 months before the relation-back day; and

(c)    no creditor under the transaction is a related entity of the company.

5.5.04(4)    
This subregulation is satisfied if:

(a)    the company is subject to the simplified liquidation process; and

(b)    the transaction was entered into, or an act was done for the purposes of giving effect to it:

(i) during the 3 months ending on the relation-back day; or

(ii) after that day but on or before the day when the winding up began; and

(c)    either:

(i) the transaction results in the creditor receiving from the company no more than $30,000 in value; or

(ii) if the transaction forms part of a series of related transactions, all of the related transactions result in the creditor receiving from the company no more than $30,000 in value; and

(d)    no creditor under the transaction is a related entity of the company.

REGULATION 5.5.05   REPORTS BY LIQUIDATOR  

5.5.05(1)    
This regulation is made for the purposes of paragraph 500AE(3)(f) of the Act and applies in relation to the liquidator of a company that is subject to the simplified liquidation process.

5.5.05(2)    
If, in the opinion of the liquidator, there are reasonable grounds to believe that:

(a)    a past or present officer or employee, or a member or contributory, of the company; or

(b)    a person who has taken part in the formation, promotion, administration, management or winding up of the company;

may have engaged in conduct constituting an offence under a law of the Commonwealth or a State or Territory in relation to the company that has had, or is likely to have, a material adverse effect on the interests of the creditors as a whole or of a class of creditors as a whole, the liquidator must:

(c)    as soon as practicable, and in any event within 6 months, after first forming the opinion, lodge with ASIC a report in the prescribed form (if any) with respect to the matter and state in the report whether the liquidator proposes to make an application for an examination or order under section 597 of the Act; and

(d)    give ASIC such information, and give to it such access to and facilities for inspecting and taking copies of any documents, as ASIC requires.

5.5.05(3)    
The liquidator may also, if the liquidator thinks fit, lodge further reports specifying any other matter that, in the liquidator's opinion, it is desirable to bring to the notice of ASIC.

5.5.05(4)    
If it appears to the Court, in the course of winding up a company, that:

(a)    a person mentioned in paragraph (2)(a) or (b) has engaged in conduct constituting an offence under a law of the Commonwealth or a State or Territory in relation to the company that has had, or is likely to have, a material adverse effect on the interests of the creditors as a whole or of a class of creditors as a whole; and

(b)    the liquidator has not lodged with ASIC a report with respect to the matter;

the Court may, on the application of a person interested in the winding up, direct the liquidator to lodge such a report.

REGULATION 5.5.06   NOTICE OF ADOPTION OF SIMPLIFIED LIQUIDATION PROCESS  

5.5.06(1)    
This regulation is made for the purposes of paragraph 500AE(3)(f) of the Act.

5.5.06(2)    
If the liquidator of a company adopts the simplified liquidation process on a day, the liquidator must, within 2 business days after that day, lodge with ASIC:

(a)    notice in the prescribed form (if any) of the adoption; and

(b)    a copy of the declaration given by the directors of the company to the liquidator in accordance with section 498 of the Act.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

Subdivision C - Ceasing of simplified liquidation process  

REGULATION 5.5.07   LIQUIDATOR MUST CEASE TO FOLLOW THE SIMPLIFIED LIQUIDATION PROCESS  

5.5.07(1)    
For the purposes of paragraph 500AC(1)(b) of the Act, a prescribed circumstance is that the liquidator believes on reasonable grounds that:

(a)    the company, or a director of the company, has engaged in conduct; and

(b)    the conduct involved fraud or dishonesty; and

(c)    the conduct has had, or is likely to have, a material adverse effect on the interests of the creditors as a whole or of a class of creditors as a whole.

5.5.07(2)    
The liquidator is taken to have ceased to follow the simplified liquidation process on the day on which the liquidator first held the belief.

REGULATION 5.5.08   TRANSITION FROM SIMPLIFIED LIQUIDATION PROCESS  

5.5.08(1)    
This regulation is made for the purposes of subsection 500AC(2) of the Act.

Notice of cessation of process

5.5.08(2)    
If the liquidator of a company ceases to follow the simplified liquidation process on a day, the liquidator must, within 2 business days after that day, lodge with ASIC notice in the prescribed form (if any) of the cessation.

Note: Failure to comply with this subregulation is an offence: see subsection 1311(1) of the Act.

Validity of things done during process

5.5.08(3)    
Subject to this regulation, the cessation of the simplified liquidation process in relation to a company does not affect the validity of anything that was done in good faith in relation to the company before the cessation.

Reports by liquidator

5.5.08(4)    
If, at any time during the simplified liquidation process, it appeared to the liquidator that one or more of the circumstances in paragraph 533(1)(a), (b) or (c) existed, section 533 of the Act applies in relation to the liquidator as if paragraph 533(1)(d) were modified by omitting "within 6 months" and substituting "within 6 months after the day on which the simplified liquidation process in relation to the company ended".

REGULATION 5.5.09  

5.5.09   WORKING OUT WHETHER THE 25% IN VALUE OF CREDITORS TEST MET  

For the purposes of paragraph 500AD(b) of the Act, a person who is a related entity, and a creditor, of the company is not to be taken into account.

PART 5.6 - WINDING UP GENERALLY  

REGULATION 5.6.01  

5.6.01   MATTERS FOR ENTRY IN LIQUIDATOR'S OR PROVISIONAL LIQUIDATOR'S BOOKS  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[89] (effective 1 September 2017).)

REGULATION 5.6.02  

5.6.02   INSPECTION OF BOOKS KEPT UNDER SECTION 531 OF THE ACT  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[89] (effective 1 September 2017).)

REGULATION 5.6.06  

5.6.06   PAYMENT INTO LIQUIDATOR'S GENERAL ACCOUNT  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[89] (effective 1 September 2017).)

REGULATION 5.6.07  

5.6.07   DEPOSIT OF SECURITIES  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[89] (effective 1 September 2017).)

REGULATION 5.6.08  

5.6.08   DELIVERY OF SECURITIES  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[89] (effective 1 September 2017).)

REGULATION 5.6.09  

5.6.09   SPECIAL BANK ACCOUNT  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[89] (effective 1 September 2017).)

REGULATION 5.6.10  

5.6.10   PAYMENTS OUT OF LIQUIDATOR'S GENERAL ACCOUNT  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[89] (effective 1 September 2017).)

REGULATION 5.6.11  

5.6.11   MEANING OF PROOF OF DEBT OR CLAIM  
In regulations 5.6.37 to 5.6.57, unless the contrary intention appears:

proof of debt or claim
includes a statement of particulars of a debt or claim submitted in accordance with regulation 5.6.39, as well as a formal proof of debt or claim.

REGULATION 5.6.11A  

5.6.11A   ELECTRONIC METHODS OF GIVING OR SENDING CERTAIN NOTICES ETC  
(Repealed by FRLI No F2020L01654, Sch 4[1] (effective 22 December 2020).)

REGULATION 5.6.12  

5.6.12   NOTICE OF MEETING  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.13  

5.6.13   PROOF OF NOTICE  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.13A  

5.6.13A   IF TELEPHONE CONFERENCE FACILITIES ARE AVAILABLE  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.13B  

5.6.13B   PERSONS, OR THEIR PROXIES OR ATTORNEYS, PARTICIPATING BY TELEPHONE  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.14  

5.6.14   TIME AND PLACE OF MEETING  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.14A  

5.6.14A   ADVERTISEMENT OF A MEETING  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.14B  

5.6.14B   MEETINGS NOT CONVENED IN ACCORDANCE WITH REGULATIONS  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.15  

5.6.15   COSTS OF CONVENING MEETINGS OF CREDITORS ETC  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.16  

5.6.16   QUORUM  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.17  

5.6.17   CHAIRPERSON  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.18  

5.6.18   ADJOURNMENT OF MEETING  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.19  

5.6.19   VOTING ON RESOLUTIONS  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.20  

5.6.20   TAKING A POLL  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.21  

5.6.21   CARRYING OF RESOLUTIONS AFTER A POLL HAS BEEN DEMANDED AT A MEETING OF CREDITORS  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.22  

5.6.22   CARRYING OF RESOLUTION AFTER A POLL HAS BEEN DEMANDED AT A MEETING OF CONTRIBUTORIES OR MEMBERS  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.23  

5.6.23   CREDITORS WHO MAY VOTE  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.23A  

5.6.23A   VOTING STATUS OF PERSONS BY WHOM MONEY IS ADVANCED TO A COMPANY  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.24  

5.6.24   VOTES OF SECURED CREDITORS  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.26  

5.6.26   ADMISSION AND REJECTION OF PROOFS FOR PURPOSES OF VOTING  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.27  

5.6.27   MINUTES OF MEETING  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.28  

5.6.28   APPOINTMENT OF PROXIES  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.29  

5.6.29   FORM OF PROXIES  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.30  

5.6.30   INSTRUMENTS OF PROXY  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.31  

5.6.31   PROXY FORMS TO ACCOMPANY NOTICE OF MEETINGS  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.31A  

5.6.31A   PERSON MAY ATTEND AND VOTE BY ATTORNEY  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.32  

5.6.32   LIQUIDATOR ETC MAY ACT AS PROXY  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.33  

5.6.33   VOTING BY PROXY IF FINANCIALLY INTERESTED  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.34  

5.6.34   LIQUIDATOR ETC MAY APPOINT DEPUTY  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.36  

5.6.36   TIME FOR LODGING PROXIES  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.36A  

5.6.36A   FACSIMILE COPIES OF PROXIES  
(Repealed by FRLI No F2016L01926, r 4, Sch 1[94] (effective 1 September 2017).)

REGULATION 5.6.37  

5.6.37   ESTABLISHING TITLE TO PRIORITY  
Regulations 5.6.39 to 5.6.57 (inclusive) apply to the establishment of a title to priority as if it were a debt or claim.

REGULATION 5.6.39   NOTICE TO SUBMIT PARTICULARS OF DEBT OR CLAIM  
Companies not subject to the simplified liquidation process

5.6.39(1)    

Subject to subregulations (1A) and (1B), a liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which a creditor may submit particulars of his or her debt or claim.

Companies subject to the simplified liquidation process

5.6.39(1A)    

Subregulation (1) does not apply in relation to a liquidator of a company that is subject to the simplified liquidation process.

5.6.39(1B)    

A liquidator of a company that is subject to the simplified liquidation process must fix a single day that is 14 days after the day on which notice is given in accordance with subregulation (2), on or before which a creditor may submit particulars of his or her debt or claim.

Notice requirements

5.6.39(2)    

A notice under subregulation (1) or (1B) must be lodged with ASIC in accordance with subregulation 5.6.75(4).

5.6.39(3)    

A notice under subregulation (1) or (1B) must state at least the following information:

(a)    the name of the company;

(b)    any trading name of the company;

(c)    the ACN of the company;

(ca)    

if Division 1 of Part 5.6 of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act - the ARFN of the sub-fund;

(d)    

the day fixed under subregulation (1) or (1B), as the case requires.

5.6.39(4)    

A notice under subregulation (1B) may include a requirement that all, or a specified class, of debts or claims must be proved formally.

Note: If Division 1 of Part 5.6 of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act, that section translates most of this regulation's references to the company so that they are references to the sub-fund.

REGULATION 5.6.40   PREPARATION OF A PROOF OF DEBT OR CLAIM  

5.6.40(1)   [Who may prepare proof]  

A proof of debt or claim may be prepared by the creditor personally or by a person authorised by the creditor.

5.6.40(2)   [Authorised person]  

A proof prepared by an authorised person must state his or her authority and means of knowledge.

REGULATION 5.6.41 

5.6.41   DISCLOSURE OF SECURITY  
A proof of debt or claim must state:

(a) whether the creditor is or is not a secured creditor; and

(b) the value and nature of the creditor's security (if any); and

(c) whether the debt is secured wholly or in part.

REGULATION 5.6.42  

5.6.42   DISCOUNTS  
In preparing a proof of debt or claim, a creditor must allow for all discounts for which an allowance would have been made if the company were not being wound up.

REGULATION 5.6.43   PERIODICAL PAYMENTS  

5.6.43(1)   [Proof of debt]  

If rent or any other payment:

(a) falls due at stated times; and

(b) the relevant date is a time other than one of those times;

the person entitled to the rent or other payment may submit a proof of debt or claim for a proportionate part of the rent or other payment, up to the date of the winding up order or resolution, as if the rent or payment accrued from day to day.

5.6.43(2)   [Liquidator in control of premises]  

If the liquidator remains in control of premises rented to a company that is being wound up, subregulation (1) does not affect the right of the landlord of the premises to claim payment of rent by the company or the liquidator during the period of the company's occupation or the liquidator's control.

REGULATION 5.6.43A   DEBT OR CLAIM OF UNCERTAIN VALUE - APPEAL TO COURT  

5.6.43A(1)    
An appeal to the Court under subsection 554A(3) of the Act must be made:

(a)    within 21 days after the person aggrieved becomes aware of the liquidator's estimate or, if the period is extended under subregulation (2), within the extended period; and

(b)    

in accordance with the rules of court.

5.6.43A(2)    
On application by the person aggrieved before or after the end of the period of 21 days mentioned in subregulation (1), the Court may extend the period within which an appeal must be made.

REGULATION 5.6.44  

5.6.44   DEBT DISCOUNT RATE (ACT s 554B)  
The discount by which the amount payable on the future date is to be reduced under section 554B of the Act is 8% a year calculated from the declaration of the dividend to the time when the debt would have become payable according to the terms on which it was contracted.

REGULATION 5.6.45   EMPLOYEES' WAGES  

5.6.45(1)   [One proof of debt]  

If the employees of a company make demands:

(a) for wages or salaries (whether or not earned wholly or in part by way of commission), whether or not payable to the employees for annual leave or long service leave; or

(b) for retrenchment payments;

one proof of debt or claim may be prepared and submitted on behalf of those employees.

5.6.45(2)   [Names of employees]  

A proof of debt or claim prepared and submitted under subregulation (1):

(a) must have annexed to it a schedule setting out the names of the employees and the amounts due to each of them; and

(b) has the same effect as if separate proofs had been prepared and submitted by each of the employees named in the schedule.

REGULATION 5.6.46  

5.6.46   PRODUCTION OF BILL OF EXCHANGE AND PROMISSORY NOTE  
If a company is, or may become, liable on:

(a) a bill of exchange; or

(b) a promissory note; or

(c) any other negotiable instrument or security;

it must be produced to the liquidator before a proof of debt or claim for the liability can be admitted, unless the Court otherwise orders.

REGULATION 5.6.47   ADMISSION OF DEBT OR CLAIM WITHOUT FORMAL PROOF  

5.6.47(2)   [Formal admission not required]  

If a liquidator admits a debt or claim without formal proof, it is not necessary for the liquidator formally to admit the debt or claim in writing.

5.6.47(3)   [Notice of dividend as notice of admission]  

If a creditor's debt or claim has been admitted without formal proof, a notice of dividend is sufficient notice of the admission.

5.6.47(4)   [Prerequisites to rejection of proof]  

A liquidator must not reject a debt or claim without:

(a) notifying the creditor of the grounds of the liquidator's rejection; and

(b) requiring that a formal proof of debt or claim be submitted for that debt or claim.

REGULATION 5.6.48   NOTICE TO CREDITORS TO SUBMIT FORMAL PROOF  
Companies not subject to the simplified liquidation process

5.6.48(1)    

Subject to subregulation (1A), a liquidator may from time to time fix a day, not less than 14 days after the day on which notice is given in accordance with subregulation (2), on or before which creditors of the company whose debts or claims have not been admitted are formally to prove their debts or claims.

Companies subject to the simplified liquidation process

5.6.48(1A)    

Subregulation (1) does not apply in relation to a liquidator of a company that is subject to the simplified liquidation process.

Note: A notice given under subregulation 5.6.39(1B) may include a requirement that the creditors of a company that is subject to the simplified liquidation process must formally prove all or a specified class of debts or claims (see subregulation 5.6.39(4)).

Notice requirements

5.6.48(2)    

A liquidator must give a notice under subregulation (1):

(a)    

by lodging the notice with ASIC in accordance with subregulation 5.6.75(4); and

(b)    to every person who, to the knowledge of the liquidator, claims to be a creditor of the company, and whose debt or claim has not been admitted.

5.6.48(3)    

A notice under subregulation (1) must state at least the following information:

(a)    the name of the company;

(b)    any trading name of the company;

(c)    the ACN of the company;

(ca)    

if Division 1 of Part 5.6 of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act - the ARFN of the sub-fund;

(d)    the day fixed under subregulation (1).

Failure to comply with liquidator's requirements

5.6.48(4)    
A creditor of the company who fails to comply with a requirement of a liquidator under subregulation (1) is excluded:

(a)    from the benefit of a distribution made before his or her debt or claim is admitted; and

(b)    from objecting to that distribution.

Note: If Division 1 of Part 5.6 of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act, that section translates most of this regulation's references to the company so that they are references to the sub-fund.

REGULATION 5.6.49   FORMAL PROOF OF DEBT OR CLAIM  

5.6.49(1)   [Method of proof]  

A debt or claim may be formally proved by delivering or sending by post a formal proof of debt or claim to the liquidator.

5.6.49(2)   [Forms for proof]  

A formal proof of debt or claim:

(a) that is prepared and submitted in accordance with regulation 5.6.45 - must be in accordance with Form 536; and

(b) in any other case - must be in accordance with Form 535.

REGULATION 5.6.50   CONTENTS OF FORMAL PROOF OF DEBT OR CLAIM  

5.6.50(1)   [Contents of proof]  

A formal proof of debt or claim must:

(a) contain detailed particulars of the debt or claim sought to be proved; and

(b) in the case of a debt, include a statement of account; and

(c) specify the vouchers (if any) by which the statement can be substantiated.

5.6.50(2)   [Vouchers]  

The liquidator may at any time call for the production of the vouchers mentioned in subregulation (1).

REGULATION 5.6.51  

5.6.51   COSTS OF PROOF  
A creditor must bear the cost:

(a) of proving his or her debt or claim; or

(b) of amending a proof of debt or claim;

unless the Court otherwise orders.

REGULATION 5.6.52  

5.6.52   LIQUIDATOR TO NOTIFY RECEIPT OF PROOF OF DEBT OR CLAIM  
If a liquidator is requested to do so by the person submitting a proof of debt or claim, the liquidator must notify that person of the receipt of the proof and whether or not it has been admitted under regulation 5.6.47.

REGULATION 5.6.53   TIME FOR LIQUIDATOR TO DEAL WITH PROOFS  

5.6.53(1)    
A liquidator must, within:

(a) 28 days after receiving a request in writing from a creditor to do so; or

(b) if ASIC allows - any further period;

in writing:

(c) admit all or part of the formal proof of debt or claim submitted by the creditor; or

(d) reject all or part of the formal proof of debt or claim; or

(e) require further evidence in support of it.

5.6.53(2)    
If the liquidator does not deal with a request under subregulation (1) in accordance with that subregulation, the creditor who submitted the proof may apply to the Court for a decision in respect of it.

5.6.53(3)    
If the liquidator gives notice in writing to a creditor that further evidence is required in support of the formal proof of debt or claim submitted by the creditor under subregulation (1), the period mentioned in that subregulation is taken not to have begun to run until the day on which the liquidator receives a sufficient written answer to his or her notice.

REGULATION 5.6.54   GROUNDS OF REJECTION AND NOTICE TO CREDITOR  

5.6.54(1)    
Within 7 days after the liquidator has rejected all or part of a formal proof of debt or claim, the liquidator must:

(a) notify the creditor of the grounds for that rejection in accordance with Form 537; and

(b) give notice to the creditor at the same time:

(i) that the creditor may appeal to the Court against the rejection within the time specified in the notice, being not less than 14 days after service of the notice, or such further period as the Court allows; and

(ii) that unless the creditor appeals in accordance with subparagraph (i), the amount of his or her debt or claim will be assessed in accordance with the liquidator's endorsement on the creditor's proof.

5.6.54(2)    
A person may appeal against the rejection of a formal proof of debt or claim within:

(a) the time specified in the notice of the grounds of rejection; or

(b) if the Court allows - any further period.

5.6.54(3)    
The Court may extend the time for filing an appeal under subregulation (2), even if the period specified in the notice has expired.

5.6.54(4)   
If the liquidator has admitted a formal proof of debt or claim, the notice of dividend is sufficient notice of the admission.

REGULATION 5.6.55   REVOCATION OR AMENDMENT OF DECISION OF LIQUIDATOR  

5.6.55(1)    
If the liquidator considers that a proof of debt or claim has been wrongly admitted, the liquidator may:

(a) revoke the decision to admit the proof and reject all of it; or

(b) amend the decision to admit the proof by increasing or reducing the amount of the admitted debt or claim.

5.6.55(2)    
If the liquidator considers that all of a proof of debt or claim has been wrongly rejected, the liquidator may:

(a) revoke the decision to reject the proof of debt or claim; and

(b) admit all of the proof or admit part of it and reject part of it.

5.6.55(3)    
If the liquidator:

(a) revokes a decision to admit a proof of debt or claim and rejects all of it; or

(b) amends that decision by reducing the amount of the admitted debt or claim;

the liquidator must inform the creditor by whom it was lodged, in writing, of his or her grounds for the revocation or amendment.

5.6.55(4)    
If the liquidator revokes a decision to admit a proof of debt or claim and rejects all of it, or amends that decision by reducing the amount of the admitted debt or claim, the creditor must at once repay to the liquidator:

(a) the amount received as dividend for the proof; or

(b) the amount received as dividend that exceeds the amount that the creditor would have been entitled to receive if his or her debt or claim had been originally admitted for the reduced amount.

5.6.55(5)    
If the liquidator:

(a) revokes a decision to reject all of a proof of debt or claim; or

(b) amends a decision to admit part of a proof of debt or claim;

by increasing the amount of the admitted debt or claim, the creditor by whom it was lodged is entitled to be paid, out of available money for the time being in the hands of the liquidator:

(c) the dividend; or

(d) an additional amount of dividend;

that the creditor would have been entitled to receive if all of the debt or claim had been originally admitted, or the increased amount had been admitted, before the available money is applied to pay a further dividend.

5.6.55(6)    
The creditor is not entitled to disturb the distribution of any dividends declared before the liquidator revoked or amended the decision.

REGULATION 5.6.56  

5.6.56   WITHDRAWAL OR VARIATION OF PROOF OF DEBT OR CLAIM  
A proof of debt or claim may be withdrawn, reduced or varied by a creditor with the consent of the liquidator.

REGULATION 5.6.57  

5.6.57   OATHS  
The liquidator in a winding up by the Court may:

(a) administer an affirmation or oath; and

(b) take an affidavit;

for the purposes of the liquidator's duties in relation to admitting a debt or claim.

REGULATION 5.6.58  

5.6.58   LIQUIDATOR TO MAKE OUT PROVISIONAL LIST OF CONTRIBUTORIES  
If the liquidator of a company considers it necessary to make calls on or adjust the rights of contributories, the liquidator must, as soon as practicable, make out a provisional list of contributories in accordance with Form 538.

REGULATION 5.6.59   TIME AND PLACE FOR SETTLEMENT OF LIST  

5.6.59(1)    
The liquidator must give to each person included in the list not less than 14 days' notice in writing, in accordance with Form 539, of the time and place appointed to settle the list.

5.6.59(2)    

The liquidator or a person acting on his or her behalf must lodge a statement in writing in the prescribed form that notice under subregulation (1) was given to each person included in the provisional list of contributories.

Note: Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a) if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b) if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 23 December 2004, a form for the document mentioned in subregulation (2) is not prescribed in these Regulations.

5.6.59(3)    
A statement under subregulation (2) is evidence that the notice was sent to a person on the list at the address shown for that person, in the absence of evidence to the contrary.

REGULATION 5.6.60   SETTLEMENT OF LIST OF CONTRIBUTORIES  

5.6.60(1)   [Objections to be heard and determined]  

Before settling the list of contributories, the liquidator must hear and determine any objection by a person to being included in the list.

5.6.60(2)   [Form 541]  

The liquidator must settle the list of contributories and certify it, in accordance with Form 541, at the time and place specified in the notice given under regulation 5.6.59.

REGULATION 5.6.61   SUPPLEMENTARY LIST  

5.6.61(1)   [Variation or addition to list]  

The liquidator may at any time vary or add to the list of contributories by:

(a) making out a provisional supplementary list of contributories in accordance with Form 542; and

(b) settling and certifying that list in accordance with Form 543.

5.6.61(2)   [Application]  

Regulation 5.6.59 and subregulation 5.6.60(1) apply to making out, or settling and certifying, a supplementary list by the liquidator.

REGULATION 5.6.62   NOTICE TO CONTRIBUTORIES  

5.6.62(1)    
Within 14 days after the settlement of the list, or supplementary list, of contributories, the liquidator must:

(a) notify each person included in the list, or supplementary list, of his or her inclusion; and

(b) at the same time give each person notice that he or she may appeal to the Court against his or her inclusion within:

(i) 21 days after service of the notice; or

(ii) if the Court allows - any further period.

5.6.62(2)    
A person may appeal against his or her inclusion in the list, or supplementary list, of contributories, within:

(a) 21 days after service on the person of the notice under subregulation (1); or

(b) if the Court allows - any further period.

5.6.62(3)    
The Court may extend the time for filing an appeal under subregulation (2), even if the period of 21 days specified in subregulation (1) has expired.

5.6.62(4)    
A notice for subregulation (1) must be in accordance with Form 544.

5.6.62(5)    

The liquidator, or a person acting on the liquidator's behalf, must lodge a statement in writing in the prescribed form that notice under subregulation (1) was given to each person placed on the list, or supplementary list, of contributories.

Note: Under section 350 of the Act, a document that the Act requires to be lodged with ASIC in a prescribed form must:

(a) if a form for the document is prescribed in these Regulations, be in that prescribed form; and

(b) if a form for the document is not prescribed in these Regulations but ASIC has approved a form for the document, be in that approved form.

On 23 December 2004, a form for the document mentioned in subregulation (5) is not prescribed in these Regulations.

5.6.62(6)    
A statement under subregulation(5) is sufficient evidence that the notice was sent to a person on the list at the address shown for that person, in the absence of evidence to the contrary.

REGULATION 5.6.63  

5.6.63   DIVIDEND PAYABLE ONLY ON ADMISSION OF A DEBT OR CLAIM  
A dividend in the winding up of the affairs of a company may be paid only to a creditor whose debt or claim has been admitted by the liquidator at the date of the distribution of dividends.

REGULATION 5.6.64  

5.6.64   APPLICATION OF REGULATIONS 5.6.37 TO 5.6.57  
For regulations 5.6.64 to 5.6.71, regulations 5.6.37 to 5.6.57 apply:

(a) to the formal proof of a debt or claim; and

(b) to the rejection and to an appeal against the rejection of all or part of a formal proof of a debt or claim.

REGULATION 5.6.65   LIQUIDATOR TO GIVE NOTICE OF INTENTION TO DECLARE A DIVIDEND  

5.6.65(1)    

Subject to subregulation (1A), the liquidator must give notice of his or her intention to declare a dividend not more than 2 months before the intended date:

(a)    

by lodging a notice with ASIC in accordance with subregulation 5.6.75(4); and

(b)    

in writing, in accordance with Form 547 or, for a final dividend, in accordance with Form 548, to any person whose debt or claim has not been admitted and who:

(i) for a winding up by the Court - is shown as a creditor in the report on the affairs of the company under subsection 475(1) of the Act; or

(ii) for a members' voluntary winding up - appears in the company's records to be a creditor; or

(iii) for a creditors' voluntary winding up - is shown as a creditor in the list of creditors prepared in accordance with subparagraph 497(1)(a)(ii) of the Act; or

(iv) to the knowledge of the liquidator claims to be, or might claim to be, a creditor of the company.

5.6.65(1A)    

The requirement in subregulation (1) that the notice must be given not more than 2 months before the intended date does not apply in relation to a liquidator of a company that is subject to the simplified liquidation process.

5.6.65(2)    
A notice in accordance with subregulation (1) must specify a date, not less than 21 days after the date of the notice, on or before which formal proof, in accordance with Form 535 or 536, of a debt or claim must be submitted to participate in the distribution.

5.6.65(2A)    

Also, the notice must state at least the following information:

(a)    the name of the company;

(b)    any trading name of the company;

(c)    the ACN of the company;

(d)    

if Division 1 of Part 5.6 of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act - the ARFN of the sub-fund.

5.6.65(3)    
Subject to regulation 5.6.68, a person:

(a)    who claims to be a creditor; and

(b)    who does not submit a formal proof of a debt or claim on or before the date specified in the notice given under subregulation (1);

is excluded from participating in the distribution to which that notice relates.

Note: If Division 1 of Part 5.6 of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act, that section translates most of this regulation's references to the company so that they are references to the sub-fund.

REGULATION 5.6.66   TIME ALLOWED FOR DEALING WITH FORMAL PROOF OF DEBT OR CLAIM  

5.6.66(1)    
If the liquidator has given notice in accordance with subregulation 5.6.65(1), the liquidator must:

(a) within 14 days after the date shown in the notice; or

(b) within such further period as ASIC allows;

in writing:

(c) before the end of that period:

(i) admit a formal proof of debt or claim received by the liquidator; or

(ii) reject it; or

(iii) admit part of it and reject part of it; or

(iv) require further evidence in support of it; and

(d) give notice of the liquidator's decision to the creditor who submitted the proof.

5.6.66(2)    
If, within whichever period is applicable under paragraph (1)(a) or (b) or subregulation (3), the liquidator does not, in writing, deal with a formal proof of debt or claim in accordance with paragraphs (1)(c) and (d), the creditor who submitted the proof may apply to the Court for a decision on it.

5.6.66(3)    
If the liquidator gives notice to a creditor that further evidence is required in relation to a formal proof of debt or claim submitted by the creditor:

(a) the liquidator must, in writing, deal with the formal proof of debt or claim in accordance with paragraphs (1)(c) and (d), within whichever period mentioned in paragraph (1)(a) or (b) is applicable; and

(b) that period must be taken not to have begun to run until the day on which the liquidator receives a sufficient written answer to his or her request.

REGULATION 5.6.67   DECLARATION AND DISTRIBUTION OF DIVIDEND  

5.6.67(1)   [Declaration and distribution]  

The liquidator must, as soon as practicable, declare and distribute a dividend among the creditors whose debts or claims have been admitted.

5.6.67(2)   [Costs of administration, etc]  

The liquidator must distribute as dividend all money in hand except enough:

(a) to meet the costs of administration; or

(b) to give effect to the provisions of the Act.

5.6.67(3)   [Form 549]  

If the liquidator declares a dividend, he or she must send a notice of that declaration, in accordance with Form 549, to every person entitled to receive payment of the dividend.

REGULATION 5.6.67A  

5.6.67A   SINGLE DECLARATION AND DISTRIBUTION OF DIVIDEND FOR COMPANIES INSIMPLIFIED LIQUIDATION  

The liquidator of a company that is subject to the simplified liquidation process may declare and distribute a dividend only once among creditors whose debts or claims have been admitted.

REGULATION 5.6.68   RIGHTS OF CREDITOR WHO HAS NOT PROVED DEBT BEFORE DECLARATION OF DIVIDEND  

5.6.68(1)    
If:

(a) a creditor's debt or claim has not been admitted before the declaration of a dividend; and

(b) the debt or claim is admitted;

the creditor is entitled to be paid dividends that the creditor has failed to receive, out of any available money for the time being in the hands of the liquidator, before that money is applied to the payment of a further dividend.

5.6.68(2)    
A creditor is not entitled to disturb the distribution of a dividend declared before the creditor's debt or claim was admitted.

5.6.68(3)    

This regulation does not apply in relation to a creditor of a company that is subject to the simplified liquidation process.

REGULATION 5.6.69  

5.6.69   POSTPONEMENT OF DECLARATION  

If the liquidator postpones the declaration of a dividend past the date shown for that purpose in the notice lodged with ASIC in accordance with subregulation 5.6.75(4), the liquidator must lodge another notice with ASIC for publication on the publication website of the liquidator's intention to declare a dividend.

REGULATION 5.6.70  

5.6.70   PAYMENT OF DIVIDEND TO A PERSON NAMED  
If a person to whom a dividend is payable lodges an authority in accordance with Form 550 with the liquidator, the liquidator must pay the dividend to the person to whom payment is directed by that authority.

REGULATION 5.6.70A  

5.6.70A   PRESCRIBED RATE OF INTEREST ON DEBTS AND CLAIMS FROM RELEVANT DATE TO DATE OF PAYMENT  
For section 563B of the Act, the prescribed rate of interest on the amount paid in respect of an admitted debt or claim for the period starting on the relevant date and ending on the day on which the payment is made is 8% a year.

REGULATION 5.6.70B   NOTICE OF DISCLAIMER  

5.6.70B(1)    
This regulation is made for subsection 568A(2) of the Act.

5.6.70B(2)    
The information about a disclaimer that is to be set out in a notice is at least the following information:

(a)    the name of the company;

(b)    any trading name of the company;

(c)    the ACN of the company;

(ca)    

if subsection 568A(2) of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act - the ARFN of the sub-fund;

(d)    the paragraph of subsection 568(1) of the Act under which the property is disclaimed;

(e)    a description of the property;

(f)    if the property is a contract (other than an unprofitable contract or a lease of land) - the date on which the Court granted leave under subsection 568(1A) of the Act;

(g)    the name and contact details of the liquidator.

Note: If subsection 568A(2) of the Act applies for a sub-fund of a CCIV because of section 1237B of the Act, that section translates most of this sub-regulation's references to the company so that they are references to the sub-fund.

REGULATION 5.6.71   DISTRIBUTION OF SURPLUS IN A WINDING UP BY THE COURT  

5.6.71(1)   [Form 551]  

An order in a winding up by the Court authorising the liquidator to distribute any surplus to a person entitled to it must, unless the Court otherwise directs, have annexed to it a schedule in accordance with Form 551.

5.6.71(2)   [Form 552]  

The liquidator must send to each person to whom any surplus is distributed a notice in accordance with Form 552.

REGULATION 5.6.72  

5.6.72   DISTRIBUTION OF SURPLUS AS DIRECTED  
If a person who receives a notice of distribution of surplus in accordance with subregulation 5.6.71(2) lodges with the liquidator an authority in accordance with Form 553, the liquidator must distribute that surplus to the person to whom payment is directed by that authority.

REGULATION 5.6.73   ELIGIBLE UNSECURED CREDITOR  

5.6.73(1)   Creditors that are eligible unsecured creditors.  

For paragraph 579Q(1)(b) of the Act, the following creditors are specified:

(a) a creditor to which either of the following applies as a result of a modification of the Act made under paragraph 571(1)(d) of the Act:

(i) a debt payable by a company or companies in a group to any other company or companies in the group is not extinguished;

(ii) a claim that a company or companies in a group has against any other company or companies in the group is not extinguished;

(b) a creditor that is determined by a Court to be an eligible unsecured creditor.

5.6.73(2)   Creditors that are not eligible unsecured creditors.  

For subsection 579Q(2) of the Act, a creditor that is determined by a Court not to be an eligible unsecured creditor is specified.

REGULATION 5.6.74  

5.6.74   EXTERNAL ADMINISTRATION MATTERS - PRESCRIBED COUNTRIES  

For the purposes of subparagraph 581(2)(a)(iii) of the Act, the following countries are prescribed:

(a)    the Bailiwick of Jersey;

(b)    Canada;

(c)    the Independent State of Papua New Guinea;

(d)    Malaysia;

(e)    New Zealand;

(f)    the Republic of Singapore;

(g)    Switzerland;

(h)    the United Kingdom;

(i)    the United States of America.

REGULATION 5.6.75   PUBLICATION IN THE PRESCRIBED MANNER  

5.6.75(1)    
ASIC must establish and maintain a website (the publication website ) on which it publishes notices that have to be:

(a)    

published in the prescribed manner under Part 5.1, 5.3A, 5.3B, 5.4, 5.4B, 5.4C, 5.5, 5.6, 5.8, 5A.1 or 5B.2 of the Act; or

(b)    lodged in accordance with this section.

5.6.75(2)    
ASIC is taken to have complied with a requirement to publish a notice, or a copy of a notice, in the prescribed manner if ASIC publishes the notice on the publication website.

5.6.75(3)    
A person (other than ASIC) is taken to have complied with a requirement to publish a notice, or a copy of a notice, in the prescribed manner if the person electronically lodges the notice with ASIC for publication by ASIC.

5.6.75(4)    
A person electronically lodges a notice, or a copy of a notice, with ASIC if:

(a)    the person:

(i) pays the fee prescribed under the Corporations (Fees) Regulations 2001; and

(ii) sends the notice in an electronic communication to the portal for ASIC's publication website, in the format required by ASIC; and

(iii) receives an electronic communication from ASIC that confirms the fee has been paid and the notice has been lodged; or

(b)    the notice, or a copy of the notice, appears on the publication website.

5.6.75(5)    
If a person lodges a notice, or a copy of a notice, in accordance with subsection (4), ASIC must publish the notice or copy of the notice on the publication website.

5.6.75(6)    
(Repealed by FRLI No F2020L01654, Sch 4[11] (effective 22 December 2020).)

PART 5.7B - RECOVERING PROPERTY OR COMPENSATION FOR THE BENEFIT OF CREDITORS OF INSOLVENT COMPANY  

REGULATION 5.7B.01  

5.7B.01   EXTENSION OF TEMPORARY RELIEF FOR INSOLVENT TRADING SAFE HARBOUR  

For the purposes of subparagraph 588GAAA(1)(b)(ii) of the Act, the period prescribed is the period starting on the day that section 588GAAA of the Act commenced and ending at the end of 31 December 2020.

CHAPTER 5B - BODIES CORPORATE REGISTERED AS COMPANIES, AND REGISTRABLE BODIES  

PART 5B.2 - REGISTRABLE BODIES  

REGULATION 5B.2.01  

5B.2.01   CERTIFIED COPIES OF CERTIFICATES OF INCORPORATION ETC  
For paragraphs 601CB(a) and 601CE(a) of the Act, a certified copy of a current certificate of the incorporation or registration in its place of origin, or a document of similar effect, of:

(a) a registrable Australian body; or

(b) a foreign company;

that is lodged with an application for registration under Division 1 or 2 of Part 5B.2 of the Act, must be a copy that:

(c) within the 3 months immediately before the day on which it is lodged; or

(d) if ASIC permits - within a longer period;

has been certified to be a true copy by a person:

(e) who has the custody of the original document under a law in force in the place of origin of the corporation or company; and

(f) who exercises under that law functions similar to those exercised by ASIC.

REGULATION 5B.2.02  

5B.2.02   MANNER OF CERTIFYING CONSTITUENT DOCUMENTS  
For paragraphs 601CB(b) and 601CE(b) of the Act, a certified copy of a constitution of:

(a) a registrable Australian body; or

(b) a foreign company;

must be a copy that:

(c) within the period of 3 months immediately preceding the day on which it is lodged; or

(d) if ASIC permits - a longer period;

has been certified to be a true copy:

(e) by a person:

(i) to whom the custody of the original document is committed under a law in force in the place of origin of the corporation or company; and

(ii) who exercises under that law functions similar to those exercised by ASIC; or

(f) by a notary public; or

(g) by a director or secretary of the body:

(i) if the body is a registrable Australian body - by a statement in writing; or

(ii) if the body is a foreign company - by affidavit.

REGULATION 5B.2.03  

5B.2.03   MANNER OF SENDING LETTERS (ACT ss 601CC(2) AND 601CL(3))  
For subsections 601CC(2) and 601CL(3) of the Act, a letter must be sent by post.

REGULATION 5B.2.04  

5B.2.04   MANNER OF SENDING NOTICES (ACT ss 601CC(3) AND 601CL(4))  
For subsections 601CC(3) and 601CL(4) of the Act, a notice must be sent by prepaid certified mail.

REGULATION 5B.2.05  

5B.2.05   PRESCRIBED COUNTRIES (ACT s 601CDA(a))  

For paragraph 601CDA(a) of the Act, a country mentioned in the following table is prescribed:

Item	Country
1	New Zealand

REGULATION 5B.2.06   NOTICES (ACT s 601CV(1))  

5B.2.06(1)   [Change in constitution or other document]  

A notice in writing of a change in a constitution or other document, in accordance with paragraph 601CV(1)(b) of the Act, must be accompanied by a copy of the instrument effecting the change or a copy of the document as changed, being a copy that is certified to be a true copy of that instrument or document by a person mentioned in paragraph 5B.2.02(e), (f) or (g).

5B.2.06(2)   [Change in director's powers]  

A notice in writing of a change in director's powers, in accordance with subparagraph 601CV(1)(d)(i) of the Act, must be accompanied by a memorandum in writing executed by or on behalf of the foreign company after a change in those powers stating the powers of its directors as changed.

PART 5B.3 - NAMES OF REGISTRABLE AUSTRALIAN BODIES AND FOREIGN COMPANIES  

REGULATION 5B.3.01   AVAILABILITY OF NAMES (ACT s 601DC)  

5B.3.01(1)   [Identical names]  

For paragraphs 601DC(1)(a) and (b) of the Act, the rules for ascertaining whether a name is identical with another name are the rules set out in Part 1 of Schedule 6.

5B.3.01(2)   [Unacceptable names]  

For paragraph 601DC(1)(c) of the Act, a name is unacceptable for registration under the regulations if the name is unacceptable under the rules set out in Part 2 of Schedule 6.

REGULATION 5B.3.02   CONSENTS REQUIRED FOR USE OF CERTAIN LETTERS, WORDS AND EXPRESSIONS  

5B.3.02(1)   [Application]  

This regulation applies to a name if:

(a) the name:

(i) is the subject of an application for registration of a name under section 601BC, 601CB or 601CE of the Act; or

(ii) is the subject of an application for reservation of a name under section 601DA of that Act; or

(iii) for a notice of change of name undersection 601DH of the Act - is the name to which the previous name is to be changed; and

(b) the name is, uses or includes:

(i) letters, or a word or expression, specified in column 2 of an item in Part 4 or 5 of Schedule 6; or

(ii) other letters, or another word or expression (whether or not in English), that is of like import to the letters, word or expression specified in the item.

5B.3.02(2)   [Interpretation]  

In paragraph (1)(b), a reference to letters, a word or an expression being used includes a reference to the letters, word or expression being used:

(a) as part of another word or expression; or

(b) in combination with other words or letters, or other symbols.

5B.3.02(3)   [Use of ``ADI'']  

However, this regulation does not apply to use of the letters ADI as part of another word.

Example

The letters adi appear in the word traditional . This regulation does not apply to use of the word traditional .

5B.3.02(4)   [Consent of Minister]  

If an item in Part 4 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the Minister who is specified in the item.

5B.3.02(5)   [Consent of public authority or agency]  

If an item in Part 5 of Schedule 6 applies in relation to the name, the application or notice must be accompanied by the written consent of the public authority, instrumentality or agency that is specified in the item.

REGULATION 5B.3.03  

5B.3.03   EXEMPTIONS FROM REQUIREMENT TO SET OUT ARBN ETC ON CERTAIN DOCUMENTS (ACT s 601DG)  
For section 601DG of the Act, the exemptions provided for in Schedule 7 apply in relation to the requirements of paragraphs 601DE(1)(b), (c) and (d) of the Act.

REGULATION 5B.3.04   NOTICES (ACT s 601DH(1))  

5B.3.04(1)   [Change of name]  

A notice in writing of a change of name in accordance with subsection 601DH(1) of the Act, must have annexed to it:

(a) a copy of the certificate of incorporation or registration of the registered body, or a document of similar effect, being a certificate or document evidencing the change; or

(b) if no certificate or document of that kind exists - a copy of the instrument effecting the change;

being a copy that is certified by a person mentioned in paragraph 5B.2.02(e), (f) or (g) to be a true copy of that certificate, document or instrument.

CHAPTER 5C - MANAGED INVESTMENT SCHEMES  

PART 5C.1 - REGISTRATION OF MANAGED INVESTMENT SCHEMES  

REGULATION 5C.1.01   APPLYING FOR REGISTRATION  

5C.1.01(1)    
An application under section 601EA of the Act to register a managed investment scheme must be in the approved form.

5C.1.01(2)    
The form must state the name of the managed investment scheme.

5C.1.01(3)    
The stated name must not be the same as the name of:

(a) another managed investment scheme that is the subject of an application for registration under section 601EA of the Act that is lodged but not yet determined; or

(b) a registered scheme; or

(c) a foreign passport fund in relation to which a notice of intention has been lodged under section 1213 of the Act if:

(i) the operator of the fund has not withdrawn the notice under subsection 1213(3) of the Act; and

(ii) ASIC has not rejected the notice of intention under section 1213B of the Act; or

(d) a notified foreign passport fund.

5C.1.01(4)    
A statement made for paragraph 601EA(4)(c) of the Act must be in the approved form.

REGULATION 5C.1.02   CHANGE OF NAME OF REGISTERED SCHEMES  

5C.1.02(1)    
To change the name of a registered scheme, the responsible entity of the scheme must lodge a notice in the approved form stating the proposed name of the scheme.

5C.1.02(2)    
The stated name must not be the same as the name of:

(a) another managed investment scheme that is the subject of an application for registration under section 601EB of the Act that is lodged but not yet determined; or

(b) a registered scheme; or

(c) a foreign passport fund in relation to which a notice of intention has been lodged under section 1213 of the Act if:

(i) the operator of the fund has not withdrawn the notice under subsection 1213(3) of the Act; and

(ii) ASIC has not rejected the notice of intention under section 1213B of the Act; or

(d) a notified foreign passport fund.

5C.1.02(3)    
On application in accordance with this regulation, ASIC must amend the record of the registration of the scheme to include the name of the scheme as proposed to be amended.

REGULATION 5C.1.03   MODIFICATION (ACT s 601QB)  

5C.1.03(1)   [Modification]  

For section 601QB of the Act, the operation of Chapter 5C of the Act is modified in accordance with this regulation.

5C.1.03(2)   [Limitation]  

If:

(a) a managed investment scheme is registered under section 601EB of the Act; and

(b) the managed investment scheme is also registered on the Australian Business Register; and

(c) the last 9 digits of the ABN of the registered scheme are the same, and in the same order, as the last 9 digits of its ARSN; and

(d) a document relating to the scheme is lodged with ASIC, and displays that ABN;

section 601EC of the Act does not apply to the document.

PART 5C.2 - THE RESPONSIBLE ENTITY  

REGULATION 5C.2.01  

5C.2.01   DUTY OF RESPONSIBLE ENTITIES' AGENTS - SURVEILLANCE CHECKS  
The agent of a responsible entity must take all reasonable steps to assist the entity and ASIC when ASIC is conducting a check whether the entity is complying with the constitution and compliance plan of a registered scheme and with the Act.

REGULATION 5C.2.02  

5C.2.02   APPOINTMENT OF TEMPORARY RESPONSIBLE ENTITIES  
ASIC, or a member of a registered scheme, may apply to the Court for the appointment of a temporary responsible entity of the scheme if ASIC or member reasonably believes that the appointment is necessary to protect scheme property or the interests of members of the scheme.

REGULATION 5C.2.03  

5C.2.03   FORM OF NOTICES (ACT ss 601FL(2) AND 601FM(2))  
A notice to be lodged under subsection 601FL(2) or 601FM(2) of the Act must be in the approved form.

REGULATION 5C.2.04  

5C.2.04   NOTICE OF APPOINTMENT OF TEMPORARY RESPONSIBLE ENTITIES  
As soon as practicable after the Court appoints a temporary responsible entity for a registered scheme on application by a member of the scheme under section 601FN of the Act, the member must lodge a notice in the approved form that tells ASIC of the appointment.

REGULATION 5C.2.05  

5C.2.05   FORM OF NOTICES (ACT s 601FP(3))  
A notice to be lodged under subsection 601FP(3) of the Act must be in the approved form.

PART 5C.4 - THE COMPLIANCE PLAN  

REGULATION 5C.4.01  

5C.4.01   AGENTS' AUTHORITIES TO BE LODGED  
If a compliance plan, or modification of a plan, lodged with ASIC under section 601HC or subsection 601HE(3) of the Act is signed by an agent of the directors of the responsible entity of the registered scheme to which the plan relates, the authority to do so, or a copy of the authority verified by a director of the entity, must be attached to the plan or modification.

REGULATION 5C.4.02  

5C.4.02   AGENTS TO ASSIST AUDITORS OF COMPLIANCE PLANS  
An agent of the responsible entity of a registered scheme, and an officer of the agent, must:

(a) allow the auditor of the scheme's compliance plan to have access to the books of the scheme; and

(b) if the auditor requires the agent or entity to give the auditor information or an explanation for the audit - give the information or explanation to the auditor; and

(c) otherwise assist the conduct of the audit.

PART 5C.5 - THE COMPLIANCE COMMITTEE  

REGULATION 5C.5.01   RESPONSIBLE ENTITIES ETC TO ASSIST COMPLIANCE COMMITTEES  

5C.5.01(1)   [Application]  

This regulation applies to a person who is the responsible entity of a registered scheme, an officer of the entity, an agent of the entity or an officer of the agent.

5C.5.01(2)   [Assistance]  

The person must:

(a) allow the compliance committee to have access to the books of the scheme; and

(b) if the committee requires the person to give the committee information or an explanation about the scheme - give the information or explanation to the committee; and

(c) otherwise assist the committee in the performance of its functions.

PART 5C.9 - WINDING UP  

REGULATION 5C.9.01  

5C.9.01   NOTICE OF COMMENCEMENT OF WINDING UP  
The responsible entity of a registered scheme must lodge a notice in the approved form telling ASIC that winding up of the scheme has commenced, or been completed, within 14 days of the commencement or completion.

PART 5C.11 - EXEMPTIONS AND MODIFICATIONS  

Division 1 - Exemptions  

REGULATION 5C.11.01   CERTAIN SCHEMES NOT MANAGED INVESTMENT SCHEMES  

5C.11.01(1)    
This regulation is made for the purposes of paragraph (n) of the definition of managed investment scheme in section 9 of the Act.

5C.11.01(2)    
An approved benefit fund (within the meaning of subsection 16B(1) of the Life Insurance Act 1995) is declared not to be a managed investment scheme.

5C.11.01(2A)    

A scheme (a litigation funding scheme ) that has all of the following features is declared not to be a managed investment scheme:

(a)    the dominant purpose of the scheme is for each of its general members to seek remedies to which the general member may be legally entitled;

(b)    the possible entitlement of each of its general members to remedies arises out of:

(i) the same, similar or related transactions or circumstances that give rise to a common issue of law or fact; or

(ii) different transactions or circumstances but the claims of the general members can be appropriately dealt with together;

(c)    the possible entitlement of each of its general members to remedies relates to transactions or circumstances that occurred before or after the first funding agreement (dealing with any issue of interests in the scheme) is finalised;

(d)    the steps taken to seek remedies for each of its general members include a lawyer providing services in relation to:

(i) making a demand for payment in relation to a claim; or

(ii) lodging a proof of debt; or

(iii) commencing or undertaking legal proceedings; or

(iv) investigating a potential or actual claim; or

(v) negotiating a settlement of a claim; or

(vi) administering a deed of settlement or scheme of settlement relating to a claim;

(e)    a person (the funder ) provides funds, indemnities or both under a funding agreement (including an agreement under which no fee is payable to the funder or lawyer if the scheme is not successful in seeking remedies) to enable the general members of the scheme to seek remedies;

(f)    the funder is not a lawyer or legal practice that provides a service for which some or all of the fees, disbursements or both are payable only on success.

5C.11.01(3)    

A scheme (a litigation funding scheme ) that has all of the following features is declared not to be a managed investment scheme:

(a)    the scheme relates to a Chapter 5 body corporate;

(b)    the creditors or members of the body corporate provide funds (including through a trust), indemnities or both to the body corporate or external administrator;

(c)    the funds, indemnities or both enable the external administrator or the body corporate to:

(i) conduct investigations; or

(ii) seek or enforce a remedy against a third party; or

(iii) defend proceedings brought against the body corporate in relation to the external administration of the body corporate (other than in relation to allegations, made by creditors or members of the body corporate, of negligence or non-performance of duties by the external administrator).

5C.11.01(4)    
An arrangement (a litigation funding arrangement ) that has all of the following features is declared not to be a managed investment scheme:

(a)    the dominant purpose of the arrangement is proving claims made by a general member who is an individual under Division 6 of Part 5.6 of the Act (which may include the funding of the preparation and the lodgement of the proofs);

(b)    the steps taken under the arrangement include a lawyer providing services in relation to:

(i) making a demand for payment in relation to a claim; or

(ii) lodging a proof of debt; or

(iii) commencing or undertaking legal proceedings; or

(iv) investigating a potential or actual claim; or

(v) negotiating a settlement of a claim; or

(vi) administering a deed of settlement or scheme of settlement relating to a claim;

(c)    a person (the funder ) provides funds, indemnities or both under a funding agreement (including an agreement under which no fee is payable to the funder or lawyer if the arrangement is not successful in proving claims) to enable the general member to prove the claims;

(d)    the funder is not a lawyer or legal practice that provides a service for which some or all of the fees, disbursements or both are payable only on success;

(e)    

the arrangement is not a litigation funding scheme.

5C.11.01(5)    
An arrangement (a litigation funding arrangement ) that has all of the following features is declared not to be a managed investment scheme:

(a)    the dominant purpose of the arrangement is for a general member to seek remedies to which the general member may be legally entitled;

(b)    the steps taken to seek remedies include a lawyer providing services in relation to:

(i) making a demand for payment in relation to a claim; or

(ii) lodging a proof of debt; or

(iii) commencing or undertaking legal proceedings; or

(iv) investigating a potential or actual claim; or

(v) negotiating a settlement of a claim; or

(vi) administering a deed of settlement or scheme of settlement relating to a claim;

(c)    a person (the funder ) provides funds, indemnities or both under a funding agreement (including an agreement under which no fee is payable to the funder or lawyer if the arrangement is not successful in seeking remedies) to enable the general member to seek remedies;

(d)    the funder is not a lawyer or legal practice that provides a service for which some or all of the fees, disbursements or both are payable only on success;

(e)    

the arrangement is not a litigation funding scheme.

5C.11.01(6)    

In this regulation:

external administrator
includes an administrator, a liquidator (including a provisional liquidator) and a controller.

general member
:

(a) in relation to a litigation funding scheme - means a member of the scheme who:

(i) is not the funder; and

(ii) is not a lawyer providing services for the purposes of the scheme; and

(b) in relation to a litigation funding arrangement - means the party to the arrangement who:

(i) is not the funder; and

(ii) is not a lawyer providing services for the purposes of the arrangement.

Division 2 - Modifications  

REGULATION 5C.11.02  

5C.11.02   MODIFICATIONS  
For section 601QB of the Act, the operation of the Act is modified in accordance with this Division.

REGULATION 5C.11.03  

5C.11.03   REGISTER OF MEMBERS OF REGISTERED SCHEMES (ACT s 169(1))  
The register of members of a registered scheme need not contain information about a member whose only interest in the scheme is as the holder of an option.

REGULATION 5C.11.03A  

5C.11.03A   HOW TO WORK OUT THE VALUE OF AN INTEREST  

If a registered scheme is quoted on 2 or more prescribed financial markets, paragraph 253F(a) of the Act is to be applied so that the value of an interest in the registered scheme is taken to be the last sale price, on the market on which the scheme is listed, on the trading day immediately before the day on which the poll is taken.

REGULATION 5C.11.04  

5C.11.04   NAMES OF REGISTERED SCHEMES (ACT s 601EB(1))  
ASIC must not register a managed investment scheme under Part 5C.1 of the Act if the name of the scheme statedunder subregulation 5C.1.01(2) does not comply with subregulation 5C.1.01(3).

REGULATION 5C.11.05A  

5C.11.05A   SCHEMES NOT REQUIRED TO BE REGISTERED (ACT s 601ED)  

Subsection 601ED(2) of the Act has effect as if the words `and Division 2 of Part 7.9 applied to the interests at that time' were inserted after the words `when the issues were made'.

REGULATION 5C.11.06  

5C.11.06   LIABILITY OF RESPONSIBLE ENTITIES (ACT s 601FB(4))  
In determining the liability under subsection 601FB(2) of the Act of the responsible entity of a registered scheme to the members of the scheme for an act or omission of an agent appointed by the entity under that subsection, the amount recovered under subsection 601FB(4) of the Act is to be disregarded.

CHAPTER 5D - LICENSED TRUSTEE COMPANIES  

PART 5D.1 - PRELIMINARY  

REGULATION 5D.1.01  

5D.1.01   PRESCRIBED REQUIREMENTS FOR PUBLICATION  
(Repealed by FRLI No F2023L01423, Sch 2[2] (effective 1 January 2024).)

REGULATION 5D.1.01A   MEANING OF TRUSTEE COMPANY  

5D.1.01A(1)    
For subsection 601RAB(1) of the Act, a company that is listed in Schedule 8AA is a trustee company for the purpose of the Act.

5D.1.01A(2)    
A company that performs the function of the Public Trustee of a State or Territory may only be listed in Schedule 8AA if:

(a) the State or Territory requests the Minister to prescribe the company as a trustee company; and

(b) the Minister agrees to the request.

REGULATION 5D.1.02   MEANING OF TRADITIONAL TRUSTEE COMPANY SERVICES AND ESTATE MANAGEMENT FUNCTIONS  

5D.1.02(1)    
For paragraph 601RAC(3)(f) of the Act, acting in any of the following capacities is prescribed:

(a)    as trustee for the holders of debt securities of a body;

(b)    as trustee of a trust established for purposes that include issuing debt securities (including loan-backed securities and mortgage-backed securities) or managing or servicing the assets of the trust;

(c)    

as trustee for the benefit of present or future creditors of another person when holding:

(i) mortgages, charges, guarantees, indemnities or other rights or benefits that have been given to secure debts owing to the creditors; and

(ii) the proceeds from the enforcement of any of those things that have been given in subparagraph (i);

(d)    as custodian for another trustee or for the responsible entity of a registered scheme or other commercial entity;

(e)    as trustee of a managed investment scheme the main assets of which consist of land and improvements on the land where the trustee is not responsible for the daily management of the land or any business conducted on the land;

(f)    as trustee for employee share or benefit schemes;

(g)    as trustee for trusts the main activities of which consist of making loans to, or otherwise investing in, companies or other commercial entities;

(h)    as an escrow agent;

(i)    as a person named in a will as an executor when not actively providing a service or function;

(j)    as a person named in a power of attorney as an attorney when not actively providing a service or function;

(k)    preparing a power of attorney for a person's medical treatment or for guardianship of a person's affairs;

(l)    preparing a living will or advance health directive of any kind.

5D.1.02(1A)    

Paragraph (1)(d) does not apply to a custodian that is a trustee establishing and operating a common fund.

5D.1.02(2)    

In this regulation:

custodian
(Repealed by FRLI No F2023L01458, Sch 1[141] (effective 1 November 2023).)

debt security
means:

(a) any debenture, debenture stock, bond, note or other security of a corporation or body; or

(b) any convertible note issued by a company or any convertible note in a unit trust scheme issued by the trustee of a unit trust scheme; or

(c) any right to a security mentioned in paragraph (a) or (b);

whether or not it is a charge on the assets of the corporation, company, society or unit trust scheme.

employee share or benefit scheme
means a scheme under which a company offers for issue or sale shares (or options over issued shares) in the company, or some other benefit in the company, only to a director or employee of the company, or of an associated body corporate, when the offer is made.

escrow agent
means a person with whom is deposited a contract, deed, bond or other written agreement or property for delivery to the grantee, promisee or some other person on resolution of a dispute or fulfilment of some condition.

loan-backed security
means:

(a) an instrument or property:

(i) creating a right or interest (whether described as a unit, bond or otherwise) for a beneficiary; or

(ii) conferring a right or interest (whether described as a unit, bond or otherwise) on a beneficiary; or

(iii) consisting of a right or interest (whether described as a unit, bond or otherwise) of a beneficiary;

in a scheme under which the profits, distributions of capital or income in which beneficiaries share arise or arises from the acquisition, holding, management or disposal of a loan or pool of loans; or

(b) an instrument which evidences a right or interest mentioned in paragraph (a); or

(c) a debt security:

(i) the payments under which by the person that issues or makes the instrument are derived mainly from the acquisition, holding, management or disposal of a loan or pool of loans; and

(ii) that is secured by a mortgage or charge over a loan or pool of loans.

mortgage-backed security
has the meaning given in regulation 5D.1.03.

REGULATION 5D.1.03   MEANING OF MORTGAGE-BACKED SECURITY  

5D.1.03(1)   ["mortgage-backed security"]  

A mortgage-backed security is:

(a) an interest in a trust that entitles the holder of, or beneficial owner under, the interest to:

(i) the whole, or any part, of the rights or entitlements of a mortgagee and any other rights or entitlements in respect of a mortgage or pool of mortgages; or

(ii) any amount payable by the mortgagor or mortgagors under a mortgage or mortgages (whether or not the amount is payable to the holder of, or beneficial owner under, the interest on the same terms as under the mortgage or mortgages); or

(iii) payments that are derived mainly from the income or receipts of a mortgage or pool of mortgages;

and that may, in addition, entitle the holder, or beneficial owner, to a transfer or assignment of the mortgage or mortgages; or

(b) a debt security (whether or not in writing) the payments under which by the person who issues or makes the debt security are derived mainly from the income or receipts of a mortgage or pool of mortgages; or

(c) any of the following:

(i) an interest in a trust:

(A) creating a right or interest (whether described as a unit, bond or otherwise) for a beneficiary; or

(B) conferring a right or interest (whether described as a unit, bond or otherwise) on a beneficiary; or

(C) consisting of a right or interest (whether described as a unit, bond or otherwise) of a beneficiary;

in a scheme under which any profit or income in which the beneficiaries share arises from the acquisition, holding, management or disposal of a mortgage, pool of mortgages or the income or receipts of a mortgage or pool of mortgages;

(ii) any instrument that evidences a right or interest mentioned in subparagraph (i);

(iii) a security (whether or not in writing) the payments under which by the person who issues or makes the security are derived mainly from the income or receipts of a mortgage or pool of mortgages;

(iv) an interest in a trust or a debt security (whether or not in writing);

(v) an instrument or property that creates an interest in, or charge over an interest in, a trust;

(vi) a debt security (whether or not in writing);

(vii) any other property to which paragraph (a) or (b) or subparagraph (i), (ii) or (iii) applies.

5D.1.03(2)   [What mortgage-backed security does not include]  

However, a mortgage-backed security does not include an instrument or property consisting of any of the following:

(a) a mortgage;

(b) the transfer of a mortgage;

(c) a declaration of trust.

REGULATION 5D.1.04   INTERACTION BETWEEN TRUSTEE COMPANY PROVISIONS AND STATE AND TERRITORY LAWS  

5D.1.04(1)   [Provisions intended to apply to exclusion of State or Territory laws]  

For paragraph 601RAE(4)(a) of the Act, the trustee company provisions are intended to apply to the exclusion of the provisions of State or Territory laws prescribed in Schedule 8AB.

5D.1.04(2)   [Provisions not intended to apply to exclusion of State or Territory laws in sch 8AC]  

For paragraph 601RAE(4)(b) of the Act, the trustee company provisions are intended not to apply to the exclusion of the State or Territory laws, or the provisions of State or Territory laws, prescribed in Schedule 8AC, so far as those laws relate to an administrator of a person's estate.

5D.1.04(3)   [Provisions not intended to apply to exclusion of State or Territory laws in Sch 8AD]  

For paragraph 601RAE(4)(b) of the Act, the trustee company provisions are intended not to apply to the exclusion of the State or Territory laws, or the provisions of State or Territory laws, prescribed in Schedule 8AD.

PART 5D.2 - POWERS ETC OF LICENSED TRUSTEE COMPANIES  

Division 2.1 - Annual Information Returns  

REGULATION 5D.2.01   OBLIGATION ON LICENSED TRUSTEE COMPANY TO PROVIDE AN ANNUAL INFORMATION RETURN IF REQUESTED  

5D.2.01(1)    
For section 601SAB of the Act, this regulation prescribes the obligation of a licensed trustee company to provide an annual information return.

5D.2.01(2)    
The licensed trustee company commits an offence if:

(a) a person mentioned in subregulation (3) requests an annual information return; and

(b) the company does not provide the return to the person in accordance with the requirements in subregulations (5), (6) and (8) and regulation 5D.2.02.

Penalty: 500 penalty units.

5D.2.01(2A)    

A person commits an offence if the person is involved in a contravention of subregulation (1) by a licensed trustee company.

Penalty:

(a) for an individual - 50 penalty units; and

(b) for a body corporate - 500 penalty units.

5D.2.01(3)    
A person may request an annual information return if the person is one of the following:

(a) in the case of the estate of a deceased person:

(i) if the person died testate - a beneficiary under the deceased person's will; or

(ii) if the person died intestate - a person who, under a law of a State or Territory, has, is entitled to, or claims to be entitled to, an interest in the deceased person's estate; or

(iii) a person who has commenced a proceeding in a court, under a law of a State or Territory, to seek to be included as a beneficiary of the deceased person's estate;

(b) in relation to a charitable trust:

(i) the settlor, or one of the settlors, of the trust; or

(ii) a person who, under the terms of the trust, has power to appoint or remove a trustee of the trust or to vary (or cause to be varied) any of the terms of the trust; or

(iii) a person, or a person's appointed successor, who is named in the instrument establishing the trust as a person who must, or may, be consulted by the trustee or trustees before distributing or applying money or other property for the purposes of the trust;

(c) in the case of any other trust:

(i) the settlor, or one of the settlors, of the trust; or

(ii) a person who, under the terms of the trust, has power to appoint or remove a trustee of the trust or to vary (or cause to be varied) any of the terms of the trust; or

(iii) a beneficiary of the trust.

5D.2.01(4)    
The person must make the request for an annual information return in writing to the licensed trustee company and may indicate in the request which one of the following forms of return is required:

(a) by sending it to the person's postal address;

(b) by emailing it to a nominated email address.

5D.2.01(5)    
The annual information return must be provided within 30 days after the request from the person is received by the licensed trustee company, and then annually.

5D.2.01(6)    
The annual information return must be for the last financial year that the licensed trustee company has provided a service to the person who has requested the return.

5D.2.01(7)    
However, the licensed trustee company is not required to provide an annual information return covering a period:

(a) before 1 July 2010; or

(b) before it provided a service to the person.

5D.2.01(8)    
The annual information return must be provided as follows:

(a) if requested in a particular form - in the form requested;

(b) in all other cases - by sending it to the person's postal address.

REGULATION 5D.2.02  

5D.2.02   INFORMATION TO BE INCLUDED IN ANNUAL INFORMATION RETURN  

The annual information return provided by a licensed trustee company must include the following:

(a) for a person mentioned in subparagraphs 5D.2.01(3)(a)(i) and (ii) and (c)(iii):

(i) details of income earned on the person's interest in the trust or estate; and

(ii) details of expenses in operating the trust or estate in relation to the person's interest in the trust or estate; and

(iii) the net value of the person's interest in the trust or estate;

(b) for any other person mentioned in subregulation 5D.2.01(3):

(i) details of income earned on the trust's assets; and

(ii) details of expenses in operating the trust's assets, including remuneration, commission or other benefits received by the trustee company; and

(iii) the net value of the trust's assets;

(c) if required under the terms of the trust - a copy of the trust's audit report and financial statements for the year.

Division 2.2 - Common funds  

REGULATION 5D.2.03  

5D.2.03   COMMON FUNDS  

This Division is made for section 601SCC of the Act.

REGULATION 5D.2.04   ESTABLISHMENT OF COMMON FUNDS  

5D.2.04(1)   [Licensed trustee company may establish]  

A licensed trustee company may:

(a) establish accounts within a common fund; and

(b) establish a common fund on the basis of units or another suitable basis.

5D.2.04(2)   [Money held on trust]  

If the common fund includes money that is not estate money and that is not otherwise held in trust, the licensed trustee company is taken to hold the money in trust for the person on whose behalf the money is invested in the common fund.

REGULATION 5D.2.05   DECIDING DETAILS ABOUT COMMON FUNDS  

5D.2.05(1)    
A licensed trustee company that is establishing a common fund commits an offence if, at the time of establishing the fund, it does not ensure that its Board makes a decision, in writing, about the following:

(a) any limitation on the amount of money that will form the common fund;

(b) the investment strategy for the common fund, including the following:

(i) the class of investments in which the common fund may be invested;

(ii) the procedure for valuing the investments;

(iii) if the trustee company is to seek expert advice about proposed investments - the type of expert advice to be sought;

(c) the amount of fees that are to be paid by:

(i) the common fund for the provision of traditional trustee company services; and

(ii) each account in the common fund;

(d) the manner in which a withdrawal can be made from the common fund;

(e) the procedure for auditing the common fund;

(f) if the common fund is to have a limited life - the duration of the common fund;

(g) if the common fund is to have a minimum amount that may be invested in the fund on account of each estate - the minimum amount.

Penalty: 500 penalty units.

5D.2.05(2)    
The licensed trustee company commits an offence if it does not:

(a) within 14 days of making the decision:

(i) send a copy of the decision to ASIC; and

(ii) publish a copy of the decision on its website; and

(b) if requested by a person entitled to request an annual information return under subregulation 5D.2.01(3), make a copy of the decision available to the person within 30 days of the request being received.

Penalty: 500 penalty units.

5D.2.05(3)    

A person commits an offence if the person is involved in a contravention of subregulation (1) or (2) by a licensed trustee company.

Penalty:

(a) for an individual - 50 penalty units; and

(b) for a body corporate - 500 penalty units.

REGULATION 5D.2.06   OPERATION OF COMMON FUNDS  

Compliance with the Act and regulations

5D.2.06(1)    
A licensed trustee company may, from time to time and without liability for breach of trust, pay into or withdraw an amount from a common fund in accordance with the Act and these Regulations.

Note: Payments into a common fund may be prohibited where this is contrary to the conditions on which the company holds the money: see subsection 601SCB(3) of the Act.

Withdrawals

5D.2.06(2)    
A licensed trustee company may do the following:

(a) withdraw an amount from a common fund for a purpose relating to a trust or estate that is part of the fund and is managed or administered by the company;

(b) withdraw from a common fund an amount at credit in the fundon account of a trust matter or a managed estate and invest the amount on the separate account of the matter or estate.

5D.2.06(3)    
A licensed trustee company commits an offence if it pays interest from the common fund on withdrawn amounts on or after the day of the withdrawal.

Penalty: 500 penalty units.

Derivatives

5D.2.06(4)    
A licensed trustee company commits an offence if:

(a) when managing and administering a common fund, the trustee company enters into a derivative; and

(b) at the time of entering into the derivative:

(i) the trustee company did not do so for the purpose of managing a financial risk arising from:

(A) variations in the expenses of the common fund; or

(B) variations in the revenue obtainable from investments made by the common fund; and

(ii) the arrangement was not in accordance with the trustee company's equitable and other duties as a trustee under the relevant State or Territory provisions set out in Schedule 8AE.

Penalty: 500 penalty units.

Applying income from investment

5D.2.06(5)    
A licensed trustee company commits an offence if it applies income from investment of a common fund other than for:

(a) payment of the company's fee for the proper administration and management of the fund under the Act, regulations and terms of the common fund, proportionate to the value of the work done or the services rendered; and

(b) allocation in accordance with subregulation (6) in relation to the accounts from which the fund is derived.

Penalty: 500 penalty units.

5D.2.06(6)    

For paragraph (5)(b), the allocation must be made at intervals not exceeding 6 months.

Investments

5D.2.06(7)    
A licensed trustee company commits an offence if:

(a) the trustee company invests money committed to its administration or management; and

(b) the investment is:

(i) not in accordance with a decision of the Board made for the purpose of regulation 5D.2.05; and

(ii) not made in a manner in which trust funds may be invested by a trustee under the relevant State or Territory provisions set out in Schedule 8AE.

Penalty: 500 penalty units.

Valuation of investments

5D.2.06(8)    
A licensed trustee company commits an offence if it does not comply with the following requirements about the valuation of investments of common funds:

(a) by the third business day of each month, the trustee company must decide the value of the investments in each common fund as at the first business day of the month;

(b) subject to subregulation (9), in deciding the value of securities listed on a financial market for a month, the trustee company must take the last sale price of the first business day of the month published by the market operator as the value of the listed securities;

(c) the trustee company must make withdrawals from the common fund and further investments on the basis of the last valuation of investments made by the company.

Penalty: 500 penalty units.

5D.2.06(9)    
The requirement in paragraph 8(b) does not apply if, in a particular month, the licensed trustee company decides it is in the best interests of each account in the common fund that a sale price used for the valuation be one taken later in that month.

Realising investments

5D.2.06(10)    
A licensed trustee company may sell investments belonging to a common fund.

5D.2.06(11)    
A licensed trustee company that has realised an investment in a common fund commits an offence if it does not credit or debit a profit or loss from the investment to the unit holders of the common fund:

(a) in proportion to the amount invested in the common fund by the unit holders at the time of the realisation; and

(b) within 14 days of the realisation.

Penalty: 500 penalty units.

Offence for involvement in contravention

5D.2.06(12)    

A person commits an offence if the person is involved in a contravention of subregulation (3), (4), (5), (7), (8) or (11) by a licensed trustee company.

Penalty:

(a) for an individual - 50 penalty units; and

(b) for a body corporate - 500 penalty units.

REGULATION 5D.2.07   REGISTER OF INVESTMENTS  

5D.2.07(1)    
A licensed trustee company commits an offence if it does not maintain a register of investments for each common fund in accordance with subregulation (2).

Penalty: 500 penalty units.

5D.2.07(2)    
The register must contain:

(a) a record identifying each investment made by the common fund; and

(b) details of amounts held to the credit of the common fund.

Note: For other obligations relating to common funds: see section 601SCB of the Act.

5D.2.07(3)    

A person commits an offence if the person is involved in a contravention of subregulation (1) by a licensed trustee company.

Penalty:

(a) for an individual - 50 penalty units; and

(b) for a body corporate - 500 penalty units.

REGULATION 5D.2.08   FINANCIAL REPORTS  

5D.2.08(1)    
A licensed trustee company must comply with this regulation in relation to each common fund established by the company that is not a registered scheme.

Account keeping

5D.2.08(2)    
The licensed trustee company commits an offence if it does not keep accounts that:

(a) correctly record and explain its transactions for the common fund and the fund's financial position and performance; and

(b) would enable true and fair financial statements to be prepared and audited.

Penalty: 500 penalty units.

Auditing

5D.2.08(3)    
The licensed trustee company commits an offence if it does not:

(a) have the financial statements for a financial year for the common fund audited by a registered company auditor; and

(b) obtain an auditor's report for the financial statements.

Penalty: 500 penalty units.

Lodging financial statements with ASIC

5D.2.08(4)    
The licensed trustee company commits an offence if it does not lodge the audited financial statements for the fund with ASIC within 3 months of the end of the financial year.

Penalty: 500 penalty units.

Request for financial information

5D.2.08(5)    
A person who is entitled to request an annual information return under subregulation 5D.2.01(3) may request, in writing, that the licensed trustee company provide the information mentioned in subregulation (7).

5D.2.08(6)    
The licensed trustee company commits an offence if it does not provide the information mentioned in subregulation (7) to the person within 30 days of receiving the request under subregulation (5).

Penalty: 500 penalty units.

5D.2.08(7)    
The information that must be provided is:

(a) a copy of the common fund's financial statements and audit report; and

(b) the classes of investments in which the common fund is invested and how the investment is divided between each class; and

(c) the trustee company's investment strategy for the common fund.

Offence for involvement in contravention

5D.2.08(8)    

A person commits an offence if the person is involved in a contravention of subregulation (2), (3), (4), or (6) by a licensed trustee company.

Penalty:

(a) for an individual - 50 penalty units; and

(b) for a body corporate - 500 penalty units.

REGULATION 5D.2.09  

5D.2.09   ARM'S LENGTH TRANSACTIONS  
(Omitted by SLI 2012 No 43, Sch 2[4] (effective 12 April 2012).)

PART 5D.3 - REGULATION OF FEES CHARGED BY LICENSED TRUSTEE COMPANIES  

REGULATION 5D.3.01  

5D.3.01   MODIFICATION OF SECTION 601TAB OF THE ACT: DISCLOSURE TO CLIENTS OF CHANGED FEES  

For paragraph 601YAB(1)(b) of the Act, Chapter 5D of the Act applies as if section 601TAB of the Act were modified by inserting after subsection (3) the following subsections:

'(4)
A licensed trustee company is not required to comply with paragraph (1)(a) or (b) or (3)(a) in relation to a client who is a lost client, or an agent who is a lost agent.

(5)
In subsection (4):

lost client
means a client who, at a particular time, is uncontactable.

lost agent
means an agent who, at a particular time, is uncontactable.

(6)
In subsection (5):

uncontactable,
in relation to a person who is a client or an agent of a licensed trustee company, means:

(a) the licensed trustee company:

(i) never had an address for the person; or

(ii) sent at least 1 written communication to the person's last known address which was returned unclaimed and the person has not, since the communication, given the company a contact address; and

(b) if the person is an agent, the licensed trustee company made a reasonable attempt to get the agent's address from the agent's client or the client's carers.'

PART 5D.4 - OBLIGATIONS OF RECEIVING COMPANY AFTER TRANSFER  

REGULATION 5D.4.01   PRESERVING RIGHTS UNDER DISPUTE RESOLUTION SYSTEMS AND ARRANGEMENTS FOR COMPENSATION  

5D.4.01(1)    
This regulation applies if ASIC makes a determination under subsection 601WBA(1) of the Act that there is to be a transfer of estate assets and liabilities from a transferring company to a receiving company.

5D.4.01(2)    

For the purposes of section 601SAB of the Act, the obligations of the receiving company include the provision to retail clients of access to the following in relation to a complaint arising from the provision of traditional trustee services by the transferring company:

(a)    the arrangements for compensation the receiving company is required to have under subsection 912B(1) of the Act;

(b)    the dispute resolution system the receiving company is required to have under subparagraph 912A(1)(g)(i) of the Act.

5D.4.01(3)    
(Repealed by FRLI No F2023L01458, Sch 1[84] (effective 1 November 2023).)

PART 5D.5 - ASIC-APPROVED TRANSFERS OF ESTATE ASSETS AND LIABILITIES  

REGULATION 5D.5.01  

5D.5.01   NOTICE OF CERTIFICATE  

For the purposes of paragraph 601WBH(1)(c) of the Act, ASIC must publish a notice mentioned in that paragraph on the ASIC website.

CHAPTER 6 - TAKEOVERS  

PART 6.2 - EXCEPTIONS TO THE PROHIBITION  

REGULATION 6.2.01A  

6.2.01A   PRESCRIBED REQUIREMENTS  

For the purposes of paragraph (b) of item 19A of the table in section 611 of the Act, the requirement that the company is an eligible CSF company at the time of the acquisition of the relevant interest is prescribed.

REGULATION 6.2.01  

6.2.01   PRESCRIBED CIRCUMSTANCES (ACT s 611)  
For item 20 in the table in section 611 of the Act, the acquisition of a relevant interest in voting shares in a following body corporate is prescribed:

(a) a body corporate that is incorporated within Australia or an external Territory and is a public authority or an instrumentality or agency of the Crown in right of a State or Territory;

(b) a corporation sole;

(f) a foreign company or recognised company in respect of which an exemption from compliance with subsection 61(1) of the Co-operation Act 1923 of New South Wales is in force;

(g) a society within the meaning of The Co-operative and Other Societies Act of 1967 or The Co-operative Housing Societies Act of 1958 of Queensland;

(i) an association within the meaning of The Primary Producers' Co-operative Associations Act of 1923 of Queensland;

(j) an association, society, institution or body incorporated under the Associations Incorporation Act 1981 of Queensland;

(k) a body incorporated or deemed to be incorporated by or under a law of South Australia other than the Corporations Law of South Australia, the Companies Code (South Australia) or a corresponding previous enactment of South Australia;

(l) a society (other than a society that is a financial institution) within the meaning of section 5 of the Building Societies Act 1976 of Western Australia;

(n) a co-operative company registered under Part VI of the Companies (Co-operative) Act 1943 or a corresponding previous enactment of Western Australia;

(o) a society registered under the Co-operative and Provident Societies Act 1903 of Western Australia;

(p) an association, society, institution or body incorporated under the Associations Incorporation Act 1895 of Western Australia;

(q) a trustee bank registered under the Trustee Banks Act 1984 of Tasmania;

(r) a society (other than a society that is a financial institution) registered under the Co-operative Industrial Societies Act 1928 of Tasmania;

(ra) a society registered under the Co-operative Housing Societies Act 1963 of Tasmania;

(s) an association, society, institution or body incorporated under the Associations Incorporations Act 1964 of Tasmania;

(t) a body corporate created by section 75Q of the Conveyancing and Law of Property Act 1884 of Tasmania;

(u) a society (other than a society that is a financial institution) registered under the Co-operative Societies Act 1939 of the Australian Capital Territory;

(v) an association, society, institution or body incorporated under the Associations Incorporation Act 1953 of the Australian Capital Territory;

(w) a corporation constituted under the Unit Titles Act 1970 of the Australian Capital Territory;

(x) a society registered under the Co-operatives Act 1997 of the Northern Territory.

REGULATION 6.2.02  

6.2.02   OTHER PRESCRIBED CIRCUMSTANCES (ACT s 611)  
For item 20 in the table in section 611 of the Act, the acquisition by a person of a relevant interest in voting shares in a body corporate that results from the person holding an office specified in Schedule 3 is prescribed.

PART 6.5 - THE TAKEOVER PROCEDURE  

PART 6.6 - VARIATION OF OFFERS  

REGULATION 6.6.01   RIGHT TO WITHDRAW ACCEPTANCE  

6.6.01(1)   [Form of notice in accordance with operating rules]  

For paragraph 650E(3)(a) of the Act, a notice under paragraph 650E(2)(a) of the Act relating to securities entered on a register or subregister of a prescribed CS facility must be in a form approved by the operating rules of that prescribed CS facility for Part 6.6 of the Act (which may include an electronic form).

6.6.01(2)   [Return of securities]  

For paragraph 650E(4)(a) of the Act, if securities are entered on a register or subregister of a prescribed CS facility, a person to whom section 650E of the Act applies must take the action that the operating rules of the prescribed CS facility require in relation to the return of the securities.

6.6.01(3)   [Withdrawal of acceptance of offer]  

For paragraph 650E(5)(a) of the Act, if a person withdraws an acceptance of an offer, the bidder must take any action that the operating rules of the prescribed CS facility require in relation to any of the securities:

(a) to which the acceptance relates; and

(b) that are entered on a register or subregister of the prescribed CS facility.

PART 6.8 - ACCEPTANCES  

REGULATION 6.8.01  

6.8.01   ACCEPTANCE OF OFFERS MADE UNDER OFF-MARKET BID  
For paragraph 653A(b) of the Act, if the operating rules of a prescribed CS facility require an acceptance of an offer to which paragraph 653A(a) applies to be made in a particular way, to the extent that the acceptance relates to the securities in the offer, the acceptance must be made in that way.

REGULATION 6.8.02  

6.8.02   ACCEPTANCES BY TRANSFEREES AND NOMINEES OF OFFERS MADE UNDER OFF-MARKET BID  
For paragraph 653B(4)(a) of the Act, a notice relating to securities entered on a register or subregister of a prescribed CS facility must be in a form approved by the operating rules of the prescribed CS facility for Part 6.8 of the Act (which may include an electronic form).

PART 6.10 - REVIEW AND INTERVENTION  

REGULATION6.10.01  

6.10.01   APPLICATION FOR REVIEW OF TAKEOVERS PANEL DECISION  

For subsection 657EA(3) of the Act, an application for review of a decision of the Takeovers Panel must not be made later than 2 business days after the day on which the decision was made.

CHAPTER 6A - COMPULSORY ACQUISITIONS AND BUY-OUTS  

PART 6A.1 - COMPULSORY ACQUISITIONS AND BUY-OUTS AFTER TAKEOVER BID  

REGULATION 6A.1.01  

6A.1.01   TERMS ON WHICH SECURITIES TO BE ACQUIRED  
For paragraph 661C(4)(a) of the Act, an election relating to securities entered on an electronic register or subregister of a prescribed CS facility must be in an electronic form approved by the operating rules of the prescribed CS facility.

CHAPTER 6CA - CONTINUOUS DISCLOSURE  

REGULATION 6CA.1.01  

6CA.1.01   CONTINUOUS DISCLOSURE: OTHER DISCLOSING ENTITIES  

For paragraph 675(2)(d) of the Act, the disclosure of information under section 675 of the Act is not required if:

(a) a reasonable person would not expect the information to be disclosed; and

(b) the information is confidential; and

(c) at least 1 of the following applies:

(i) the disclosure of the information would contravene a law;

(ii) the information is about a matter of supposition;

(iii) the information is not definite enough to make disclosure appropriate;

(iv) the information relates to an incomplete proposal or a matter that is in the course of negotiation;

(v) the information was prepared or created for the internal management purposes of the entity;

(vi) the information is a trade secret.

CHAPTER 6D - FUNDRAISING  

PART 6D.2 - DISCLOSURE TO INVESTORS ABOUT SECURITIES  

REGULATION 6D.2.01  

6D.2.01   EXEMPTION - MEMBER SHARES  
Part 6D.2 of the Act does not apply to an offer of a member share within the meaning given by regulation 12.8.03.

REGULATION 6D.2.02  

6D.2.02   EXEMPTION - FOREIGN COMPANIES  
Part 6D.2 of the Act does not apply to an offer under a dividend reinvestment plan or bonus share plan of fully-paid shares in a foreign company to an existing holder of shares in the foreign company.

REGULATION 6D.2.03   SOPHISTICATED INVESTORS  

6D.2.03(1)   [Net assets threshold]  

For subparagraph 708(8)(c)(i) of the Act, $2.5 million is specified.

6D.2.03(2)   [Gross income threshold]  

For subparagraph 708(8)(c)(ii) of the Act, $250,000 is specified.

Note: Under subsection 708(8) of the Act, an offer of a body's securities does not need disclosure to investors under Part 6D.2 of the Act if it appears from a certificate given by a qualified accountant no more than 6 months before the offer is made that the person to whom the offer is made:

(a) has net assets of at least the amount specified in regulations made for the purposes of subparagraph 708(8)(c)(i); or

(b) has a gross income for each of the last 2 financial years of at least the amount specified in regulations made for the purposes of subparagraph 708(8)(c)(ii).

REGULATION 6D.2.04   SIMPLE CORPORATE BONDS - BASE PROSPECTUS  

6D.2.04(1)    
For subsections 713C(5) and (6) of the Act, this regulation specifies:

(a) the information that must be contained in a base prospectus for simple corporate bonds; and

(b) the statements that must be set out in a base prospectus for simple corporate bonds.

6D.2.04(2)    
Subregulation (1) does not prevent a base prospectus from containing other material or setting out other statements.

6D.2.04(3)    
A base prospectus must contain a table of contents and sections dealing with the following matters:

(a) Section 1: What you need to know;

(b) Section 2: About the bonds;

(c) Section 3: About the issuer;

(d) Section 4: Risks;

(e) Section 5: Other information you should consider;

(f) Section 6: Glossary.

Section 1: What you need to know

6D.2.04(4)    
The following statements, or statements to the same effect as the following statements, must be set out in section 1 of a base prospectus:

(a) This document will be the base prospectus for these bonds for 3 years from the time it is lodged with the Australian Securities and Investments Commission.

(b) There will be a separate offer-specific prospectus for each offer of bonds during the life of this base prospectus.

(c) To make an informed investment decision about these bonds, you should read the offer-specific prospectus and this base prospectus before investing.

(d) This base prospectus alone is not an offer. The offer is contained in the offer-specific prospectus, this base prospectus and other information that is incorporated by reference into the offer-specific prospectus and this base prospectus.

(e) To find out more about the pros and cons of investing in corporate bonds, visit ASIC's MoneySmart website: http://moneysmart.gov.au.

Section 2: About the bonds

6D.2.04(5)    
The following information must be contained in section 2 of a base prospectus:

(a) information on the program of the bonds (if applicable), including any pre-planned future issues of bonds;

(b) details of the key aspects of the bonds, including information about the following matters:

(i) the interaction between the coupon rate and yield;

(ii) the interest rate of the bonds;

(iii) the term of the bonds;

(iv) the maturity and redemption of the bonds;

(v) events that will constitute default;

(vi) guarantees in relation to the bonds and information about any guarantors;

(vii) security and ranking.

Note: If information mentioned in this subregulation is contained in another document that has been lodged with ASIC, a base prospectus may refer to that lodged document instead of setting out the information (see section 713E of the Act).

Section 3: About the issuer

6D.2.04(6)    
The following information must be contained in section 3 of a base prospectus:

(a) brief information about the issuing body that includes a summary of the body's:

(i) business; and

(ii) management personnel (including directors and senior managers); and

(iii) business strategy; and

(iv) governance arrangements;

(b) the trust deed relating to the issuing body;

(c) an explanation of the role of the trustee;

(d) additional information about the issuing body that relates to the investment decision, and where that information can be obtained, including:

(i) a reference to the issuing body's annual report and financial report; and

(ii) a reference to any half-year report that the issuing body lodged with ASIC after it lodged an annual financial report and before it lodged the most recent copy of the base prospectus with ASIC; and

(e) the key financial ratios, calculated in accordance with regulation 6D.2.06, that are relevant to the issuing body, accompanied by:

(i) an explanation of those key financial ratios; and

(ii) information about how a change to those key financial ratios may affect the bonds to be issued under the base prospectus.

Note: If information mentioned in this subregulation is contained in another document that has been lodged with ASIC, a base prospectus may refer to that lodged document instead of setting out the information (see section 713E of the Act).

6D.2.04(7)    
The following statements, or statements to the same effect as the following statements, must be set out in section 3 of a base prospectus:

A publicly listed entity must release financial reports and continuously disclose information that may have an impact on its share or bond price. This information is available publicly on the relevant market exchange. You should consider this information when making an investment decision about bonds. While this information is important, it is not considered part of the disclosure document for the offer of bonds using this base prospectus.

Section 4: Risks

6D.2.04(8)    
The following information must be contained in section 4 of a base prospectus:

(a) the main risks associated with bonds and an explanation of those risks;

(b) the issuing body's main business risks;

(c) if other risks specific to bonds may be relevant to a consumer's investment decision - an explanation of those other risks;

(d) if other business risks may be relevant to a consumer's investment decision - an explanation of those other risks.

Note: If information mentioned in this subregulation is contained in another document that has been lodged with ASIC, a base prospectus may refer to that lodged document instead of setting out the information (see section 713E of the Act).

Section 5: Other information you should consider

6D.2.04(9)    
The following information must be contained in section 5 of a base prospectus:

(a) an explanation of the consequences, relating to taxation, of investing in bonds;

(b) information relating to privacy in general and the issuing body's obligations under privacy laws;

(c) any applicable selling restrictions.

Note: If information mentioned in this subregulation is contained in another document that has been lodged with ASIC, a base prospectus may refer to that lodged document instead of setting out the information (see section 713E of the Act).

6D.2.04(10)    
The following statements, or statements to the same effect as the following statements, must be set out in section 5 of a base prospectus:

(a) More information on the tax implications associated with investing in bonds can be found on the Australian Taxation Office's website: http://www.ato.gov.au.

(b) The following is a list of material referred to, but not set out in full, in this base prospectus. However, the material (or relevant extracts of the material) is incorporated by reference and, as such, forms part of the offer of bonds covered by this base prospectus.

6D.2.04(11)    
Section 5 of a base prospectus must contain a list of material referred to, but not set out in full, in the prospectus.

Section 6: Glossary

6D.2.04(12)    
The information that section 6 of a base prospectus must contain is information that is adequate to explain the meanings of terms required to understand the content of:

(a) the base prospectus; or

(b) the offer-specific prospectus that is combined with the base prospectus to create a 2-part simple corporate bonds prospectus.

Note: See section 713B of the Act.

REGULATION 6D.2.05   SIMPLE CORPORATE BONDS - OFFER-SPECIFIC PROSPECTUS  

6D.2.05(1)    
For subsections 713D(6) and (7) of the Act, this regulation specifies:

(a) the information that must be contained in an offer-specific prospectus for an offer of simple corporate bonds; and

(b) the statements that must be set out in an offer-specific prospectus for an offer of simple corporate bonds.

6D.2.05(2)    
Subregulation (1) does not prevent an offer-specific prospectus from containing other material or setting out other statements.

6D.2.05(3)    
An offer-specific prospectus for an offer of simple corporate bonds must contain a table of contents and sections dealing with the following matters:

(a) Section 1: What you need to know;

(b) Section 2: Key dates and offer details;

(c) Section 3: Offer-specific information you should consider.

Section 1: What you need to know

6D.2.05(4)    
The following statements, or statements to the same effect as the following statements, must be set out in section 1 of an offer-specific prospectus:

(a) This offer-specific prospectus is not a summary of the information contained in the base prospectus.

(b) This offer-specific prospectus is only relevant for this offer of bonds.

(c) A base prospectus applies to this offer of bonds.

(d) This offer-specific prospectus provides offer details, key dates and other relevant information for the offer. The base prospectus for this offer provides additional information that is also critical to your decision. You should take all of the information in the base prospectus into consideration before making your decision in relation to this offer.

(e) To find out more about the pros and cons of investing in corporate bonds, visit ASIC's MoneySmart website: http://moneysmart.gov.au.

Section 2: Key dates and offer details

6D.2.05(5)    
The following information must be contained in section 2 of an offer-specific prospectus:

(a) the terms of the offer, which must include the following:

(i) the name of the issuing body;

(ii) the size of the series, or tranche, to which the offer relates;

(iii) the face value of the bonds;

(iv) the term of the bonds;

(v) the maturity date of the bonds;

(vi) guarantees in relation to the bonds and information about any guarantors;

(vii) the interest rate of the bonds;

(viii) interest payment dates;

(ix) events that will constitute default;

(x) details of any existing security;

(xi) the structure of the offer;

(xii) the minimum size of an application for the bonds;

(xiii) the prescribed financial market on which the bonds will be listed;

(b) a short explanation of the circumstances in which the bonds can be redeemed;

(c) any fees and costs associated with the offer;

(d) either:

(i) if a provision of the base prospectus contains information about any selling restrictions - a reference to the provision; or

(ii) if subparagraph (i) does not apply - information about any selling restrictions;

(e) an explanation of where investors can obtain additional information about the offer, including:

(i) a reference to financial advisors or other professional advisors; and

(ii) the contact details of the issuing body.

Note: If information mentioned in this subregulation is contained in another document that has been lodged with ASIC, an offer-specific prospectus may refer to that lodged document instead of setting out the information (see section 713E of the Act).

Section 3: Offer-specific information you should consider

6D.2.05(6)    
The following information must be contained in section 3 of an offer-specific prospectus:

(a) any significant information necessary to update the information in the base prospectus;

(b) any notices that the issuing body has issued to explain changes that have occurred to the base prospectus since it was lodged with ASIC;

(c) the key financial ratios, calculated in accordance with regulation 6D.2.06, that are relevant to the issuing body, accompanied by:

(i) details of any change in those key financial ratios since the last offer-specific prospectus was issued; or

(ii) if no offer-specific prospectus has previously been issued - details of any change in those key financial ratios compared with the key financial ratios at the time the base prospectus was lodged with ASIC;

(d) an explanation of how the issuing body will use the funds raised by issuing the bonds;

(e) a brief summary of the effect of the offer on the issuing body;

(f) the ranking of the bonds and any other debt on issue;

(g) an explanation of any changes to the risks disclosed in the base prospectus;

(h) the amount that anyone has paid or agreed to pay, or the nature and value of any benefit that anyone has given or agreed to give, to:

(i) any directors or proposed directors of the issuing body; or

(ii) a person named in the prospectus as performing a function in a professional, advisory or other capacity in connection with the preparation or distribution of the prospectus; or

(iii) a promoter of the issuing body; or

(iv) an underwriter (but not a sub-underwriter) to the issue or sale or a financial services licensee named in the prospectus as a financial services licensee involved in the issue or sale.

Note: If information mentioned in this subregulation is contained in another document that has been lodged with ASIC, an offer-specific prospectus may refer to thatlodged document instead of setting out the information (see section 713E of the Act).

REGULATION 6D.2.06   SIMPLE CORPORATE BONDS - KEY FINANCIAL RATIOS RELEVANT TO ISSUING BODY  

6D.2.06(1)    
For paragraphs 6D.2.04(6)(e) and 6D.2.05(6)(c), the key financial ratios that are relevant to an issuing body are:

(a) the gearing ratio; and

(b) the working capital ratio; and

(c) the interest cover ratio.

6D.2.06(2)    
The key financial ratios referred to in subregulation (1) must be calculated in accordance with subregulations (3) to (5), based on the issuing body's most recent financial statements or, if applicable, the issuing body's consolidated financial statements.

6D.2.06(3)    
The gearing ratio must be calculated using the following formula:

Total liabilities

Total equity

6D.2.06(4)    
The working capital ratio must be calculated using the following formula:

Current assets

Current liabilities

6D.2.06(5)    
The interest cover ratio must be calculated using the following formula:

EBITDA

Net interest expense

where:

EBITDA
means earnings before net interest expense, taxes, depreciation and amortisation, for the period to which the issuing body's most recent financial statements relate.

net interest expense
means the interest expense net of interest revenue, taking account of any related hedging arrangements recognised in the profit and loss statements, for the period to which the issuing body's most recent financial statements relate.

Note: The issuing body's most recent financial statements may relate to a period that is less than 12 months.

PART 6D.3A - CROWD-SOURCED FUNDING  

REGULATION 6D.3A.01   OFFERS THAT ARE ELIGIBLE TO BE MADE UNDER PART 6D.3A OF THE ACT  

Class of securities

6D.3A.01(1)    
For the purposes of paragraph 738G(1)(c) of the Act, this subregulation specifies fully-paid ordinary shares as a class of securities.

Note: Paragraph 738G(1)(c) of the Act requires securities to be of a class specified in the regulations for an offer for the issue of the securities to be eligible to be made under Part 6D.3A of the Act.

Other requirements

6D.3A.01(2)    
For the purposes of paragraph 738G(1)(f) of the Act, this subregulation specifies the requirement that the funds sought to be raised by the offer are not intended by the company to be used, to any extent, by:

(a) the company to issue a credit facility (within the meaning of regulation 7.1.06) to a related party of the company that is not a wholly-owned subsidiary of the company; or

(b) a related party of the company to issue a credit facility (within the meaning of regulation 7.1.06) to the company or to another related party of the company.

REGULATION 6D.3A.02   CONTENTS OF CSF OFFER DOCUMENT - GENERAL  

6D.3A.02(1)    
For the purposes of subsection 738J(2) of the Act, this regulation, and regulations 6D.3A.03, 6D.3A.04, 6D.3A.05 and 6D.3A.06, specify the information that must be contained in a CSF offer document for a CSF offer of securities (the securities on offer ) made by a company (the offering company ).

6D.3A.02(2)    
Subregulation (1) does not prevent a CSF offer document from containing other information.

Note 1: The other information may be contained in a section identified in subregulation (3), in another section of the offer document or in an appendix to the offer document.

Note 2: An appendix to the offer document is part of the offer document.

6D.3A.02(3)    
The offer document must contain a table of contents and sections dealing with the following matters:

(a) Section 1: Risk warnings;

(b) Section 2: Information about the offering company;

(c) Section 3: Information about the offer;

(d) Section 4: Information about investor rights.

6D.3A.02(4)    

Information required to be contained in a section of the offer document may be presented in any order within the section.

Note: The contents of the CSF offer document may be published in a commonly accessible digital format.

REGULATION 6D.3A.03  

6D.3A.03   CONTENTS OF CSF OFFER DOCUMENT - SECTION 1: RISK WARNINGS  

The following statement must be set out in section 1 of the offer document:

"Crowd-sourced funding is risky. Issuers using this facility include new or rapidly growing ventures. Investment in these types of ventures is speculative and carries high risks.

You may lose your entire investment, and you should be in a position to bear this risk without undue hardship.

Even if the company is successful, the value of your investment and any return on the investment could be reduced if the company issues more shares.

Your investment is unlikely to be liquid. This means youare unlikely to be able to sell your shares quickly or at all if you need the money or decide that this investment is not right for you.

Even though you have remedies for misleading statements in the offer document or misconduct by the company, you may have difficulty recovering your money.

There are rules for handling your money. However, if your money is handled inappropriately or the person operating the platform on which this offer is published becomes insolvent, you may have difficulty recovering your money.

Ask questions, read all information given carefully, and seek independent financial advice before committing yourself to any investment.".

REGULATION 6D.3A.04   CONTENTS OF CSF OFFER DOCUMENT - SECTION 2: INFORMATION ABOUT THE OFFERING COMPANY  

6D.3A.04(1)    
The following information must be contained in section 2 of the offer document:

(a) the name, ACN and type of the offering company;

(b) the address of the registered office of the offering company;

(c) the address of the principal place of business of the offering company;

(d) the names of each of the following persons, as well as his or her skills and experience relevant to the management of the offering company:

(i) each director of the offering company, and any person proposed by the offering company to be a director of the offering company;

(ii) each senior manager of the offering company, and any person proposed by the offering company to be a senior manager of the offering company;

(e) a description of the offering company's business and its organisational structure;

(f) a description, or a summary, of the capital structure of the offering company (relating to both equity and debt in the offering company), including the classes (if any) of securities in the offering company, and the rights associated with the securities in the offering company;

(g) a description of the main risks facing the offering company's business;

(h) a description, or a summary, of the key provisions of the offering company's constitution that deal with any rights and liabilities that attach to the securities in the issuing company;

(i) if the offering company is a proprietary company, a description or summary of the following:

(i) the key provisions of any agreement or proposed agreement between shareholders that deal with any rights and liabilities that attach to, or may affect, the securities in the issuing company;

(ii) any right of the directors of the company to refuse to register a transfer of shares in the company.

Note: For paragraph (a), the offering company will be one of the types set out in subsection 112(1) of the Act.

6D.3A.04(1A)    

If a summary of the information in paragraph (1)(f) is contained in section 2 of the offer document, then:

(a) the information in full must be contained in another section of, or in an appendix to, the offer document; and

(b) section 2 of the offer document must include a cross reference to the location of that information.

6D.3A.04(2)    

Section 2 of the offer document must also contain a copy, or a summary, of:

(a) if the offering company was registered before the financial year in which the CSF offer is to be made - the financial statements, that comply with the accounting standards, for the company for the most recently completed financial year; or

(b) if the offering company was registered during the financial year in which the CSF offer is to be made - the financial statements for the company for at least so much of that financial year as ends 1 month before the CSF offer is to be made.

6D.3A.04(2A)    

If a summary of the financial statements mentioned in subregulation (2) is contained in section 2 of the offer document, then:

(a) a copy of the statements must be contained in another section of, or in an appendix to, the offer document; and

(b) section 2 of the offer document must include a cross reference to the location of the statements.

6D.3A.04(3)    
Section 2 of the offer document must also contain the following information:

(a) if the offering company, or any person referred to in paragraph (1)(d), has been convicted of an offence against the Act - details of the offence, including a description of the circumstances giving rise to it;

(b) if a civil penalty under the Act has been imposed on the offering company, or any person referred to in paragraph (1)(d) - details of the penalty, including a description of the circumstances giving rise it;

(c) if a person referred to in paragraph (1)(d) is or has been disqualified from managing corporations under Part 2D.6 of the Act - details of the disqualification, including a description of the circumstances giving rise to it;

(d) if a person referred to in paragraph (1)(d) is or has been subject to a banning order under section 920A of the Act - details of the order, including a description of the circumstances giving rise to it;

(e) if a person referred to in paragraph (1)(d) is or has been subject to a court order under paragraph 921A(2)(a) of the Act - details of the order, including a description of the circumstances giving rise to it;

(f) if a person referred to in paragraph (1)(d) is or has been a director, secretary or senior manager of a corporation when it became insolvent - details of the insolvency, including a description of the circumstances giving rise to it;

(g) if ASIC has accepted under subsection 93AA(1) of the ASIC Act an undertaking given by the offering company, or by any person referred to in paragraph (1)(d) in relation to the offering company - details of the undertaking, including a description of the circumstances giving rise to it;

(h) if, during the 10-year period before the CSF offer is to be made, the offering company has:

(i) been convicted of any offence other than one against the Act; or

(ii) had imposed on it any penalty under any law other than the Act;

details of the offence or penalty, including a description of the circumstances giving rise to it;

(i) if, during the 10-year period before the CSF offer is to be made, any person referred to in paragraph (1)(d) has, in any of the capacities referred to in that paragraph with any company:

(i) been convicted of any offence other than one against the Act; or

(ii) had imposed on him or her a penalty under any law other than the Act;

details of the offence or penalty, including a description of the circumstances giving rise to it.

REGULATION 6D.3A.05   CONTENTS OF CSF OFFER DOCUMENT - SECTION 3: INFORMATION ABOUT THE OFFER  

6D.3A.05(1)    
The following information must be contained in section 3 of the offer document:

(a) a description, or a summary, of the securities on offer, including information on the rights associated with those securities;

(b) the minimum subscription amount for the offer (see subsection 738L(8) of the Act);

(c) the maximum subscription amount for the offer (see subsection 738L(7) of the Act);

(d) the period that the offering company expects the offer to remain open;

(e) a description of how the offering company intends to use the proceeds from the offer (including a description of how the company intends to use any proceeds of the offer in excess of the minimum subscription amount for the offer).

6D.3A.05(1A)    

If a summary of the information mentioned in paragraph (1)(a) is contained in section 3 of the offer document, then:

(a) the information in full must be contained in another section of, or in an appendix to, the offer document; and

(b) section 3 of the offer document must include a cross reference to the location of that information.

6D.3A.05(2)    
If any of the proceeds of the offer will be paid, directly or indirectly, to any of the following persons, section 3 of the offer document must also contain a description of the payment:

(a) a person referred to in paragraph 6D.3A.04(1)(d);

(b) the CSF intermediary that will publish the offer, or any other person that is a related party (within the meaning of subsection 738G(3) of the Act) of that CSF intermediary;

(c) a person promoting or marketing the offer;

(d) a person that holds securities entitling the person to exercise more than 20% of the rights to vote at a general meeting of the offering company;

(e) a person that controls the offering company;

(f) any other person that is a related party (within the meaning of subsection 738G(3) of the Act) of the offering company.

6D.3A.05(3)    
Without limiting subregulation (2), proceeds of the offer will be paid indirectly to a person if those proceeds will be paid for the benefit of the person by an intermediary entity such as a nominee, trust or partnership.

6D.3A.05(4)    
Section 3 of the offer document must also contain a description of each previous CSF offer (if any) of securities by the following entities:

(a) the offering company;

(b) for each person referred to in paragraph 6D.3A.04(1)(d) for the offering company - any other company that had, at the time of a previous CSF offer by that other company, the person as a director or senior manager;

(c) for each person that controls the offering company - any other company that the person controlled at the time of a previous CSF offer by that other company;

(d) any other company that is a related party (within the meaning of subsection 738G(3) of the Act) of the offering company.

6D.3A.05(5)    
The description of a previous CSF offer referred to in subregulation (4) must include a description of the outcome of the offer.

REGULATION 6D.3A.06   CONTENTS OF CSF OFFER DOCUMENT - SECTION 4: INFORMATION ABOUT INVESTOR RIGHTS  

6D.3A.06(1)    
The following information must be contained in section 4 of the offer document:

(a) a description of the cooling off rights contained in section 738ZD of the Act;

(b) a description of the effect of subsection 738ZA(5) of the Act (responsible intermediary for CSF offer to provide communication facility).

6D.3A.06(2)    
To the extent that any of the following provisions apply to the offering company, section 4 of the offer document must also contain a description of the effect of those provisions:

(aa) subsection 301(2) of the Act (about when financial reports have to be audited);

(a) subsection 301(5) of the Act (about financial accounts not required to be audited for up to 5 years);

(b) subsections 250N(5) and (6) of the Act (about company not required to hold an AGM for up to 5 years);

(c) subsections 314(1AF) and (2A) of the Act (about annual financial reporting to members and making the reports accessible online);

(d) item 19A of the table in section 611 of the Act (about the exception to the prohibition on acquiring relevant interests in voting shares);

(e) section 738ZK of the Act (about Chapter 2E of the Act applying to proprietary companies that have one or more CSF shareholders).

Note: The provisions mentioned in paragraph (2)(a) or (b) only apply to an offering company covered under section 738ZI of the Act.

REGULATION 6D.3A.07   OBLIGATION OF CSF INTERMEDIARY RELATING TO THEIR PLATFORMS - APPLICANT RISK ACKNOWLEDGEMENT  

6D.3A.07(1)    
For the purposes of paragraph 738ZA(3)(b) of the Act, this regulation sets out the requirements for an acknowledgement by a person making an application pursuant to a CSF offer.

6D.3A.07(2)    
The following statement must be set out in the acknowledgement:

"I have read the CSF offer document. I understand this document is not a prospectus and contains less information than a prospectus.

I have read the risk warning and I understand that it contains some of the important information for making a decision about investing. However:

(a) I understand that crowd-sourced funding is risky and that I may lose my entire investment; and

(b) I confirm that I could bear that loss without suffering undue hardship; and

(c) I understand that I may never be able to sell my shares and the value of my investment may be diluted over time.

I am aware that I can use the communication facility to ask questions and that there is a 5 business day cooling off period in relation to this investment.".

REGULATION 6D.3A.08   GATEKEEPER OBLIGATION OF CSF INTERMEDIARY - CHECKS  

6D.3A.08(1)    
For the purposes of subsection 738Q(1) of the Act, this regulation prescribes the checks that a CSF intermediary needs to conduct before publishing any of the following documents (the offer document ) on a platform of the intermediary:

(a) a CSF offer document (or a document purporting to be a CSF offer document);

(b) a supplementary CSF offer document (or a document purporting to be a supplementary CSF offer document);

(c) a replacement CSF offer document (or a document purporting to be a replacement CSF offer document); for a CSF offer of securities made by a company (the offering company ).

Identity of offering company

6D.3A.08(2)    
The CSF intermediary must check the following information:

(a) the name, ACN and type of the offering company;

(b) the address of the registered office of the offering company;

(c) the address of the principal place of business of the offering company.

Eligibility to crowd fund

6D.3A.08(3)    
The CSF intermediary must check whether:

(a) the company satisfies the requirements in paragraphs 738H(1)(a), (b), (c), (d), (e) and (f) of the Act; and

(b) the offer document satisfies the requirements in subsection 738J(2) and section 738K of the Act.

Information on directors etc.

6D.3A.08(4)    
The CSF intermediary must check the following:

(a) the names and addresses of each person referred to in paragraph 6D.3A.04(1)(d);

(b) whether the offer document contains the information required by subregulation 6D.3A.04(3).

REGULATION 6D.3A.09   GATEKEEPER OBLIGATION OF CSF INTERMEDIARY - REASONABLE STANDARD OF CHECKS  

6D.3A.09(1)    
For the purposes of subsection 738Q(2) of the Act, this regulation prescribes what constitutes a reasonable standard in relation to all the checks referred to in regulation 6D.3A.08.

6D.3A.09(2)    
To the extent that information to be checked is of a kind that is included in a register kept by ASIC under the Act, or on ASIC's website, a reasonable standard is to check:

(a) whether the information is included in that register or on that website; and

(b) if the information is so included - whether the information is contrary to any other information that the CSF intermediary has; and

(c) if the information is the name and address of a person referred to in paragraph 6D.3A.04(1)(d) - whether the name and address is consistent with the name and address used by that person on an original, a certified copy or an authenticated electronic copy of:

(i) a primary photographic identification document; or

(ii) both a primary non photographic identification document and a secondary identification document.

6D.3A.09(3)    
Subject to subregulation (4), for all other kinds of information or matters to be checked, a reasonable standard is to:

(a) explain in writing to the offering company what information or matters are required, including the level of detail required for such information and matters; and

(b) require the offering company to provide such information and matters to the CSF intermediary in accordance with a reasonable process that the CSF intermediary has developed, documented and implemented for this purpose.

6D.3A.09(4)    
A reasonable standard for checking whether the offer document (see subregulation 6D.3A.08(1)) satisfies the requirements in section 738K of the Act is to check the offer document in accordance with a reasonable process that the CSF intermediary has developed, documented and implemented for this purpose.

6D.3A.09(5)    

In this regulation:

certified copy
has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No. 1).

primary non photographic identification document
has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No 1).

primary photographic identification document
has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No 1).

secondary identification document
has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No 1).

REGULATION 6D.3A.10   OBLIGATION OF CSF INTERMEDIARY RELATING TO THEIR PLATFORMS - GENERAL CSF RISK WARNING  

6D.3A.10(1)    
For the purposes of subsection 738ZA(2) of the Act, this regulation specifies the terms of a general CSF risk warning.

6D.3A.10(2)    
Those terms are as follows:

"Crowd-sourced funding is risky. Issuers using this facility include new or rapidly growing ventures. Investment in these types of ventures is speculative and carries high risks.

You may lose your entire investment, and you should be in a position to bear this risk without undue hardship.

Even if the company is successful, the value of your investment and any return on the investment could be reduced if the company issues more shares.

Your investment is unlikely to be liquid. This means you are unlikely to be able to sell your shares quickly or at all if you need the money or decide that this investment is not right for you.

Even though you have remedies for misleading statements in the offer document or misconduct by the company, you may have difficulty recovering your money.

There are rules for handling your money. However, if your money is handled inappropriately or the person operating this platform becomes insolvent, you may have difficulty recovering your money.

Ask questions, read all information given carefully, and seek independent financial advice before committing yourself to any investment.".

PART 6D.5 - FUNDRAISING - MISCELLANEOUS  

REGULATION 6D.5.01  

6D.5.01   WARRANTS THAT ARE SECURITIES  

For paragraph 742(1)(b) of the Act, a warrant that is a security is exempted from all provisions of Chapter 6D of the Act.

REGULATION 6D.5.02  

6D.5.02   MODIFICATION OF PARAGRAPH 708(8)(c) OF THE ACT: RENEWAL PERIOD FOR ACCOUNTANTS' CERTIFICATES  
For paragraph 742(1)(c) of the Act, section 708 of the Act applies as if paragraph 708(8)(c) of the Act were modified by omitting "6 months" and substituting "2 years".

REGULATION 6D.5.03  

6D.5.03   MODIFICATION OF SECTION 738X OF THE ACT: REQUIREMENT TO NOTIFY RIGHT TO WITHDRAW APPLICATION ONLY APPLIES IF DEFECT IS MATERIALLY ADVERSE  

For the purposes of paragraph 742(1)(c) of the Act, Chapter 6D of the Act applies as if section 738X of the Act were modified so that subsection 738X(7) of the Act only applies if the defect in the CSF offer document referred to in paragraph 738X(5)(a) of the Act is materially adverse from the point of view of an investor.

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

PART 7.1 - PRELIMINARY  

Division 1 - General  

REGULATION 7.1.01  

7.1.01   PRESCRIBED FINANCIAL MARKET OPERATORS  
(Omitted by SLI 2011 No 193, Sch 1[3] (effective 31 October 2011).)

REGULATION 7.1.02  

7.1.02   PARTICIPANT  
(Repealed by FRLI No F2022L01689, Sch 1[2] (effective 15 September 2023).)

REGULATION 7.1.03  

7.1.03   MEANING OF PRESCRIBED CS FACILITY  
(Repealed by FRLI No F2023L01458, Sch 1[142] (effective 1 November 2023).)

REGULATION 7.1.03A  

7.1.03A   MEANING OF BASIC DEPOSIT PRODUCT - ADDITIONAL CONDITIONS  
(Repealed by FRLI No F2023L01458, Sch 1[142] (effective 1 November 2023).)

REGULATION 7.1.03B  

7.1.03B   SELF MANAGED SUPERANNUATION FUNDS  
(Repealed by FRLI No F2023L01458, Sch 1[142] (effective 1 November 2023).)

REGULATION 7.1.04   DERIVATIVES  

7.1.04(1)    
For paragraph 761D(1)(b) of the Act, the prescribed period is:

(a)    

for a foreign exchange contract - 3 business days; and

(b)    in any other case - 1 business day.

7.1.04(2)    

For subsection 761D(2) of the Act, and subject to this regulation, an arrangement is declared to be a derivative if the following conditions are satisfied in relation to the arrangement:

(a)    

the arrangement is not a foreign exchange contract;

(b)    under the arrangement, a party to the arrangement must, or may be required to, provide at some future time (which may be less than 1 day after the arrangement is entered into) consideration of a particular kind or kinds to someone;

(c)    the amount of the consideration, or the value of the arrangement, is ultimately determined, derived from or varies by reference to (wholly or in part) the value or amount of something else (of any nature whatsoever and whether or not deliverable), including, for example, one or more of the following:

(i) an asset;

(ii) a rate (including an interest rate or exchange rate);

(iii) an index;

(iv) a commodity.

7.1.04(3)    
(Omitted by SR 2003 No 126, Sch 1[2].)

7.1.04(4)    

An arrangement under which:

(a)    a party has, or may have, an obligation to buy tangible property (other than Australian or foreign currency) at a price and on a date in the future; and

(b)    another party has, or may have, an obligation to sell that property; and

(c)    the arrangement does not permit the seller's obligations to be wholly settled by cash, or by set-off between the parties, rather than by delivery of the property; and

(d)    neither usual market practice, nor the rules of a licensed market or a licensed CS facility, permits the seller's obligations to be closed out by the matching up of the arrangement with another arrangement of the same kind under which the seller has offsetting obligations to buy;

is not an arrangement to which subregulation (2) applies to the extent only that the arrangement deals with that purchase and sale.

7.1.04(5)    

An arrangement under which:

(a)    a party has an obligation to buy property; and

(b)    another party has an obligation to sell the property;

is not an arrangement to which subregulation (2) applies merely because the arrangement provides for the consideration to be varied by reference to a general inflation index (for example, the Consumer Price Index).

7.1.04(6)    

A contract for the future provision of services is not an arrangement to which subregulation (2) applies.

7.1.04(7)    

A thing that is described in subsection 764A(1) of the Act, other than paragraph 764A(1)(c), is not an arrangement to which subregulation (2) applies.

7.1.04(8)    

For paragraph 761D(3)(d) of the Act, each of the following is declared not to be a derivative:

(a)    tradeable water rights;

(b)    

an arrangement:

(i) under which a person (the seller ) has, or may have, an obligation to sell tradeable water rights at a future date; and

(ii) under which another person (the buyer ) has, or may have, an obligation to buy the tradeable water rights, or replacement water rights, at a future date; and

(iii) that does not permit the seller's obligations to be wholly settled by cash, or by set-off between the seller and the buyer, rather than by transfer of ownership of the tradeable water rights or replacement water rights; and

(iv) in relation to which neither usual market practice, nor the rules of a licensed market or of a licensed CS facility, allow the seller's obligations to be closed out by matching up the arrangement with another arrangement of the same kind under which the seller has offsetting obligations to buy the tradeable water rights or replacement water rights;

(c)    

a carbon abatement contract.

Note: For carbon abatement contract , see subregulation 1.0.02(1).

7.1.04(9)    

Subregulations (4) to (8) apply whether or not a matter mentioned in those subregulations is described in subsection 761D(1) of the Act.

7.1.04(10)    

In subregulation (8):

replacement water rights
means tradeable water rights that are granted, issued or authorised as a replacement for the seller's tradeable water rights, including as a result of transformation arrangements mentioned in subsection 97(1) of the Water Act 2007.

rules
(Repealed by FRLI No F2022L01689, Sch 1[30] (effective 15 September 2023).)

tradeable water rights
has the same meaning as in the Water Act 2007.

REGULATION 7.1.04A   MEANING OF KIND OF FINANCIAL PRODUCTS (SECTION 1012IA OF THE ACT)  

7.1.04A(1)   [Application]  

For section 761CA of the Act, this regulation applies in relation to paragraph (a) of the definition of custodial arrangement in subsection 1012IA(1) of the Act.

7.1.04A(2)   [Financial products]  

Each of the following is a kind of financial product:

(a) for interests in a managed investment scheme, all the interests in that managed investment scheme;

(b) in any other case, all the financial products issued by a person or the person's related bodies corporate.

REGULATION 7.1.04B   MEANING OF CLASS OF FINANCIAL PRODUCTS (MANAGED INVESTMENT SCHEMES)  

7.1.04B(1)   [Application]  

For section 761CA of the Act, this regulation applies in relation to paragraph 1017F(4)(d) of the Act.

7.1.04B(2)   [Same class]  

An interest in a managed investment scheme is in the same class as another interest in a managed investment scheme if they are both interests in the same managed investment scheme.

REGULATION 7.1.04C   MEANING OF CLASS OF FINANCIAL PRODUCTS (SUPERANNUATION PRODUCTS)  

7.1.04C(1)   [Application]  

For section 761CA of the Act, this regulation applies in relation to paragraph 1017F(4)(d) of the Act.

7.1.04C(2)   [Superannuation product]  

A superannuation product is in the same class as another superannuation product if they are both issued by the same superannuation entity.

REGULATION 7.1.04CAA   MEANING OF CLAIMANT INTERMEDIARY - PERSONS EXCLUDED FROM BEING CLAIMANT INTERMEDIARIES  

7.1.04CAA(1)    
For the purposes of subsection 761CAA(2) of the Act, a person is not a claimant intermediary in the circumstances set out in subregulation (2), (4), (5), (6), (7), (8), (9), (10), (11) or (12).

Mortgage brokers and mortgage intermediaries

7.1.04CAA(2)    
The circumstances are:

(a)    the person is a mortgage broker or mortgage intermediary; and

(b)    the mortgage broker or mortgage intermediary provides a credit service to a consumer; and

(c)    the mortgage broker or mortgage intermediary represents the consumer in pursuing a claim under an insurance product.

7.1.04CAA(3)    
Expressions used in subregulation (2) that are also used in the National Consumer Credit Protection Act 2009 have the same meaning in that subregulation as they have in that Act.

Insurance brokers

7.1.04CAA(4)    
The circumstances are that the person is an insurance broker (within the meaning of the Insurance Contracts Act 1984).

Qualified accountants

7.1.04CAA(5)    
The circumstances are:

(a)    the person is a qualified accountant; and

(b)    the qualified accountant provides one or more of the following services to a person (the client ):

(i) preparing a financial report or financial statements (including, but not limited to, a financial report or financial statements required under the Act);

(ii) auditing financial records;

(iii) a tax agent service (within the meaning of the Tax Agent Services Act 2009);

(iv) if the qualified accountant is a limited licensee (within the meaning of subregulation 7.6.04(3)) or supervises and has responsibility for the provision of financial services covered by the financial services licence of a limited licensee - a financial service covered by the financial services licence of the limited licensee; and

(c)    the qualified accountant represents the client in pursuing a claim under an insurance product.

Veterinarians

7.1.04CAA(6)    
The circumstances are:

(a)    the person (the veterinarian ) is registered under the law of a State or Territory as a veterinarian, veterinary practitioner or veterinary surgeon; and

(b)    the veterinarian represents a person insured under an insurance product in pursuing a claim under the product; and

(c)    the claim relates to the management or prevention of a disease, injury or condition of an animal covered by the insurance product.

Travel agents

7.1.04CAA(7)    
The circumstances are:

(a)    the person is a travel agent; and

(b)    the travel agent represents a person insured under an insurance product in pursuing a claim under the product; and

(c)    the claim relates to any of the following matters covered by the insurance product:

(i) financial loss for fares for any form of transport or accommodation to be used in the course of a specified journey if the insured person does not start or complete the journey;

(ii) loss or damage to personal belongings while the insured person is on a specified journey;

(iii) a sickness or disease contracted, or injury sustained, by the insured person on a specified journey;

(iv) loss, damage or compensation for an event affecting the insured person on a specified journey that ordinarily forms a part of insurance commonly regarded as travel insurance, including loss of cash or credit cards, legal liability, hijack, kidnap or ransom.

Financial advisers

7.1.04CAA(8)    
The circumstances are:

(a)    the person is a financial services licensee whose Australian financial services licence covers the provision of financial product advice; or

(b)    both of the following are satisfied:

(i) the person is an authorised representative of a financial services licensee whose Australian financial services licence covers the provision of financial product advice;

(ii) the person is authorised by the licensee to provide financial product advice on behalf of the licensee.

Financial counsellors

7.1.04CAA(9)    
The circumstances are that the person is a member of one of the following bodies, acting in that capacity:

(a)    Financial Counselling Australia Ltd;

(b)    Financial Counsellors Association of New South Wales Inc;

(c)    Financial and Consumer Rights Council Inc.;

(d)    Financial Counsellors Association of Queensland Inc.;

(e)    Financial Counsellors Association of Western Australia Inc;

(f)    The South Australian Financial Counsellors' Association Incorporated;

(g)    Financial Counselling Tasmania Inc.;

(h)    Financial Counsellors ACT;

(i)    Money Workers Association of the Northern Territory Incorporated.

Property managers

7.1.04CAA(10)    
The circumstances are:

(a)    the person (the property manager ) carries on a business of managing property; and

(b)    the property manager manages property on behalf of one or more other persons; and

(c)    the property manager represents a person insured under an insurance product in pursuing a claim in relation to the property under the insurance product.

Estate management

7.1.04CAA(11)    
The circumstances are:

(a)    the person (the estate manager ) administers the estate of a person who is:

(i) deceased; or

(ii) incapable of managing the person's own affairs because of physical or mental incapacity; and

(b)    the estate manager represents a person insured under an insurance product in pursuing a claim under the insurance product; and

(c)    the claim relates to the estate or its administration.

Public Trustees etc.

7.1.04CAA(12)    
The circumstances are:

(a)    the person (the estate manager ) is the Public Trustee (however described) of a State or Territory; and

(b)    the estate manager administers the estate of a person; and

(c)    the estate manager represents a person insured under an insurance product in pursuing a claim under the insurance product; and

(d)    the claim relates to the estate or its administration.

REGULATION 7.1.04CA   KINDS OF FINANCIAL PRODUCTS  

7.1.04CA(1)   [Application]  

For section 761CA of the Act, this regulation applies in relation to paragraph 917C(3)(ba) of the Act.

7.1.04CA(2)   ["financial product"]  

The following are kinds of financial product:

(a) motor vehicle insurance;

(b) home building insurance;

(c) home contents insurance;

(d) sickness and accident insurance;

(e) consumer credit insurance;

(f) travel insurance.

REGULATION 7.1.04CB  

7.1.04CB   WHEN PROVIDING CERTAIN CLAIMS HANDING AND SETTLING SERVICES IS NOT THE PRIMARY PART OF A BUSINESS  

For the purposes of paragraph 761DA(2)(b) of the Act, circumstances in which a person's provision of claims handling and settling services on behalf of one or more insurers is taken not to be the primary part of a business carried on by the person are when those services are:

(a)    investigating the validity of claims under insurance products, or providing assistance in relation to such investigations; or

(b)    assessing the extent of insurers' liabilities to other persons under insurance products under which claims are made, or providing assistance in relation to such assessments.

REGULATION 7.1.04D   MEANING OF ISSUER FOR CERTAIN DERIVATIVES  

7.1.04D(1)   [Application]  

This regulation applies in relation to a financial product that:

(a) is a derivative; and

(b) is entered into, or acquired through a facility conducted in accordance with:

(i) the Corporations (Exempt Futures Market - National Wholesale Electricity) Declaration 1999; or

(ii) the Corporations (Exempt Futures Market) Declaration 2001.

7.1.04D(2)   [Party to the financial product]  

For paragraph 761E(7)(a) of the Act, each person who is a party to the financial product is taken to be an issuer of the financial product.

7.1.04D(3)   [No application]  

For paragraph 761E(7)(a) of the Act, subsections 761E(5) and (6) of the Act do not apply to the financial product.

REGULATION 7.1.04E   ISSUE OF A NEW INTEREST IN A SUPERANNUATION FUND  

7.1.04E(1)   [Application]  

This regulation applies if a member of a superannuation fund, who has a superannuation interest in the growth phase, elects to receive a pension in relation to that interest or part of that interest.

7.1.04E(2)   [When financial product issued]  

For paragraph 761E(7)(a) of the Act, the superannuation fund is taken to issue a new financial product when:

(a) it acknowledges receipt of the member's election; or

(b) it makes the first payment of the pension;

whichever occurs first.

7.1.04E(3)   [Definitions]  

For this regulation:

growth phase
has the meaning given by regulation 1.03AB of the SIS Regulations.

pension
has the meaning given by subregulation 1.06(1) of the SIS Regulations.

REGULATION 7.1.04F   MEANING OF CLASS OF FINANCIAL SERVICES (SUBSECTIONS 917A(3), 917C(2) AND 917C(3) OF THE ACT)  

7.1.04F(1)    
For section 761CA of the Act, this regulation applies for subsections 917A(3), 917C(2) and 917C(3) of the Act.

7.1.04F(2)    
Each of the following is a class of financial services:

(a)    the provision of financial product advice relating to a general insurance product;

(b)    the provision of financial product advice relating to an investment life insurance product;

(c)    the provision of financial product advice relating to a life risk insurance product;

(d)    dealing in a financial product that is a general insurance product;

(e)    dealing in a financial product that is an investment life insurance product;

(f)    dealing in a financial product that is a life risk insurance product;

(g)    

the provision of a claims handling and settling service in relation to a general insurance product;

(h)    

the provision of a claims handling and settling service in relation to an investment life insurance product;

(i)    

the provision of a claims handling and settling service in relation to a life risk insurance product.

REGULATION 7.1.04G   MEANING OF ISSUER FOR A FOREIGN EXCHANGE CONTRACT  

7.1.04G(1)   [Application]  

This regulation applies to a financial product that is a foreign exchange contract that is not entered into, or traded, on a financial market.

7.1.04G(2)   [Who is an issuer?]  

For paragraph 761E(7)(a) of the Act, each party to the foreign exchange contract is an issuer of the product.

REGULATION 7.1.04N   SPECIFIC THINGS THAT ARE FINANCIAL PRODUCTS - LITIGATION FUNDING SCHEMES AND ARRANGEMENTS  

7.1.04N(1)    
This regulation is made for the purposes of paragraph 764A(1)(m) of the Act.

7.1.04N(2)    
The following are declared to be financial products:

(a)    

an interest in a litigation funding scheme mentioned in regulation 5C.11.01;

(b)    an interest in a litigation funding arrangement mentioned in that regulation.

7.1.04N(3)-(4)    
(Repealed by FRLI No F2022L01614, Sch 1[9] (effective 10 December 2022).)

REGULATION 7.1.05  

7.1.05   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: SUPERANNUATION INTERESTS  

For paragraph 765A(1)(q) of the Act, an exempt public sector superannuation scheme is prescribed.

REGULATION 7.1.06   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: CREDIT FACILITY  

7.1.06(1)    
For subparagraph 765A(1)(h)(i) of the Act, each of the following is a credit facility :

(a)    

the provision of credit:

(i) for any period; and

(ii) with or without prior agreement between the credit provider and the debtor; and

(iii) whether or not both credit and debit facilities are available; and

(iv) that is not a financial product mentioned in paragraph 763A(1)(a) of the Act; and

(v) that is not a security, a managed investment product, a foreign passport fund product, an investment life insurance product, a superannuation product or an RSA; and

(va) that is not a financial product mentioned in paragraph 764A(1)(ba), or (j) of the Act; and

(vi) that is not a financial product mentioned in paragraph 764A(1)(i) of the Act, other than a product the whole or predominant purpose of which is, or is intended to be, the provision of credit;

(b)    a facility:

(i) known as a bill facility; and

(ii) under which a credit provider provides credit by accepting, drawing, discounting or indorsing a bill of exchange or promissory note;

(c)    the provision of credit by a pawnbroker in the ordinary course of a pawnbroker's business (being a business which is being lawfully conducted by the pawnbroker);

(d)    the provision of credit by the trustee of the estate of a deceased person by way of an advance to a beneficiary or prospective beneficiary of the estate;

(e)    the provision of credit by an employer, or a related body corporate of an employer, to an employee or former employee (whether or not it is provided to the employee or former employee with another person);

(f)    

a mortgage:

(i) that secures obligations under a credit contract (other than a lien or charge arising by operation of any law or by custom); and

(ii) that is not a financial product mentioned in paragraph 763A(1)(a) of the Act; and

(iii) that is not a security, a managed investment product, a foreign passport fund product, an investment life insurance product, a superannuation product or an RSA; and

(iiia) that is not a financial product mentioned in paragraph 764A(1)(ba), or (j) of the Act; and

(iv) that is not a financial product mentioned in paragraph 764A(1)(i) of the Act, other than a product the whole or predominant purpose of which is, or is intended to be, the provision of credit;

(g)    a guarantee related to a mortgage mentioned in paragraph (f);

(h)    a guarantee of obligations under a credit contract.

7.1.06(2)    
The provision of consumer credit insurance that includes a contract of general insurance for the Insurance Contracts Act 1984 is not a credit facility.

7.1.06(2A)    

The following are not credit facilities:

(a)    

a litigation funding scheme mentioned in regulation 5C.11.01;

(b)    

a litigation funding arrangement mentioned in regulation 5C.11.01.

7.1.06(2B)    
(Repealed by FRLI No F2020L00942, Sch 1[3] (effective 24 July 2020).)

7.1.06(3)    
In this regulation:

credit
means a contract, arrangement or understanding:

(a) under which:

(i) payment of a debt owed by one person (a debtor ) to another person (a credit provider ) is deferred; or

(ii) one person (a debtor ) incurs a deferred debt to another person (a credit provider ); and

(b) including any of the following:

(i) any form of financial accommodation;

(ii) a hire purchase agreement;

(iii) credit provided for the purchase of goods or services;

(iv) a contract, arrangement or understanding for the hire, lease or rental of goods or services, other than a contract, arrangement or understanding under which:

(A) full payment is made before or when the goods or services are provided; and

(B) for the hire, lease or rental of goods - an amount at least equal to the value of the goods is paid as a deposit in relation to the return of the goods;

(v) an article known as a credit card or charge card;

(vi) an article, other than a credit card or a charge card, intended to be used to obtain cash, goods or services;

(vii) an article, other than a credit card or a charge card, commonly issued to customers or prospective customers by persons who carry on business for the purpose of obtaining goods or services from those persons by way of a loan;

(viii) a liability in respect of redeemable preference shares;

(ix) a financial benefit arising from or as a result of a loan;

(x) assistance in obtaining a financial benefit arising from or as a result of a loan;

(xi) issuing, indorsing or otherwise dealing in a promissory note;

(xii) drawing, accepting, indorsing or otherwise dealing in a negotiable instrument (including a bill of exchange);

(xiii) granting or taking a lease over real or personal property;

(xiv) a letter of credit.

REGULATION 7.1.06A   ARRANGEMENTS FOR CERTAIN FINANCIAL PRODUCTS THAT ARE NOT CREDIT FACILITIES  

7.1.06A(1)    

This regulation applies in relation to a financial product that would be a credit facility in accordance with regulation 7.1.06 if subparagraphs 7.1.06(1)(a)(iv), (v), (va) and (vi), and 7.1.06(1)(f)(ii), (iii), (iiia) and (iv) did not apply.

7.1.06A(2)    
For paragraph 761E(7)(a) of the Act, and in relation to the financial product:

(a)    the credit provider is not taken to be the issuer of the financial product; and

(b)    the debtor is taken to be the issuer of the financial product.

7.1.06A(3)    
For paragraph 766A(2)(b) of the Act, and in relation to the financial product:

(a)    the provision of financial product advice to the debtor, or the debtor's representative, is taken not to be the provision of a financial service; and

(b)    a dealing in the credit facility by the credit provider, or the credit provider's representative, is taken not to be the provision of a financial service.

7.1.06A(4)    
In this regulation:

credit, credit provider and debtor
have the same meanings as in subregulation 7.1.06(3).

REGULATION 7.1.06B  

7.1.06B   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: SUPERANNUATION INTERESTS  
(Repealed by FRLI No F2019L01641, Sch 1[2] (effective 18 December 2019).)

REGULATION 7.1.07   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: SURETY BONDS  

7.1.07(1)   [Application]  

This regulation applies to an arrangement between 2 persons ( person 1 and person 2 ) made in the following circumstances:

(a) person 1 enters into the arrangement in order to meet a requirement of another arrangement between person 1 and a person other than person 2 ( person 3 );

(b) under the arrangement, person 2 undertakes to make a payment to, or perform an obligation for the benefit of, person 3 in circumstances specified as part of the arrangement;

(c) under the arrangement, person 1 is liable to person 2 for any payments made, or liabilities, costs or expenses incurred, by person 2 in making the payment to, or performing the obligation for the benefit of, person 3;

(d) the arrangement does not constitute a financial product under section 764A of the Act, other than a derivative.

7.1.07(2)   [Arrangement not financial product]  

For paragraph 765A(1)(y) of the Act, the arrangement is not a financial product.

REGULATION 7.1.07A   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: RENTAL AGREEMENTS  

7.1.07A(1)   [Application]  

This regulation applies to an arrangement between 2 persons ( person 1 and person 2 ) made in the following circumstances:

(a) person 1 leases or rents something from person 2;

(b) under the arrangement, person 1 makes a payment to person 2 to reduce the amount that person 1 would otherwise have to pay to person 2 under the leasing or rental agreement;

(c) the payment relates to the event of an accident or other eventuality affecting the thing that is being leased or rented.

Example

Collision damage waiver insurance for a rental car.

7.1.07A(2)   [Arrangement not financial product]  

For paragraph 765A(1)(y) of the Act, the arrangement is not a financial product.

REGULATION 7.1.07B  

7.1.07B   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: BANK DRAFTS  

For paragraph 765A(1)(y) of the Act, a bank draft, including (but not limited to):

(a) a cheque drawn by a financial institution on itself; or

(b) a cheque drawn by a financial institution on a financial institution other than itself;

is not a financial product.

REGULATION 7.1.07C   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: INSURANCE UNDER AN OVERSEAS STUDENT HEALTH INSURANCE CONTRACT  

7.1.07C(1)    
For paragraph 765A(1)(y) of the Act, insurance under an overseas student health insurance contract is not a financial product.

7.1.07C(2)    

In this regulation:

overseas student health insurance contract
has the same meaning as in Private Health Insurance Rules made for the purposes of Part 4-2 of the Private Health Insurance Act 2007 (which is about health insurance business).

Note: In 2019, the meaning was given by rule 18 of the Private Health Insurance (Health Insurance Business) Rules 2018.

REGULATION 7.1.07D  

7.1.07D   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: FUNERAL EXPENSES POLICY  
(Repealed by FRLI No F2019L01533, Sch 1[2] (effective 1 April 2020).)

REGULATION 7.1.07E   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: RIGHTS OF THE HOLDER OF A DEBENTURE  

7.1.07E(1)   [Application]  

This regulation applies to a facility that consists of the rights of the holder of a debenture against a trustee under a trust deed entered into under:

(a) section 283AA of the Act; or

(b) Chapter 2L or Division 4 of Part 7.12 of the old Corporations Law.

7.1.07E(2)   [Facility not financial product]  

For paragraph 765A(1)(y) of the Act, the facility is not a financial product.

REGULATION 7.1.07F  

7.1.07F   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: MONEY ORDERS  

For paragraph 765A(1)(y) of the Act, a money order issued as a money order by, or for, Australia Post is not a financial product.

REGULATION 7.1.07G  

7.1.07G   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: ELECTRONIC FUNDS TRANSFERS  

For paragraph 765A(1)(y) of the Act, a non-cash payment facility is not a financial product if:

(a) the issuer is:

(i) a body corporate that is an ADI (within the meaning of the Banking Act 1959); or

(ii) an operator of a payment system; and

(b) under the facility, as instructed by the client, the issuer makes money available (or causes it to be made available) to a person nominated by the client:

(i) within 2 business days of receiving the client's instruction; or

(ii) within the time reasonably required to complete the transaction subject to any constraints imposed by law; and

(c) under the facility the funds are transferred by electronic means for collection by, or for the credit of, the payer or another person; and

(d) the issuer and the payer do not have a standing arrangement to transfer funds in this manner.

Example

Telegraphic transfers and international money transfers offered by banks and remittance dealers.

REGULATION 7.1.07H  

7.1.07H   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS: ACT INSURANCE  

For paragraph 765A(1)(y) of the Act, Australian Capital Territory insurance, including insurance entered into by the Australian Capital Territory and another insurer as joint insurers, is not a financial product.

REGULATION 7.1.07I  

7.1.07I   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS - AUSTRALIAN CARBON CREDIT UNITS AND ELIGIBLE INTERNATIONAL EMISSIONS UNITS  
(Repealed by FRLI No F2022L01689, Sch 1[3] (effective 15 September 2023).)

REGULATION 7.1.07J  

7.1.07J   SPECIFIC THINGS THAT ARE NOT FINANCIAL PRODUCTS - CARBON ABATEMENT  

For paragraph 765A(1)(y) of the Act, a carbon abatement contract is declared not to be a financial product.

Note: For carbon abatement contract , see subregulation 1.0.02(1).

REGULATION 7.1.08AA   MEANING OF FINANCIAL PRODUCT ADVICE - ADVICE THAT IS NOT REGARDED AS A NECESSARY PART OF PROVIDING CLAIMS HANDLING AND SETTLING SERVICES  

Advice about how to structure or use insurance claim payouts

7.1.08AA(1)    
For the purposes of paragraph 766B(7B)(b) of the Act, giving a recommendation or statement of opinion, or a report of either of those things, cannot reasonably be regarded as a necessary part of providing a claims handling and settling service if the recommendation, statement or report relates to:

(a)    how an amount to be paid to a person in settlement of a claim under an insurance product should be structured; or

(b)    the management or use of an amount paid, or to be paid, to a person in settlement of a claim under an insurance product.

Advice about other insurance products or financial products

7.1.08AA(2)    
For the purposes of paragraph 766B(7B)(b) of the Act, giving a recommendation or statement of opinion, or a report of either of those things, cannot reasonably be regarded as a necessary part of providing a claims handling and settling service if the recommendation, statement or report:

(a)    is given in response to a claim, or potential claim, made under an insurance product; and

(b)    relates to other insurance products not held by the person making the claim or financial products.

REGULATION 7.1.08   MEANING OF FINANCIAL PRODUCT ADVICE : EXEMPT DOCUMENT OR STATEMENT  

7.1.08(1)    
For subparagraph (a)(ii) of the definition of exempt document or statement in subsection 766B(9) of the Act, the following documents and statements are prescribed (and so excluded from the definition):

(a) a Product Disclosure Statement that:

(i) contains personal advice; or

(ii) contains general advice about a financial product other than a financial product to which the Statement relates;

(b) a Financial Services Guide that contains personal advice;

(c) a document or statement that would, but for this regulation, be an exempt document or statement only because it is prepared or given in accordance with section 1018A of the Act;

(d) a record of advice mentioned in subsection 946B(3A) of the Act.

7.1.08(2)    
For subregulation (1), if a person:

(a) acquires a financial product ( product 1 ); and

(b) will be able, by acquiring product 1, to give the product issuer an instruction to acquire a particular financial product or a financial product of a particular kind (within the meaning of section 1012IA of the Act) under a custodial arrangement (within the meaning of section 1012IA of the Act);

the Product Disclosure Statement for product 1 is taken to relate to the other financial product.

7.1.08(3)    
For paragraph (b) of the definition of exempt document or statement in subsection 766B(9) of the Act, documents, information and statements that:

(a) do not contain personal advice; and

(b) are required by, and prepared as a result of, a requirement under an Australian law; and

(c) are included in a class of documents, information or statements specified by ASIC in a list published in the Gazette for this subregulation;

are prescribed (and so included in the definition).

7.1.08(3A)    

For the purposes of paragraph (b) of the definition of exempt document or statement in subsection 766B(9) of the Act, the following documents and statements are prescribed (and so included in the definition):

(a) a CSF offer document that does not contain personal advice;

(b) a document or statement to the extent that it contains or draws information from a CSF offer document and attributes that information to the CSF offer document, if:

(i) the information is published on the platform on which the CSF offer document is published, and does not contain personal advice; or

(ii) the information is a statement made on the communication facility for the CSF offer, and does not contain personal advice;

(c) an advertisement or publication to the extent that the advertisement or publication:

(i) contains or draws information from a CSF offer document and attributes that information to the CSF offer document; and

(ii) does not contravene subsection 738ZG(1) of the Act; and

(iii) does not contain personal advice.

7.1.08(4)    

For paragraph (b) of the definition of exempt document or statement in subsection 766B(9) of the Act:

(a) an assessment under subsection 985E(1) of the Act that a margin lending facility will not be unsuitable for the person to whom the margin lending facility is to be issued is prescribed (and so excluded from the definition); and

(b) an assessment under subsection 985E(1) of the Act that a margin lending facility whose limit is proposed to be increased will not be unsuitable for the person for whom the limit of the margin lending facility is to be increased is prescribed (and so excluded from the definition).

Note: The effect of paragraph (b) of the definition of exempt document or statement in subsection 766B(9), is that a prescribed document or statement is an exempt document or statement.

REGULATION 7.1.08A  

7.1.08A   MODIFICATION OF SECTION 766D OF THE ACT - FREE CARBON UNITS  

For paragraph 926B(1)(c) of the Act, Part 7.6 of the Act applies in relation to free carbon units (within the meaning of the Clean Energy Act 2011) as if section 766D of the Act were modified by inserting after subsection 766D(2) the following subsection:

"(3)
A person who holds a free carbon unit (within the meaning of the Clean Energy Act 2011) that has been issued to the person by the Clean Energy Regulator is taken not to be making a market for a financial product if the person states the price of the free carbon unit."

REGULATION 7.1.09   OBLIGATIONS RELATED TO CLEARING AND SETTLEMENT FACILITY  

7.1.09(1)    
For paragraph 768A(1)(b) of the Act, the following obligations are prescribed:

(a)    

each obligation arising from a contract to transfer a security;

(b)    

each obligation arising from a contract to transfer a managed investment product;

(c)    each obligation arising from acquiring or providing a financial product mentioned in paragraph 764A(1)(c) of the Act;

(d)    each obligation arising from a contract to transfer a financial product mentioned in paragraph 764A(1)(j) of the Act;

(e)    each obligation arising from a contract to transfer a financial product mentioned in paragraph 764A(1)(ba) of the Act;

(ea)    

each obligation arising from a contract to transfer a foreign passport fund product;

(f)    each obligation arising from a contract to transfer a financial product mentioned in paragraph 764A(1)(k) of the Act;

(fa)    

each obligation arising from a contract to transfer a carbon unit, an Australian carbon credit unit or an eligible international emissions unit;

Note: See paragraphs 764A(1)(ka) and (kb) of the Act.

(g)    each obligation arising from a contract to transfer a right that includes an undertaking by a body to repay, as a debt, money deposited with or lent to the body;

(h)    each obligation arising from the entry into a repurchase agreement.

7.1.09(2)    

In this regulation, repurchase agreement means a repurchase transaction, in relation to a financial product, entered into pursuant to:

(a)    The Bond Market Association and the International Securities Market Association Global Master Repurchase Agreement (known as the TBMA/ISMA Global Master Repurchase Agreement); or

(b)    another commonly used master agreement for repurchase transactions.

REGULATION 7.1.10   CONDUCT THAT DOES NOT CONSTITUTE OPERATING A CLEARING AND SETTLEMENT FACILITY  

7.1.10(1)    
(Omitted by SR 2002 No 16, Sch 1[9] (effective 11 March 2002).)

7.1.10(2)   [Stock Exchange of Newcastle Limited, Bendigo Stock Exchange Limited]  

For paragraph 768A(2)(i) of the Act, the conduct of:

(a) National Stock Exchange of Australia Limited, or an agent of that body; or

(b) a participant of the National Stock Exchange of Australia Limited, or an agent of the participant; or

(c) Bendigo Stock Exchange Limited, or an agent of that body; or

(d) a participant of the Bendigo Stock Exchange Limited, or an agent of the participant;

in operating a facility in accordance with the operating rules of a licensed market does not constitute operating a clearing and settlement facility if the requirements of subregulation (3) are met.

7.1.10(3)   [Requirements]  

For subregulation (2), the requirements are:

(a) the market licensee must have, and must be responsible for enforcing, operating rules that apply to a participant of the licensed market in relation to the participant's obligations arising from transactions carried out on the licensed market; and

(b) a participant mentioned in paragraph (a), or an agent of the participant appointed in accordance with the operating rules of the licensed market, must be responsible for fulfilling the obligations owed to another participant or agent arising from transactions carried out on the licensed market; and

(c) the market licensee is not the operator of any other clearing and settlement facility; and

(d) each participant of the licensed market is not the operator of any other clearing and settlement facility; and

(e) each agent of a participant of the licensed market is not the operator of any other clearing and settlement facility.

7.1.10(4)    
(Omitted by SR 2002 No 16, Sch 1[9] (effective 11 March 2002).)

Division 2 - Retail clients and wholesale clients  

REGULATION 7.1.11   MEANING OF RETAIL CLIENT AND WHOLESALE CLIENT : MOTOR VEHICLE INSURANCE PRODUCT  

7.1.11(1)   [``motor vehicle insurance product'']  

For subparagraph 761G(5)(b)(i) of the Act, a motor vehicle insurance product is a contract or part of a contract that provides insurance cover (whether or not the cover is limited or restricted in any way) in respect of one or more of the following:

(a) loss of, or damage to, a motor vehicle;

(b) liability for loss of, or damage to, property caused by or resulting from impact of a motor vehicle with some other thing.

7.1.11(2)   [Exclusions]  

A motor vehicle insurance product does not include:

(a) insurance to or in relation to which the Marine Insurance Act 1909 applies; or

(b) insurance entered into, or proposed to be entered into, for the purposes of a law (including a law of a State or Territory) that relates to:

(i) workers' compensation; or

(ii) compulsory third party compensation.

7.1.11(3)   [``motor vehicle'']  

In this regulation:

motor vehicle
means a vehicle that is designed:

(a) to travel by road; and

(b) to use volatile spirit, steam, gas, oil, electricity or any other power (not being human power or animal power) as its principal means of propulsion; and

(c) to carry passengers;

and includes a motor cycle.

7.1.11(4)   [Exclusions]  

However, a motor vehicle does not include:

(a) an omnibus; or

(b) a tram; or

(c) a motor vehicle the carrying capacity of which exceeds 2 tonnes.

REGULATION 7.1.12   MEANING OF RETAIL CLIENT AND WHOLESALE CLIENT : HOME BUILDING INSURANCE PRODUCT  

7.1.12(1)   [``home building insurance product'']  

For subparagraph 761G(5)(b)(ii) of the Act, a home building insurance product is a contract or part of a contract that provides insurance cover (whether or not the cover is limited or restricted in any way) in respect of destruction of or damage to a home building.

7.1.12(2)   [Exclusions]  

A home building insurance product does not include insurance entered into, or proposed to be entered into, for the purposes of a law (including a law of a State or Territory) that relates to building or construction work in relation to a home building.

7.1.12(3)   [``home building'', "site"]  

In this regulation:

home building
means:

(a) a building used, or intended to be used, principally and primarily as a place of residence; and

(b) out-buildings, fixtures and structural improvements used for domestic purposes, being purposes related to the use of the principal residence;

on the site and, without limiting the generality of the expression, includes:

(c) fixed wall coverings, fixed ceiling coverings and fixed floor coverings (other than carpets); and

(d) services (whether underground or not) that are the property of the insured or that the insured is liable to repair or replace or pay the cost of repairing and replacing; and

(e) fences and gates wholly or partly on the site.

site
, in relation to a building, means the site specified in the relevant contract of insurance as the site on which the building is situated.

7.1.12(4)   [Exclusions]  

A home building does not include:

(a) a hotel; or

(b) a motel; or

(c) a boarding house; or

(d) a building that:

(i) is in the course of construction; and

(ii) is being constructed by the insured, or an intending insured, in the course of a construction business; or

(e) a temporary building or structure or a demountable or moveable structure; or

(f) a caravan (whether fixed to the site or not).

REGULATION 7.1.13   MEANING OF RETAIL CLIENT AND WHOLESALE CLIENT : HOME CONTENTS INSURANCE PRODUCT  

7.1.13(1)   ["home contents insurance product"]  

For subparagraph 761G(5)(b)(iii) of the Act, a home contents insurance product is a contract or part of a contract that provides insurance cover (whether or not the cover is limited or restricted in any way) in respect of loss of or damage to the contents of a residential building.

7.1.13(2)   [Exclusions]  

A home contents insurance product does not include:

(a) insurance to or in relation to which the Marine Insurance Act 1909 applies; or

(b) insurance entered into, or proposed to be entered into, for the purposes of a law (including a law of a State or Territory) that relates to:

(i) workers' compensation; or

(ii) compulsory third party compensation.

7.1.13(3)   ["contents", "residential building"]  

In this regulation:

contents
, in relation to a residential building, means any of the following items:

(a) furniture, furnishings and carpets (whether fixed or unfixed);

(b) household goods;

(c) clothing and other personal effects;

(d) a picture;

(e) a work of art;

(f) a fur;

(g) a piece of jewellery;

(h) a gold or silver article;

(i) a document of any kind;

(j) a collection of any kind;

(k) swimming pools that:

(i) are not fixtures; and

(ii) are owned by the insured or by a member of the insured's family ordinarily residing with the insured;

but does not include an article or thing to which the definition of residential building applies.

residential building
means:

(a) a building used principally and primarily as a place of residence on the site; and

(b) out-buildings used for domestic purposes, being purposes related to the use of the principal residence on the site.

7.1.13(4)   [Exclusions - residential building]  

A residential building does not include:

(a) a hotel; or

(b) a motel; or

(c) a boarding house; or

(d) a building that is in the course of construction; or

(e) a temporary building or structure or a demountable or moveable structure.

REGULATION 7.1.14   MEANING OF RETAIL CLIENT AND WHOLESALE CLIENT : SICKNESS AND ACCIDENT INSURANCE PRODUCT  

7.1.14(1)   [``sickness and accident insurance product'']  

For subparagraph 761G(5)(b)(iv) of the Act, a sickness and accident insurance product is a contract or part of a contract that has either of the following characteristics:

(a) the contract provides insurance cover (whether the cover is limited or restricted in any way) in respect of the insured person contracting a sickness or disease or a specified sickness or disease or sustaining an injury or a specified injury;

(b) if the insured person dies as a result of the sickness, disease or injury, the contract provides insurance cover (whether the cover is limited or restricted in any way) in respect of the death.

7.1.14(2)   [Exclusions]  

A sickness and accident insurance product does not include:

(a) sickness and accident policies which are guaranteed ``renewable'' at the option of the insured or where the insurer guarantees not to cancel the policy in response to a change in the risk where such a policy has been effected for a predetermined period of years in excess of 1 year; or

(b) insurance to or in relation to which the Marine Insurance Act 1909 applies; or

(c) insurance entered into, or proposed to be entered into, for the purposes ofa law (including a law of a State or Territory) that relates to:

(i) workers' compensation; or

(ii) compulsory third party compensation; or

(d) insurance that:

(i) provides cover for the death of, or injury to, a driver of a motor vehicle which is caused by the fault of that person when driving; and

(ii) is provided only in conjunction with, and at no extra cost to, insurance mentioned in subparagraph (c)(ii).

Note: See also regulation 7.9.14B.

REGULATION 7.1.15   MEANING OF RETAIL CLIENT AND WHOLESALE CLIENT : CONSUMER CREDIT INSURANCE PRODUCT  

7.1.15(1)   [``consumer credit insurance product'']  

For subparagraph 761G(5)(b)(v) of the Act, a consumer credit insurance product is a contract or part of a contract that has the following characteristics:

(a) the contract provides insurance cover (whether the cover is limited or restricted in any way) in respect of:

(i) the death of the insured person; or

(ii) the insured person contracting a sickness or disease; or

(iii) the insured person sustaining an injury; or

(iv) the insured person becoming unemployed;

(b) the amount of the liability of the insurer under the contract is to be ascertained by reference to a liability of the insured person under a specified agreement to which the insured person is a party.

7.1.15(2)   [Exclusions]  

A consumer credit insurance product does not include:

(a) insurance to or in relation to which the Marine Insurance Act 1909 applies; or

(b) insurance entered into, or proposed to be entered into, for the purposes of a law (including a law of a State or Territory) that relates to:

(i) workers' compensation; or

(ii) compulsory third party compensation.

REGULATION 7.1.16   MEANING OF RETAIL CLIENT AND WHOLESALE CLIENT : TRAVEL INSURANCE PRODUCT  

7.1.16(1)   [``travel insurance product'']  

For subparagraph 761G(5)(b)(vi) of the Act, a travel insurance product is a contract or part of a contract that provides insurance cover (whether or not the cover is limited or restricted in any way) in respect of one or more of the following:

(a) financial loss in respect of:

(i) fares for any form of transport to be used; or

(ii) accommodation to be used;

in the course of the specified journey in the event that the insured person does not commence or complete the specified journey;

(b) loss of or damage to personal belongings that occurs while the insured person is on the specified journey;

(c) a sickness or disease contracted or an injury sustained by the insured person while on the specified journey;

(d) loss, damage or compensation for an event occurring to the insured person during a specified journey that ordinarily forms a part of insurance commonly regarded as travel insurance, including

(i) loss of cash or credit cards; and

(ii) legal liability; and

(iii) hijack; and

(iv) kidnap; and

(v) ransom.

7.1.16(2)   [Exclusions]  

A travel insurance product does not include:

(a) insurance to or in relation to which the Marine Insurance Act 1909 applies; or

(b) insurance entered into, or proposed to be entered into, for the purposes of a law (including a law of a State or Territory) that relates to:

(i) workers' compensation; or

(ii) compulsory third party compensation.

7.1.16(3)   [``specified journey'']  

In this regulation:

specified journey
means a journey in relation to which insurance cover is provided by the contract.

REGULATION 7.1.17   MEANING OF RETAIL CLIENT AND WHOLESALE CLIENT : PERSONAL AND DOMESTIC PROPERTY INSURANCE PRODUCT  

7.1.17(1)    

For subparagraph 761G(5)(b)(vii) of the Act, a personal and domestic property insurance product is a contract or part of a contract that provides insurance cover (whether or not the cover is limited or restricted in any way) in respect of loss or damage to property that is:

(a) wholly or predominantly used for personal, domestic or household purposes by:

(i) the insured; or

(ii) a relative of the insured; or

(iii) any person with whom the insured resides; and

(b) ordinarily used for that purpose.

7.1.17(2)    
A personal and domestic property insurance product does not include:

(a) insurance to or in relation to which the Marine Insurance Act 1909 applies; or

(b) insurance entered into, or proposed to be entered into, for the purposes of a law (including a law of a State or Territory) that relates to:

(i) workers' compensation; or

(ii) compulsory third party compensation.

7.1.17(3)    

In this regulation:

property
includes any of the following:

(a) moveables;

(b) valuables;

(c) a caravan or mobile home;

(d) an on-site mobile home;

(e) a trailer;

(f) a marine pleasure craft;

(g) a horse;

(h) a domestic pet;

(i) a mobile phone.

relative
means any of the following relatives of an insured person:

(a) mother;

(b) step-mother;

(c) father;

(d) step-father;

(e) brother;

(f) half-brother;

(g) sister;

(h) half-sister;

(i) spouse (including de facto spouse);

(j) son;

(k) step-son;

(l) adopted son;

(m) daughter;

(n) step-daughter;

(o) adopted daughter;

(p) grandparent;

(q) grandchild;

(r) nephew;

(s) niece;

(t) uncle;

(u) aunt;

(v) mother-in-law;

(w) father-in-law.

7.1.17(4)    

For paragraph (1)(a), property is taken to be wholly or predominantly used for personal, domestic or household purposes if the insured gives the insurer a statement, before the insurance product is issued, that the property is intended to be used wholly or predominantly for 1 or more of those purposes.

REGULATION 7.1.17A  

7.1.17A   GENERAL INSURANCE PRODUCTS: MEDICAL INDEMNITY INSURANCE PRODUCTS  

For subparagraph 761G(5)(b)(viii) of the Act, a medical indemnity insurance product is prescribed.

REGULATION 7.1.17B   RETAIL CLIENTS AND WHOLESALE CLIENTS: AGGREGATION OF AMOUNTS FOR PRICE OR VALUE OF FINANCIAL PRODUCT  

7.1.17B(1)   [Application]  

For paragraph 761G(10)(a) of the Act, this regulation applies in relation to a class of financial products that:

(a) are provided by the same product issuer to:

(i) a particular person; or

(ii) an associate of the person; or

(iii) a body corporate controlled and wholly owned by the person; and

(b) are provided at or about the same time.

7.1.17B(2)   [Price]  

The price for the provision of the financial products may be calculated by:

(a) calculating the total price for the provision of all of the financial products in the class; and

(b) treating the total price as the price for the provision to the particular person of a single financial product.

7.1.17B(3)   [Value]  

The value of the financial products may be calculated by:

(a) calculating the total value of all of the financial products in the class; and

(b) treating the total value as the value of a single financial product provided to the particular person.

REGULATION 7.1.17C  

7.1.17C   RETAIL CLIENTS: TRADITIONAL TRUSTEE COMPANY SERVICES  

For subsection 761G(6A) of the Act, a traditional trustee company service is not provided to a person as a retail client if:

(a) the service is provided to the person for use in relation to a business that is not a small business; or

(b) the person to whom the service is provided is a professional investor.

Note Small business is defined in subsection 761G(12) of the Act and professional investor is defined in section 9 of the Act.

REGULATION 7.1.18   RETAIL CLIENTS AND WHOLESALE CLIENTS: PRICE OF INVESTMENT-BASED FINANCIAL PRODUCTS  

7.1.18(1)    
This regulation makes arrangements about the price for the provision of an investment-based financial product.

Note: Under paragraph 761G(7)(a) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the financial product or financial service is provided to the person as a retail client unless the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of that paragraph as being applicable in the circumstances.

Under paragraph 761G(10)(a) of the Act, the regulations may also deal with how a price or value referred to in that paragraph is to be calculated, either generally or in relation to a specified class of financial products.

In general, the "price" of a product will be the amount that is paid to acquire or be issued with the financial product. The test for the price of the product in paragraph 761G(7)(a) of the Act will be determined at or before the time the client acquires, or is issued with, the financial product. If a client pays over $500,000 to acquire or be issued with the financial product, the client will be a wholesale client in respect of the product.

Price

7.1.18(2)    
For paragraph 761G(7)(a) of the Act, the amount applicable in relation to an investment-based financial product is $500,000.

Working out price: general rule

7.1.18(3)    
For paragraph 761G(10)(a) of the Act, the price of an investment-based financial product:

(a)    is the amount that is paid or payable to acquire or purchase the investment-based financial product; and

(b)    does not include any amount paid for or in respect of the investment-based financial product following its issue or acquisition unless the issue or acquisition would not have taken place without an arrangement to pay the amount.

Note: An amount deposited in a deposit account will not generally be regarded as part of the ``price'' paid to acquire or purchase the financial product.

7.1.18(4)    
For subregulation (3), in calculating any amount payable or paid to acquire or purchase the investment-based financial product:

(a)    disregard any amount payable to the extent to which it is to be paid out of money lent by:

(i) the person offering the investment-based financial product;or

(ii) an associate of that person; and

(b)    disregard any amount paid to the extent to which it was paid out of money lent by:

(i) the person offering the investment-based financial product; or

(ii) an associate of that person; and

(c)    include any amount paid or payable to cover:

(i) fees or charges that are paid to the issuer or any other person that relates to the issue of the investment-based financial product; and

(ii) fees or charges that are paid to the issuer or any other person that relates to the issue of the investment-based financial product; and

(d)    despite paragraph (c), disregard any amount of remuneration or other benefits paid or payable to a person for the provision of financial product advice or other related services provided directly to:

(i) the client; or

(ii) another person acting on behalf of the client.

Group products

7.1.18(5)    
If the investment-based financial product is a group product covered by section 1012H of the Act:

(a)    the amount in subregulation (2) is to be used to determine the status of each person who elects, or may elect, to be covered by the investment-based financial product; and

(b)    subregulation (3) is to be used to determine the amount to be paid for the person to be covered by the investment-based financial product.

REGULATION 7.1.19   RETAIL CLIENTS AND WHOLESALE CLIENTS: VALUE OF INVESTMENT-BASED FINANCIAL PRODUCTS  

7.1.19(1)    
This regulation makes arrangements about the value of an investment-based financial product to which a financial service relates.

Note: Under paragraph 761G(7)(a) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the financial product or financial service is provided to the person as a retail client unless the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of that paragraph as being applicable in the circumstances.

Under paragraph 761G(10)(a) of the Act, the regulations may also deal with how a price or value referred to in that paragraph is to be calculated, either generally or in relation to a specified class of financial products.

In general, the "value" of a product will be the amount that the product is worth once it is issued or acquired by the client. It is anticipated that the test for the value of the product in paragraph 761G(7)(a) of the Act will usually be used to assess a client's status as a retail or wholesale client at or before the time that a financial service (eg financial product advice, disposal of the product) is provided to the client in respect of an existing product.

Value

7.1.19(2)    
For paragraph 761G(7)(a) of the Act, the amount applicable in relation to an investment-based financial product is $500,000.

Working out value: general rule

7.1.19(3)    
For paragraph 761G(10)(a) of the Act, the value of an investment-based financial product on a day is:

(a)    if the financial product is a security, or a financial product under paragraph 764A(1)(j) of the Act - the market value of the investment-based financial product; or

(b)    if paragraph (a) does not apply - the amount of money that stands to the client's credit in relation to that investment-based financial product.

7.1.19(4)    
For subregulation (3), in calculating the value of an investment-based financial product:

(a)    disregard any amount standing to the client's credit in relation to the investment-based financial product to the extent that it is to be paid, or was paid, out of money lent by:

(i) the person offering the investment-based financial product; or

(ii) an associate of that person; and

(b)    disregard any amount of fees or charges:

(i) that the product issuer has an actual or accrued right to deduct, or otherwise to have access to, from the value of the investment-based financial product (whether or not the amount has been deducted); or

(ii) that has accrued as at the time that the client's status as a retail or wholesale client is assessed.

Cumulative value of products

7.1.19(5)    
If, at a single point in time:

(a)    a financial service that is being provided to a client is:

(i) financial product advice; or

(ii) arranging for a person to engage in conduct in accordance with subsection 766C(2) of the Act; and

(b)    the financial service is provided in respect of:

(i) more than 1 investment-based financial product; or

(ii) more than 1 income financial stream financial product; or

(iii) a combination of investment-based financial products and income financial stream financial products; and

(c)    either:

(i) the total price for the provision of those financial products is at least $500,000; or

(ii) the price or value of all of those financial products is at least $500,000;

the value of the financial products is taken, for subregulation (3), to be greater than the amount mentioned in subregulation (2).

7.1.19(6)    
Subregulation (5) does not affect the operation of Part 7.9 of the Act, and Part 7.9 of these Regulations, to the extent that they require the provision of a Product Disclosure Statement in relation to the financial product advice.

Note: Although the effect of subregulation (5) is that the value of the investment-based financial products is taken to be at least $500,000 in the circumstances mentioned in that subregulation, a client must still be provided with appropriate product disclosure and other requirements in accordance with Part 7.9 of the Act as a retail client in relation to a particular investment-based financial product where the price of the product is less than $500,000.

In any situation in which a Product Disclosure Statement would be required for a retail client (the situations described in Subdivision B of Division 2 of Part 7.9 of the Act), the limit of $500,000must be reached for any single investment-based financial product, or income stream financial product, before the client will be treated as a wholesale client.

Group products

7.1.19(7)    
If the investment-based financial product is a group product covered by subsection 1012H(1) of the Act:

(a)    the amount in subregulation (2) is to be used to determine the status of each person who elects, or may elect, to be covered by the investment-based financial product; and

(b)    subregulation (3) is to be used to determine the value of the investment-based financial product to the extent that it stands, or will stand, to the credit of, each person who elects, or may elect, to be covered by the investment-based financial product.

Time of assessment

7.1.19(8)    
If a financial services provider needs to assess the status of a client as either retail or wholesale at a particular time in order to ensure that the client complies with the Act, or for any related purpose, the value of a financial product may be assessed at any time, whether or not a financial service is being provided at that time in relation to that product.

Note: Subregulation (8) will ensure that a provider of financial services may assess a client's status at any time (for example, the provider may need to ascertain whether a periodic statement must be sent to the client under section 1017D of the Act because the client is a retail client).

REGULATION 7.1.19A   RETAIL CLIENTS AND WHOLESALE CLIENTS: PRICE OF MARGIN LENDING FACILITIES  

7.1.19A(1)    
This regulation makes arrangements about the price for the provision of a margin lending facility, or a margin lending facility whose limit is proposed to be increased, within the meaning of subsection 761EA(1) of the Act.

Note: Under paragraph 761G(7)(a) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the financial product or financial service is provided to the person as a retail client unless the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of that paragraph as being applicable in the circumstances.

Under paragraph 761G(10)(a) of the Act, the regulations may also deal with how a price or value referred to in that paragraph is to be calculated, either generally or in relation to a specified class of financial products.

In general, the 'price' of a product will be the amount that is paid to acquire or be issued with the financial product. The test for the price of the product in paragraph 761G(7)(a) of the Act will be determined at or before the time the client acquires, or is issued with, the financial product. If a client pays $500 000 or more to acquire or be issued with the financial product, the client will be a wholesale client in respect of the product.

Price

7.1.19A(2)    
For paragraph 761G(7)(a) of the Act, the amount applicable in relation to the margin lending facility is $500 000.

Working out price

7.1.19A(3)    
For paragraph 761G(10)(a) of the Act, the price of a margin lending facility is to be worked out so that it is the same as the value of the secured property or transferred securities contributed by the client for establishing the facility.

7.1.19A(4)    
For paragraph 761G(10)(a) of the Act, the price of a margin lending facility whose limit is proposed to be increased is to be worked out so that it is the sum of:

(a)    the current value of any secured property or transferred securities previously contributed by a client for establishing the facility or increasing the limit; and

(b)    the value of any additional secured property or transferred securities contributed by the client in relation to the latest increase of the limit of the facility.

7.1.19A(5)    
For subregulations (3) and (4), any secured property or transferred securities contributed by the client that is funded by borrowings from a third party is not to be taken into consideration when working out the price of a margin lending facility.

REGULATION 7.1.20   RETAIL CLIENTS AND WHOLESALE CLIENTS: PRICE OF INCOME STREAM FINANCIAL PRODUCTS  

7.1.20(1)    
This regulation makes arrangements about the price for the provision of an income stream financial product.

Note: Under paragraph 761G(7)(a) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the financial product or financial service is provided to the person as a retail client unless the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of that paragraph as being applicable in the circumstances.

Under paragraph 761G(10)(a) of the Act, the regulations may also deal with how a price or value referred to in that paragraph is to be calculated, either generally or in relation to a specified class of financial products.

In general, the "price" of a product will be the amount that is paid to acquire or be issued with the financial product. The test for the price of the product in paragraph 761G(7)(a) of the Act will be determined at or before the time the client acquires, or is issued with, the financial product. If a client pays over $500,000 to acquire or be issued with the financial product, the client will be a wholesale client in respect of the product.

Price

7.1.20(2)    
For paragraph 761G(7)(a) of the Act, the amount applicable in relation to an income stream financial product is $500,000.

Working out price: general rule

7.1.20(3)    
The price of an income stream financial product:

(a)    is the amount that is paid or payable to acquire or purchase the income stream financial product; and

(b)    does not include any amount paid for or in respect of the income stream financial product following its issue or acquisition unless the issue or acquisition would not have taken place without an arrangement to pay the amount.

Note: Additional amounts contributed to an allocated annuity will not generally be regarded as part of the "price" paid to acquire or purchase the financial product.

7.1.20(4)    
For subregulation (3), in calculating any amount payable or paid to acquire or purchase the income stream financial product:

(a)    disregard any amount payable to the extent to which it is to be paid out of money lent by:

(i) the person offering the income stream financial product; or

(ii) an associate of that person; and

(b)    disregard any amount paid to the extent to which it was paid out of money lent by:

(i) the person offering the income stream financial product; or

(ii) an associate of that person; and

(c)    include any amount paid or payable to cover:

(i) fees or charges that are paid to the issuer or any other person that relates to the issue of the income stream financial product; and

(ii) fees or charges that are paid to the issuer or any other person that relates to the issue of the income stream financial product; and

(d)    despite paragraph (c), disregard any amount of remuneration or other benefits paid or payable to a person for the provision of financial product advice or other related services provided directly to:

(i) the client; or

(ii) another person acting on behalf of the client.

REGULATION 7.1.21   RETAIL CLIENTS AND WHOLESALE CLIENTS: VALUE OF INCOME STREAM FINANCIAL PRODUCTS  

7.1.21(1)    
This regulation makes arrangements about the value of an income stream financial product.

Note: Under paragraph 761G(7)(a) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the financial product or financial service is provided to the person as a retail client unless the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of that paragraph as being applicable in the circumstances.

Under paragraph 761G(10)(a) of the Act, the regulations may also deal with how a price or value referred to in that paragraph is to be calculated, either generally or in relation to a specified class of financial products.

In general, the "value" of a product will be the amount that the product is worth once it is issued or acquired by the client. It is anticipated that the test for the value of the product in paragraph 761G(7)(a) of the Act will usually be used to assess a client's status as a retail or wholesale client at or before the time that a financial service (eg financial product advice, disposal of the product) is provided to the client in respect of an existing product.

Value

7.1.21(2)    
For paragraph 761G(7)(a) of the Act, the amount applicable in relation to an income stream financial product is $500,000.

Working out value: general rule

7.1.21(3)    
For paragraph 761G(10)(a) of the Act, the value of an income stream [sic] product is the amount worked out in accordance with any of the following paragraphs:

(a)    if the terms of the income stream financial product provide for the calculation of a commutation value - the commutation value;

(b)    if the terms of the income stream financial product do not permit commutation - the minimum commutation amount calculated in accordance with ordinarily accepted actuarial standards;

(c)    if the income stream financial product is of a kind in relation to which money stands to the client's credit for the income stream financial product - the amount of money standing to the client's credit.

7.1.21(4)    
For subregulation (3), in calculating the value of an income stream financial product:

(a)    disregard any amount standing to the client's credit in relation to the income stream financial product to the extent that it is to be paid, or was to be paid, out of money lent by:

(i) the person offering the income stream financial product; or

(ii) an associate of that person; and

(b)    disregard any amount of fees or charges:

(i) that the product issuer has an actual or accrued right to deduct from the value of the income stream financial product (whether or not the amount has been deducted); or

(ii) that has accrued as at the time that the client's status as a retail or wholesale client is assessed.

7.1.21(5)    
If it is not reasonably practicable to ascertain an amount in accordance with subregulation (3), the value of the income stream product is an amount calculated as follows:

(a)    identify the price for the provision of the income stream;

(b)    subtract the total of any amounts paid out of the income stream (including any regular payments and any capital amounts);

(c)    subtract an amount representing the reasonable administrative fees or other expenses of the issuer (including any costs or fees relating to the product that were disclosed to the client at or before the time the product was issued);

(d)    add interest on:

(i) the amount paid for the income stream financial product; or

(ii) an amount, or a reasonable notional amount, representing the value of the income stream financial product;

based on movements in the rate of the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician.

Group products

7.1.21(6)    
If the income stream financial product is a group product covered by subsection 1012H(1) of the Act:

(a)    the amount in subregulation (2) is to be used to determine the status of each person who elects, or may elect, to be covered by the income stream financial product; and

(b)    subregulation (3) is to be used to determine the value of the income stream financial product to the extent that it stands, or will stand, to the credit of, each person who elects, or may elect, to be covered by the income stream financial product.

Time of assessment

7.1.21(7)    
If a financial services provider needs to assess the status of a client as either retail or wholesale at a particular time in order to ensure that the client complies with the Act, or for any related purpose, the value of a financial product may be assessed at any time, whether or not a financial service is being provided at that time in relation to that product.

Note: Subregulation (7) will ensure that a provider of financial services may assess a client's status at any time (for example, the provider may need to ascertain whether a periodic statement must be sent to the client under section 1017D of the Act because the client is a retail client).

REGULATION 7.1.22   RETAIL CLIENTS AND WHOLESALE CLIENTS: VALUE OF DERIVATIVES  

7.1.22(1)    
This regulation makes arrangements about the value of a derivative:

(a)    

that is a financial product; and

(b)    to which section 765A of the Act does not apply; and

(c)    

to which regulation 7.1.22AA does not apply.

Note: Under paragraph 761G(7)(a) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the financial product or financial service is provided to the person as a retail client unless the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of that paragraph as being applicable in the circumstances.

Under paragraph 761G(10)(a) of the Act, the regulations may also deal with how a price or value referred to in that paragraph is to be calculated, either generally or in relation to a specified class of financial products.

Value

7.1.22(2)    
For paragraph 761G(7)(a) of the Act:

(a)    

the amount applicable in relation to a single derivative is $500,000; and

(b)    if the derivative is included in 2 or more related financial products, the amount applicable in relation to the related financial products is $500,000.

Working out value: general rule

7.1.22(3)    
For paragraph 761G(10)(a) of the Act, the value of a derivative is the face value, or the notional amount in respect of, the financial product (in dollar terms) as at the date on which the relevant arrangement is entered into by the parties.

Time of assessment

7.1.22(4)    
If a financial services provider needs to assess the status of a client as either retail or wholesale at a particular time in order to ensure that the client complies with the Act, or for any related purpose, the value of a financial product may be assessed at any time, whether or not a financial service is being provided at that time in relation to that product.

Note: Subregulation (4) will ensure that a provider of financial services may assess a client's status at any time (for example, the provider may need to ascertain whether ongoing disclosure of a significant event must be sent to the client under section 1017B of the Act because the client is a retail client).

REGULATION 7.1.22AA   RETAIL CLIENTS AND WHOLESALE CLIENTS: CONTRACT FOR DIFFERENCE  

7.1.22AA(1)    
This regulation makes arrangements about the value of a derivative that:

(a)    is a contract for difference; and

(b)    is provided by a person who carries on a business of issuing contracts for difference to other persons ( holders ).

7.1.22AA(2)    
Paragraph 761G(7)(a) of the Act does not apply to the derivative.

7.1.22AA(3)    

In this regulation:

contract for difference
means a derivative to which all of the following apply:

(a) the value of the derivative, or the amount of consideration to be provided under the derivative, is ultimately determined, derived from or varies by reference to (wholly or in part) the change, between the acquisition and termination of the derivative, in the amount or value of an underlying specified under the terms of the derivative;

Note 1: For example, a derivative under which, at termination, the amount of consideration payable depends (wholly or in part) on the change in the level of a stock market index over the term of the derivative.

Note 2: There may be other factors that affect the value of the derivative. For example, fees and costs.

(b) the derivative is not able to be traded on a licensed market;

(c) the derivative:

(i) does not terminate on a fixed date; or

(ii) if the derivative terminates on a fixed date - it is a derivative of a kind that are typically terminated before the fixed date;

Note 1: For example, the derivative may have a fixed termination date if the underlying has a fixed termination date.

Note 2: This means that options, futures, swaps and forward rate agreements will generally not be contracts for difference.

(d) the holder has the right to terminate the derivative;

Note: The terms of the derivative may provide for its termination in other circumstances. For example, on the occurrence of an event of default or on the issuer (other than the holder) exercising a right to terminate the derivative.

(e) on termination, the obligations of the parties are settled in cash or by set-off between the parties.

terminate
, in relation to a derivative, includes the derivative being closed out.

underlying
, in relation to a derivative, means any thing (of any nature whatsoever and whether or not deliverable) other than the derivative, including, for example, one or more of the following:

(a) an asset;

(b) a rate (including an interest rate or exchange rate);

(c) an index;

(d) a commodity.

REGULATION 7.1.22A   RETAIL CLIENTS AND WHOLESALE CLIENTS: VALUE OF FOREIGN EXCHANGE CONTRACTS  

7.1.22A(1)   [Function of regulation]  

This regulation makes arrangements about the value of a foreign exchange contract that is not a derivative.

7.1.22A(2)   Value.  

For paragraph 761G(7)(a) of the Act, the amount applicable to a foreign exchange contract is $500,000.

7.1.22A(3)   Working out value: general rule.  

For paragraph 761G(10)(a) of the Act, the value of a foreign exchange contract is the amount paid or payable under the foreign exchange contract.

REGULATION 7.1.23   RETAIL CLIENTS AND WHOLESALE CLIENTS: PRICE OF NON-CASH PAYMENT FINANCIAL PRODUCTS  

7.1.23(1)    
This regulation makes arrangements about the price for the provision of a non-cash payment financial product.

Note: Under paragraph 761G(7)(a) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the financial product or financial service is provided to the person as a retail client unless the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of that paragraph as being applicable in the circumstances.

In general, the "price" of a product will be the amount that is paid to acquire or be issued with the financial product. The test for the price of the product in paragraph 761G(7)(a) of the Act will be determined at or before the time the client acquires, or is issued with, the financial product. If a client pays over $500,000 to acquire or be issued with the financial product, the client will be a wholesale client in respect of the product.

Price

7.1.23(2)    
For paragraph 761G(7)(a) of the Act, the amount applicable in relation to a non-cash payment financial product is $500,000.

Working out price: general rule

7.1.23(3)    
The price of a non-cash payment financial product:

(a)    is the amount that is paid or payable to acquire or purchase the non-cash payment financial product; and

(b)    does not include any amount paid for or in respect of the non-cash payment financial product following its issue or acquisition unless the issue or acquisition would not have taken place without an arrangement to pay the amount.

Note: Additional amounts paid into a smart card or cheque account after its issue will not generally be regarded as part of the "price" paid to acquire or purchase the financial product.

7.1.23(4)    
For subregulation (3), in calculating any amount payable or paid to acquire or purchase the non-cash payment financial product:

(a)    include any amount paid or payable to cover:

(i) fees or charges that are paid to the issuer or any other person that relates to the issue of the non-cash payment financial product; and

(ii) fees or charges that are paid to the issuer or any other person that relates to the issue of the non-cash payment financial product; and

(b)    despite paragraph (a), disregard any amount of remuneration or other benefits paid or payable to a person for the provision of financial product advice or other related services provided directly to:

(i) the client; or

(ii) another person acting on behalf of the client.

REGULATION 7.1.24   RETAIL CLIENTS AND WHOLESALE CLIENTS: VALUE OF NON-CASH PAYMENT PRODUCTS  

7.1.24(1)    
This regulation makes arrangements about the value of a non-cash payment financial product to which a financial service relates.

Note: Under paragraph 761G(7)(a) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the financial product or financial service is provided to the person as a retail client unless the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of that paragraph as being applicable in the circumstances.

In general, the "value" of a product will be the amount that the product is worth once it is issued or acquired by the client. It is anticipated that the test for the value of the product in paragraph 761G(7)(a) of the Act will usually be used to assess a client's status as a retail or wholesale client at or before the time that a financial service (eg financial product advice, disposal of the product) is provided to the client in respect of an existing product.

Value

7.1.24(2)    
For paragraph 761G(7)(a) of the Act, the amount applicable in relation to a non-cash payment financial product is $500,000.

Working out value: general rule

7.1.24(3)    
For paragraph 761G(10)(a) of the Act, the value of a non-cash payment financial product on a day is the amount of money that stands to the client's credit in respect of that product.

7.1.24(4)    
For subregulation (3), in calculating an amount of money, disregard any amount of fees or charges:

(a)    that the product issuer has an actual or accrued right to deduct, or otherwise to have access to, from the value of the non-cash payment financial product (whether or not the amount has been deducted); or

(b)    that has accrued as at the time that the client's status as a retail or wholesale client is assessed.

Time of assessment

7.1.24(5)    
If a financial services provider needs to assess the status of a client as either retail or wholesale at a particular time in order to ensure that the client complies with the Act, or for any related purpose, the value of a financial product may be assessed at any time, whether or not a financial service is being provided at that time in relation to that product.

Note: Subregulation (5) will ensure that a provider of financial services may assess a client's status at any time (for example, the provider may need to ascertain whether ongoing disclosure of a significant event must be sent to the client under section 1017B of the Act because the client is a retail client).

REGULATION 7.1.25   RETAIL CLIENTS AND WHOLESALE CLIENTS: LIFE RISK INSURANCE AND OTHER RISK-BASED FINANCIAL PRODUCTS  

7.1.25(1)    
This regulation makes arrangements about the value of a risk-based financial product.

7.1.25(2)    
Paragraph 761G(7)(a) of the Act does not apply to a risk-based financial product.

Note: Under paragraph 761G(7)(a) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the financial product or financial service is provided to the person as a retail client unless the price for the provision of the financial product, or the value of the financial product to which the financial service relates, equals or exceeds the amount specified in regulations made for the purposes of that paragraph as being applicable in the circumstances.

Under paragraph 761G(10)(a) of the Act, the regulations may also deal with how a price or value referred to in that paragraph is to be calculated, either generally or in relation to a specified class of financial products.

Under paragraph 761G(10)(b) of the Act, the regulations may also modify the way in which paragraph 761G(7)(a) applies in particular circumstances.

REGULATION 7.1.26  

7.1.26   SUPERANNUATION-SOURCED MONEY  
For the purpose of assessing the price of a financial product, or the value of a financial product to which a financial service relates, under paragraph 761G(7)(a) of the Act, superannuation-sourced money is not to be counted if:

(a)    the financial service provided to a person is:

(i) financial product advice; or

(ii) if the person was a retail client - the provision of a financial product in circumstances in which a Product Disclosure Statement would need to be given to the client under Part 7.9 of the Act (including section 1012A, 1012B, 1012C or 1012IA); and

(b)    the financial product to which the financial service relates is a product other than a non-cash payment financial product; and

(c)    the person who was the holder of the relevant superannuation interest in the regulated superannuation fund was or would have been a retail client under subsection 761G(6) of the Act if they had held or acquired the product after FSR commencement.

Example

If:

(a) the price for an income stream financial product or an investment-based financial product is $700,000; and

(b) the client uses $400,000 of superannuation-sourced money and $300,000 of other funds;

then, unless the client is a wholesale client for another reason, the client will be a retail client due to the operation of paragraph 761G(7)(a) of the Act.

Note: Under subsections 761G(5), (6) and (7) of the Act, general insurance products, superannuation products and RSAs are not financial products to which the restriction on counting superannuation-sourced money towards the price applies. This applies in addition to the exclusion for non-cash payment products under paragraph (b) of this regulation.

REGULATION 7.1.27   RETAIL CLIENTS AND WHOLESALE CLIENTS: EFFECT OF WHOLESALE STATUS  

7.1.27(1)   [When holder of financial product is a wholesale client]  

For subsection 761G(10) of the Act if, at any time, the holder of a financial product is a wholesale client in relation to the product because of paragraph 761G(7)(a) of the Act:

(a) the holder is taken, on and after that time, to be a wholesale client in relation to the product as between the holder and:

(i) the issuer of the product; or

(ii) if a related body corporate of the issuer of the product provides a custodial or depository service to the holder of the product in relation to the product - the related body corporate;

for the period during which the holder holds the product; and

(b) paragraph (a) applies whether or not the holder would, but for that paragraph, have otherwise been or become a retail client in relation to that product at some time.

7.1.27(2)   [Liability of issuer where holder of financial product changes]  

For subsection 761G(10) of the Act, if:

(a) a person is a wholesale client in relation to the product because of paragraph 761G(7)(a) or paragraph (1)(a); and

(b) another person becomes a holder of the financial product; and

(c) the issuer did not know, and could not reasonably be expected to have known:

(i) whether another person had become the holder of the financial product; or

(ii) whether any subsequent holder of the financial product was a retail client or a wholesale client;

the issuer is taken not to be guilty of any offence, or to be liable under civil penalty or civil liability provisions under the Act, merely because the issuer has not treated any subsequent holder of that financial product as a retail client.

REGULATION 7.1.28   RETAIL CLIENTS AND WHOLESALE CLIENTS: ASSETS AND INCOME  

7.1.28(1)    
For subparagraph 761G(7)(c)(i) of the Act, $2.5 million is specified.

7.1.28(2)    
For subparagraph 761G(7)(c)(ii) of the Act, $250,000 is specified.

Note: Under paragraph 761G(7)(c) of the Act, if a financial product is not, or a financial service provided to a person does not relate to, a general insurance product, a superannuation product or an RSA, the product or service is provided to the person as a retail client unless:

(a) the client is a wholesale client under paragraph 761G(7)(a), (b) or (d) of the Act; or

(b) the person who acquires the product or service gives the provider of the product or service, before the provision of the product or service, a copy of a certificate given within the preceding 6 months by a qualified accountant that states that the person:

(i) has net assets of at least the amount specified in regulations made for the purposes of subparagraph 761G(7)(c)(i) of the Act; or

(ii) has a gross income for each of the last 2 financial years of at least the amount specified in regulations made for the purposes of subparagraph 761G(7)(c)(ii) of the Act a year.

Division 3 - When does a person provide a financial service?  

REGULATION 7.1.28AA  

7.1.28AA   PROVISION OF FINANCIAL PRODUCT ADVICE ABOUT DEFAULT FUNDS  

For paragraph 766A(1)(f) of the Act, the provision of financial product advice to an employer about the choice of a fund to which to contribute for the benefit of those employees for whom there is no chosen fund (within the meaning of the Superannuation Guarantee (Administration) Act 1992) is prescribed.

Note: The financial product advice provided to the employer is a financial service provided to a person as a retail client: see paragraph 761G(6)(b) of the Act.

REGULATION 7.1.28A  

7.1.28A   CIRCUMSTANCES IN WHICH A PERSON IS TAKEN TO BE PROVIDED A TRADITIONAL TRUSTEE COMPANY SERVICE  

For subsection 766A(1B) of the Act, a person who is one of the following:

(a) a person who may request an annual information return under subregulation 5D.2.01(3);

(b) a person who requests the preparation of a will, a trust instrument, a power of attorney or an agency arrangement;

is, in relation to an estate management function, prescribed as the person to whom the service is taken to be provided.

REGULATION 7.1.29   CIRCUMSTANCES IN WHICH A PERSON IS TAKEN NOT TO PROVIDE A FINANCIAL SERVICE  

7.1.29(1)    

For paragraph 766A(2)(b) of the Act, a person who provides an eligible service is taken not to provide a financial service if:

(a)    the person provides the eligible service in the course of conducting an exempt service; and

(b)    it is reasonably necessary to provide the eligible service in order to conduct the exempt service; and

(c)    the eligible service is provided as an integral part of the exempt service.

7.1.29(2)    

For this regulation, a person provides an eligible service if the person engages in conduct mentioned in paragraphs 766A(1)(a) to (f) of the Act.

7.1.29(3)    
For this regulation, a person who does any of the following provides an exempt service :

(a)    provides advice in relation to the preparation or auditing of financial reports or audit reports;

(b)    

provides advice on a risk that another person might be subject to and identifies generic financial products or generic classes of financial product that will mitigate that risk, other than advice for inclusion in an exempt document or statement;

(c)    

provides advice on the acquisition or disposal, administration, due diligence, establishment, structuring or valuation of an incorporated or unincorporated entity, if the advice:

(i) is given to a person who is, or is likely to become, an interested party in the entity; and

(ii) to the extent that it is financial product advice - is confined to advice on a decision about:

(A) securities of a body corporate, or related body corporate, that carries on or may carry on the business of the entity; or

(B) interests in a trust (other than a superannuation fund, a managed investment scheme that is registered or required to be registered under Part 5C.1 of the Act, or a notified foreign passport fund), the trustee of which carries on or may carry on the business of the entity in the capacity of trustee; and

(iii) does not relate to other financial products that the body corporate or the trustee of the trust may acquire or dispose of; and

(iv) is not advice for inclusion in an exempt document or statement;

(d)    

provides advice on financial products that are:

(i) securities in a company (other than securities that are to be offered under a disclosure document under Chapter 6D of the Act); or

(ii) interests in a trust (other than a superannuation fund, a managed investment scheme that is registered or required to be registered under Part 5C.1 of the Act, or a notified foreign passport fund);

if the company or trust is not carrying on a business and has not, at any time, carried on a business;

(e)    

provides advice in relation to the transfer of financial products between associates;

(f)    arranges for another person to engage in conduct referred to in subsection 766C(1) in relation to interests in a self managed superannuation fund in the circumstances in paragraphs (5)(b) and (c);

(g)    arranges for another person to engage in conduct referred to in subsection 766C(1), by preparing a document of registration or transfer in order to complete administrative tasks on instructions from the person;

(h)    provides advice about the provision of financial products as security, other than where the security is provided for the acquisition of other financial products.

7.1.29(3A)    

For this regulation, a person also provides an exempt service if the person:

(a) is registered as an auditor under Part 9.2 of the Act; and

(b) performs any of the functions of a cover pool monitor mentioned in subsection 30(4) of the Banking Act 1959.

7.1.29(4)    
For this regulation, a person also provides an exempt service if:

(a)    the person provides advice to another person on taxation issues including advice in relation to the taxation implications of financial products; and

(b)    the person will not receive a benefit (other than from the person advised or an associate of the person advised) as a result of the person advised acquiring a financial product mentioned in the advice, or a financial product that falls within a class of financial products mentioned in the advice; and

(c)    either:

(i) the advice does not constitute financial product advice to a retail client; or

(ii) the advice constitutes financial product advice to a retail client and it includes, or is accompanied by, a written statement that:

(A) the person providing the advice is not licensed to provide financial product advice under the Act; and

(B) taxation is only one of the matters that must be considered when making a decision on a financial product; and

(C) the client should consider taking advice from the holder of an Australian Financial Services Licence before making a decision on a financial product.

7.1.29(5)    
For this regulation, a person also provides an exempt service if:

(a)    the person provides advice in relation to the establishment, operation, structuring or valuation of a superannuation fund, other than advice for inclusion in an exempt document or statement; and

(b)    

the person advised is, or is likely to become:

(i) a trustee; or

(ii) a director of a trustee; or

(iii) an employer-sponsor; or

(iv) a person who controls the management;

of the superannuation fund; and

(c)    except for advice that is given for the sole purpose, and only to the extent reasonably necessary for the purpose, of ensuring compliance by the person advised with the SIS Act (other than paragraph 52(2)(f)), the SIS Regulations (other than regulation 4.09) or the Superannuation Guarantee (Administration) Act 1992 - the advice:

(i) does not relate to the acquisition or disposal by the superannuation fund of specific financial products or classes of financial products; and

(ii) does not include a recommendation that a person acquire or dispose of a superannuation product; and

(iii) does not include a recommendation in relation to a person's existing holding in a superannuation product to modify an investment strategy or a contribution level; and

(d)    if the advice constitutes financial product advice provided to a retail client - the advice includes, or is accompanied by, a written statement that:

(i) the person providing the advice is not licensed to provide financial product advice under the Act; and

(ii) the client should consider taking advice from the holder of an Australian Financial Services Licence before making a decision on a financial product.

7.1.29(6)    

In this regulation:

employer sponsor
(Repealed by FRLI No F2023L01458, Sch 1[164(a)] (effective 1 November 2023).)

exempt document or statement
has the meaning given by subsection 766B(9) of the Act.

generic
means without reference to a particular brand or product issuer.

interested party
means:

(a) an associate within the meaning of Division 2 of Part 1.2 of the Act; or

(b) a manager; or

(c) an officer; or

(d) a trustee or director of a trustee.

self managed superannuation fund
(Repealed by FRLI No F2023L01458, Sch 1[164(b)] (effective 1 November 2023).)

REGULATION 7.1.29A  

7.1.29A   SELF-MANAGED SUPERANNUATION FUNDS  
(Repealed by SLI 2013 No 101, s 4, Sch 2[1] (effective 1 July 2016).)

REGULATION 7.1.30  

7.1.30   INFORMATION AND ADVICE ABOUT VOTING  

For paragraph 766A(2)(b) of the Act, a circumstance in which a person is taken not to provide a financial service within the meaning of paragraph 766A(1)(a) of the Act is that:

(a)    the service provided by the person consists only of advising another person in relation to the manner in which:

(i) voting rights attaching to securities; or

(ii) voting rights attaching to interests in managed investment schemes;

may or should be exercised; and

(b)    the advice is not intended to influence any decision in relation to financial products other than a decision about voting; and

(c)    the advice could not be reasonably be regarded as intended to influence a decision in relation to financial products, other than a decision about voting; and

(d)    the advice does not relate to a vote that relates to a dealing in financial products.

Note: A service that includes advice which is intended to influence the decision to acquire securities in another company would be not provided in circumstances covered by this regulation.

REGULATION 7.1.31  

7.1.31   PASSING ON PREPARED DOCUMENTS  

For paragraph 766A(2)(b) of the Act, a circumstance in which a person ( person 1 ) is taken not to provide a financial service within the meaning of paragraph 766A(1)(a) of the Act is that:

(a) person 1 provides a service to a person; and

(b) the service consists only of passing on, publishing, distributing or otherwise disseminating a document that contains financial product advice; and

(c) the document was provided by another person ( person 2 ); and

(d) person 2 is not acting on behalf of person 1; and

(e) person 1 is not the holder of a financial services licence that authorises person 1 to provide financial product advice; and

(f) person 1 does not select the content of the document, modify the content of the document or otherwise exercise control over the content of the document; and

(g) a reasonable person would not consider that person 1 provided, endorsed or otherwise assumed responsibility for the financial product advice contained in the document.

REGULATION 7.1.32  

7.1.32   REMUNERATION PACKAGES  

For paragraph 766A(2)(b) of the Act, a circumstance in which a person ( person 1 ) is taken not to provide a financial service within the meaning of paragraph 766A(1)(a) of the Act is that:

(a) person 1 provides advice to another person; and

(b) the advice relates only to the structuring of remuneration packages for the other person's employees.

REGULATION 7.1.33  

7.1.33   HANDLING INSURANCE CLAIMS  
(Repealed by FRLI No F2021L00127, Sch 2[4] (effective 19 February 2021).)

REGULATION 7.1.33A  

7.1.33A   ALLOCATION OF FUNDS AVAILABLE FOR INVESTMENT  

For paragraph 766A(2)(b) of the Act, a circumstance in which a person is taken not to provide a financial service within the meaning of paragraph 766A(1)(a) of the Act is the provision of a service that consists only of a recommendation or statement of opinion provided to a person about the allocation of the person's funds that are available for investment among 1 or more of the following:

(a) shares;

(b) debentures;

(c) debentures, stocks or bonds issued, or proposed to be issued, by a government;

(d) deposit products;

(e) managed investment products;

(ea) foreign passport fund products;

(f) investment life insurance products;

(g) superannuation products;

(h) other types of asset.

Note: This regulation does not apply to a recommendation or statement of opinion that relates to specific financial products or classes of financial products.

REGULATION 7.1.33B   GENERAL ADVICE  

7.1.33B(1)   [Application]  

For paragraph 766A(2)(b) of the Act, this regulation applies in relation to the provision of a service by a person to another person in the following circumstances:

(a) the service consists only of general advice in relation to a financial product or class of financial products;

(b) the advice is prepared by a product issuer of the financial product or class of financial products who is not a financial services licensee;

(c) the advice is provided by a financial services licensee whose financial services licence covers the provision of the advice.

7.1.33B(2)   [Not a financial service]  

The product issuer is taken not to provide a financial service within the meaning of paragraph 766A(1)(a) of the Act.

7.1.33B(3)   [Financial service]  

The financial services licensee is taken to provide a financial service within the meaning of paragraph 766A(1)(a) of the Act.

REGULATION 7.1.33C  

7.1.33C   OFF-MARKET OFFERS FOR FINANCIAL PRODUCTS  
(Omitted by SR 2003 No 369, Sch 2[1] (effective 14 January 2004).)

REGULATION 7.1.33D  

7.1.33D   INVESTMENT-LINKED LIFE INSURANCE PRODUCTS  

For paragraph 766A(2)(b) of the Act, a person is taken not to provide a financial service if:

(a)    

the person makes a market for a financial product; and

(b)    the person is the issuer of the product; and

(c)    the product is an investment-linked life insurance policy under an investment-linked contract (within the meaning of subsection 14(4) of the Life Insurance Act 1995).

REGULATION 7.1.33E  

7.1.33E   ADVICE ABOUT THE EXISTENCE OF A CUSTODIAL OR DEPOSITORY SERVICE  

For paragraph 766A(2)(b) of the Act, a person is taken not to provide a financial service if:

(a)    the person provides advice about a custodial or depository service; and

(b)    the advice is not about a financial product; and

(c)    

the advice is not intended to influence, and could not reasonably be regarded as being intended to influence, a decision about a financial product other than a product that is a financial product only because it is an equitable right or interest in:

(i) a share in a body; or

(ii) a debenture of a body; or

(iii) an interest in a registered scheme; or

(iv) an interest in a notified foreign passport fund.

Note: Paragraph (c) of this regulation refers to financial products described in paragraph 92(5)(c) of the Act and in subparagraphs 764A(1)(b)(ii) and (bb)(ii) of the Act.

REGULATION 7.1.33F  SCHOOL BANKING  

7.1.33F(1)   [Not a financial service]  

For paragraph 766A(2)(b) of the Act, a person is taken not to provide a financial service if:

(a) the service is:

(i) arranging for the issue, or the acquisition, of a school banking product; or

(ii) the provision of general advice intended to influence a decision in relation to a school banking product; and

(b) the person:

(i) is employed by a school; or

(ii) provides the service on behalf of a school; and

(c) the person does not receive any financial benefit for the provision of the service; and

(d) the Product Disclosure Statement for the product discloses any commissions or other benefits that the school might receive in connection with the issue of the product.

7.1.33F(2)   ["school banking product"]  

In this regulation:

school banking product
means a basic deposit product, issued by an ADI in the following circumstances:

(a) it is offered for issue to pupils at a school;

(b) there is no regular account keeping fee charged for the product.

REGULATION 7.1.33G  

7.1.33G   CERTAIN GENERAL ADVICE THAT DOES NOT ATTRACT REMUNERATION ETC.  
For subsection 766A(2) of the Act, a person (the advisor ) is taken not to provide a financial service if:

(a) the advisor gives advice to another person; and

(b) the advice:

(i) is not about a particular financial product or an interest in a particular financial product; and

(ii) is not personal advice; and

(c) the advice:

(i) is not intended to influence the other person in making a decision in relation to a particular financial product or an interest in a particular financial product; or

(ii) could not reasonably be regarded as being intended to have such an influence; and

(d) by giving the advice neither the advisor, nor an associate of the advisor, receives any remuneration (including commission) or other benefit that is related to the advice given apart from remuneration (including commission) or other benefit that the advisor or the associate would have received if the advice was not given.

REGULATION 7.1.33H  

7.1.33H   CERTAIN GENERAL ADVICE GIVEN BY A FINANCIAL PRODUCT ISSUER  
For subsection 766A(2) of the Act, a financial product issuer is not taken to provide a financial service if:

(a) the issuer gives advice to another person about:

(i) a particular financial product or class of financial products issued by the issuer; or

(ii) an interest in a particular financial product or a class of financial products issued by the issuer; and

(b) the advice is not personal advice; and

(c) the advice is given to the person at the same time as the issuer:

(i) advises the person that the issuer is not licensed to provide financial product advice in relation to the product, class or interest, as the case may be; and

(ii) recommends to the person that the person obtain a Product Disclosure Statement, if appropriate, and read it before making a decision to acquire the product or a product from the class of products, as the case may be; and

(iii) if it is advice about the offer, issue or sale of a financial product - notifies the person about the availability or otherwise of a cooling-off regime that applies in respect of the acquisition of the product, a product from the class of products or an interest in a product as the case may be (whether the regime is provided for by law or otherwise).

Division 4 - Dealings in financial products  

REGULATION 7.1.34   CONDUCT THAT DOES NOT CONSTITUTE DEALING IN A FINANCIAL PRODUCT  

7.1.34(1)   [No application to margin lending facility]  

This regulation does not apply in relation to a margin lending facility.

7.1.34(2)   [Conduct not constituting dealing]  

For subsection 766C(7) of the Act, the following conduct does not constitute dealing in a financial product:

(a) the enforcement of rights under a credit facility, including the enforcement of rights by a person acting under a power of attorney;

(b) the disposal of a financial product that is subject to a mortgage or the transfer of such a product to the mortgagor, whether the disposal or transfer is carried out at the direction of the mortgagor or occurs as a result of the mortgagor fulfilling its obligations under the mortgage.

Example for paragraph (a)

A mortgagee exercising a power of sale under a mortgage.

REGULATION 7.1.35   CONDUCT THAT DOES NOT CONSTITUTE DEALING IN A FINANCIAL PRODUCT  

7.1.35(1)   [Not dealing in a financial product]  

For subsection 766C(7) of the Act, conduct is not taken to be dealing in a financial product if:

(a) the conduct is of a kind:

(i) mentioned in paragraph 766C(1)(a), (d) or (e) of the Act; or

(ii) mentioned in paragraph 766C(1)(b) of the Act, where it is the issue of a beneficial interest in a financial product, that arises from conduct that would constitute providing a custodial or depository service but for the operation of regulation 7.1.40; and

(b) the conduct is carried out by a person ( person 1 ) in relation to a product that person 1 holds on trust for, or on behalf of, another person ( person 2 ) and the holding of that financial product would not constitute the provision of a custodial or depository service because of paragraphs 7.1.40(a), (b), (c), (d), (g) and (i).

7.1.35(2)   [Exemption]  

Subregulation (1) does not apply to conduct carried out by person 1 in relation to a financial product that is held under a custodial arrangement as defined in section 1012IA of the Act unless:

(a) person 2 is an associate of person 1; or

(b) the financial product is held in the manner mentioned in paragraph 7.1.40(d).

REGULATION 7.1.35A  

7.1.35A   CONDUCT THAT DOES NOT CONSTITUTE DEALING IN A FINANCIAL PRODUCT - LAWYERS ACTING ON INSTRUCTIONS  

For subsection 766C(7) of the Act, a financial service provided by a lawyer is taken not to be dealing in a financial product if:

(a) the financial service consists of:

(i) arranging for a person to engage in conduct referred to in subsection 766C(1) of the Act; or

(ii) dealing as an agent or otherwise on behalf of a client, an associate of a client or a relative of a client; and

(b) the lawyer is acting:

(i) on the instructions of the client, an associate of the client or a relative of the client; and

(ii) in his or her professional capacity; and

(iii) in the ordinary course of his or her activities as a lawyer; and

(c) the financial service can reasonably be regarded as a necessary part of those activities; and

(d) the lawyer has not received, and will not receive, a benefit in connection with those activities other than:

(i) the payment of professional charges in relation to those activities; and

(ii) reimbursement for expenses incurred or payment on account of expenses to be incurred on behalf of the client, an associate of the client or a relative of the client;

from the client or from another person on behalf of the client.

REGULATION 7.1.35B  

7.1.35B   CONDUCT THAT DOES NOT CONSTITUTE DEALING IN A FINANCIAL PRODUCT - ISSUING CARBON UNITS, AUSTRALIAN CARBON CREDIT UNITS OR ELIGIBLE INTERNATIONAL EMISSIONS UNITS  

For subsection 766C(7) of the Act, a financial service provided by a person is taken not to be dealing in a financial product if:

(a) the financial product is a carbon unit, an Australian carbon credit unit or an eligible international emissions unit; and

(b) the person is:

(i) the Clean Energy Regulator; or

(ii) the Clean Development Mechanism Executive Board; or

(iii) the government of a country other than Australia; or

(iv) an authority acting on behalf of the government of a country other than Australia; and

(c) the financial service consists of issuing the carbon unit, Australian carbon credit unit or eligible international emissions unit.

REGULATION 7.1.35C  

7.1.35C   CONDUCT THAT DOES NOT CONSTITUTE DEALING IN A FINANCIAL PRODUCT - CARBON UNITS, AUSTRALIAN CARBON CREDIT UNITS OR ELIGIBLE INTERNATIONAL EMISSIONS UNITS  

For subsection 766C(7) of the Act, a financial service provided by a person is taken not to be dealing in a financial product if:

(a) the financial product is a carbon unit, an Australian carbon credit unit or an eligible international emissions unit; and

(b) the financial service consists of dealing in the carbon unit, Australian carbon credit unit or eligible international emissions unit on behalf of:

(i) a related body corporate of the person; or

(ii) an associated entity of the person; and

(c) the related body corporate or associated entity is an entity that is a liable entity entered in the information database under section 183 of the Clean Energy Act 2011.

Division 5 - Custodial or depository services  

REGULATION 7.1.40   CONDUCT THAT DOES NOT CONSTITUTE THE PROVISION OF A CUSTODIAL OR DEPOSITORY SERVICE  

7.1.40(1)    
For paragraph 766E(3)(e) of the Act, conduct that is mentioned in subsection 766E(1) of the Act does not constitute providing a custodial or depository service if:

(a)    

the financial product held by the provider is a basic deposit product or is an account mentioned in subsection 981B(1) of the Act; or

(b)    the client is an associate of the provider (within the meaning of Division 2 of Part 1.2 of the Act); or

(c)    the provider and its associates have no more than 20 clients in aggregate for all custodial or depository services that they provide; or

(d)    the financial product is held as part of the arrangements for securing obligations under:

(i) a credit facility; or

(ii) a debenture that is held as trustee under a trust deed:

(A) entered into under section 283AA of the Act or former section 260FA of the Corporations Law of a State or Territory; or

(B) mentioned in former section 1052 of the Corporations Law of a State or Territory; or

(e)    the provider is a participant in a licensed market and the financial product held is a derivative acquired on the licensed market by the provider on behalf of a client; or

(f)    the provider is a participant in a licensed clearing and settlement facility and the financial product held is a derivative registered on the licensed clearing and settlement facility by the provider on behalf of the client; or

(g)    the financial product is held under:

(i) an order of a court; or

(ii) an order of a board or tribunal established under a law of a State or Territory; or

(iii) a direction by the holder of a statutory office established under a law of a State or Territory; or

(h)    the service is provided by a lawyer in the following circumstances:

(i) the financial service consists of acquiring, holding or disposing of a cash management trust interest, being an interest to which a law of a State or Territory relating to the audit of trust or controlled monies applies;

(ii) the lawyer is acting:

(A) on instructions from the client, an associate of the client or a relative of the client; and

(B) in his or her professional capacity; and

(C) in the ordinary course of his or her activities as a lawyer;

(iii) the financial service can reasonably be regarded as a necessary part of those activities;

(iv) the lawyer has not received, and will not receive, a benefit in connection with the activities other than:

(A) the payment of professional charges related to those activities; and

(B) reimbursement for expenses incurred or payment on account of expenses to be incurred on behalf of the client, an associate of the client or a relative of the client;

from the client or from another person on behalf of the client; or

(i)    the financial product is held by a trustee appointed under:

(i) a law of a State or Territory to administer monies awarded to a person as compensation; or

(ii) a trust formed for a charitable purpose.

7.1.40(2)    

For paragraph 766E(3)(e) of the Act, conduct that is mentioned in subsection 766E(1) of the Act does not constitute providing a custodial or depository service if the financial product is an Australian carbon credit unit that has been issued to:

(a)    a special native title account in accordance with section 49 of the Carbon Credits (Carbon Farming Initiative) Act 2011; or

(b)    a nominee account in accordance with section 141 of that Act.

Division 6 - Operating a financial market  

REGULATION 7.1.50  

7.1.50   OPERATING A FINANCIAL MARKET  

For paragraph 767A(2)(a) of the Act, the following circumstances are specified as circumstances in which the conduct of a person making or accepting offers or invitations to acquire or dispose of financial products, on the person's own behalf or on behalf of one party to the transaction only, constitutes the operating of a financial market:

(a)    the Clean Energy Regulator making or accepting offers or invitations to acquire or dispose of carbon units on its own behalf, or on behalf of the Commonwealth only, in the course of conducting an auction of carbon units under the Clean Energy Act 2011;

(b)    a person making or accepting offers or invitations to acquire or dispose of carbon units on behalf of the Clean Energy Regulator only, in the course of assisting the Clean Energy Regulator to conduct an auction of carbon units under the Clean Energy Act 2011.

PART 7.2 - LICENSING OF FINANCIAL MARKETS  

Division 1 - Market licensees' obligations  

REGULATION 7.2.01  

7.2.01   OBLIGATION TO INFORM ASIC OF CERTAIN MATTERS: CONTRAVENTIONS OF LICENCE OR ACT  
For paragraph 792B(3)(b) of the Act, a matter to which that paragraph relates is any matter that, in the opinion of a market licensee, constitutes or may constitute a contravention of:

(a) a condition of a licence held by a financial services licensee; or

(b) Subdivision A or B of Division 2 of Part 7.8 of the Act; or

(c) Division 3 of Part 7.8 of the Act; or

(d) Subdivision B of Division 6 of Part 7.8 of the Act.

REGULATION 7.2.02   OBLIGATION TO INFORM ASIC OF CERTAIN MATTERS: BECOMING DIRECTOR, SECRETARY OR EXECUTIVE OFFICER OF MARKET LICENSEE  

7.2.02(1)   [Application]  

This regulation applies if a person becomes a director, secretary or executive officer of a market licensee or of a holding company of a market licensee (including when the person changes from one of those positions to another).

7.2.02(2)   [Information to be given to ASIC]  

For subsection 792B(5) of the Act, the information to be given to ASIC by the market licensee is:

(a) the person's name and contact details; and

(b) the date of appointment to the position; and

(c) the person's educational qualifications and financial market experience; and

(d) if the market licensee is aware of any details of a conviction of the kind mentioned in subsection 206B(1) of the Act - the details; and

(e) whether the market licensee knows whether the person:

(i) is an undischarged bankrupt; or

(ii) has entered into a deed of arrangement or composition of a kind mentioned in subsections 206B(3) and (4) of the Act;

and, if the market licensee knows the information, details of what the market licensee knows.

REGULATION 7.2.03   OBLIGATION TO INFORM ASIC OF CERTAIN MATTERS: CEASING TO BE DIRECTOR, SECRETARY OR EXECUTIVE OFFICER OF MARKET LICENSEE  

7.2.03(1)   [Application]  

For subsection 792B(5) of the Act, this regulation applies if a person ceases to be a director, secretary or executive officer of a market licensee or of a holding company of a market licensee (including when the person changes from one of those positions to another).

7.2.03(2)   [Information to be given to ASIC]  

The information to be given to ASIC by the market licensee is:

(a) the person's name and contact details; and

(b) the position that the person held; and

(c) the date on which the person ceased to hold the position; and

(d) if the person ceases to be a director, secretary or executive officer because the person is changing from the position to another in the company, the new position; and

(e) if the reason for ceasing to hold the position is:

(i) because of a contravention of the Corporations Act or another law of a State or Territory; or

(ii) because the person has become an undischarged bankrupt;

details of the reason.

REGULATION 7.2.04   OBLIGATION TO INFORM ASIC OF CERTAIN MATTERS: VOTING POWER IN MARKET LICENSEE  

7.2.04(1)   [Application]  

This regulation applies if a market licensee becomes aware that a person has come to have, or has ceased to have, more than 15% of the voting power in the market licensee or in a holding company of the market licensee.

7.2.04(2)   [Information to be given to ASIC]  

For subsection 792B(5) of the Act, the information to be given to ASIC by the market licensee is:

(a) the person's name and contact details; and

(b) if known by the market licensee, the date on which the person came to have, or ceased to have, more than 15% of the voting power; and

(c) if the market licensee knows the voting power that the person had immediately before the person came to have, or ceased to have, more than 15% of the voting power, that voting power; and

(d) whether the market licensee knows the manner in which the person came to have, or ceased to have, more than 15% of the voting power, and, if the market licensee knows the manner, details of what the market licensee knows.

REGULATION 7.2.05   GIVING ASIC INFORMATION ABOUT A LISTED DISCLOSING ENTITY  

7.2.05(1)   [Prescribed information]  

For subsection 792C(2) of the Act, the following information is prescribed:

(a) a stock exchange automated trading system notification message;

(b) an Australian Stock Exchange voiceline announcement.

7.2.05(2)   [Definitions]  

In this regulation:

Australian Stock Exchange voiceline announcement
means a messagefrom the Australian Stock Exchange that is:

(a) spoken over an announcement system; and

(b) a summary of information lodged with the Australian Stock Exchange by a company or other entity that is included in the official list of a financial market.

Stock exchange automated trading system notification message
means a brief message that is:

(a) transmitted to computer terminals of persons linked to the Stock Exchange Automated Trading System; and

(b) a summary of information lodged with the Australian Stock Exchange by a company or other entity that is included in the official list of a financial market.

REGULATION 7.2.06  

7.2.06   ANNUAL REPORT OF MARKET LICENSEE  
For subsection 792F(2) of the Act, if an annual report by a market licensee does not contain any of the following information, the information must accompany the annual report:

(a) a description of the activities the market licensee has undertaken in the financial year;

(b) the resources (including financial, technological and human resources) that the market licensee had available, and used, in order to ensure that it has complied with its obligations in Chapter 7 of the Act, and, in particular, the obligation contained in subparagraph 792A(1)(c)(i) of the Act;

(c) an analysis of the extent to which the market licensee considers that the activities undertaken, and resources used, have resulted in full compliance with all its obligations under Chapter 7 of the Act.

Division 2 - The market's operating rules and procedures  

REGULATION 7.2.07  

7.2.07   CONTENT OF LICENSED MARKET'S OPERATING RULES  

For subsection 793A(1) of the Act, the following matters are matters with which the operating rules of a licensed market must deal to the extent that a matter is not dealt with in the market integrity rules:

(a) access to the licensed market, including the criteria for determining persons who are eligible to be participants;

(b) ongoing requirements for participants, including:

(i) the conduct of participants in relation to the licensed market with the objective of promoting honesty and fair practice; and

(ii) provision for the monitoring of participants' compliance with the operating rules; and

(iii) (Omitted)

(iv)provision for the expulsion or suspension of, or enforcement action against, a participant for breaches of the operating rules; and

(v) provision for the expulsion or suspension of a participant for breaches of Chapter 7 of the Act, or regulations made under that Chapter; and

(vi) (Omitted)

(vii) provision for the expulsion or suspension of, or enforcement action against, a participant for a failure or expected failure to meet the participant's obligations under commitments entered into on the licensed market;

(c) execution of orders;

(d) the way in which disorderly trading conditions are to be dealt with, including disruptions to trading;

(e) the class or classes of financial products that are to be dealt with on the licensed market by participants, including:

(i) a description of the nature of each class of financial product; and

(ii) for a class of derivatives, if most of the terms of the arrangement constituting the derivative are determined in advance by the market operator (including price, if determined in advance):

(A) the standard terms of the arrangement that constitutes the derivative; and

(B) a description of the asset, rate, index, commodity or other thing that is used for the matters mentioned in paragraph 761D(1)(c) of the Act;

(f) the terms of the contract formed between participants that enter into a transaction through the licensed market (to the extent to which paragraph (e) does not require that information);

(g) if appropriate, the listing of entities, including:

(i) admitting an entity to the official list of the licensed market for the purpose of enabling financial products of the entity to be traded on the licensed market, and removing an entity from the official list; and

(ii) the activities or conduct of an entity that is included on the official list of the licensed market, including a description of the arrangements for the disciplining of the entity for a breach of the operating rules;

(h) mechanisms through which market-related disputes between participants may be settled (for example, arbitration arrangements);

(i) the power to facilitate the assessment and, if appropriate, the investigation of market-related disputes between participants;

(j) any obligations on participants and listed entities that are necessary to ensure that the market licensee is able to comply with subparagraph 792A(1)(c)(i) of the Act and regulations made under section 798E of the Act.

REGULATION 7.2.08  

7.2.08   CONTENT OF LICENSED MARKET'S WRITTEN PROCEDURES  

For subsection 793A(2) of the Act, the following matters are matters in respect of which a licensed market must have written procedures to the extent that the market integrity rules do not deal with a matter:

(a) exchange of appropriate information with:

(i) clearing and settlement facilities; and

(ii) other financial markets; and

(iii) ASIC;

(b) arrangements to ensure the integrity and security of systems (including computer systems);

(c) arrangements for the monitoring of compliance by participants and listed entities with the operating rules of the licensed market;

(d) the assessment, investigation (if justified) and settlement of market-related disputes between participants;

(e) (Omitted)

(f) the recording and effective disclosure of transactions;

(g) the provision of information about market processes.

Division 3 - Powers of the Minister and ASIC  

REGULATION 7.2.09  

7.2.09   AGENCIES FOR COMPLIANCE ASSESSMENT  
For paragraph 794C(5)(d) of the Act, the following agencies are prescribed:

(a) the Clean Energy Regulator;

(aa) the Australian Competition and Consumer Commission;

(b) the Australian Prudential Regulation Authority;

(c) the Australian Taxation Office;

(d) the Australian Transaction Reports and Analysis Centre;

(e) an authority of a State or Territory having functions and powers similar to those of the Director of Public Prosecutions;

(f) the police force or service of each State and the Northern Territory;

(g) the Department of Consumer and Employment Protection of Western Australia;

(ga) the Commissioner of State Revenue of Western Australia;

(h) the Department of Fair Trading of New South Wales;

(i) the Office of Fair Trading and Business Affairs of Victoria;

(ia) the State Revenue Office of Victoria;

(j) the Office of Consumer Affairs of Queensland;

(ja) the Office of State Revenue of Queensland;

(k) the Office of Consumer and Business Affairs of South Australia;

(l) the Office of Consumer Affairs and Fair Trading of Tasmania;

(la) the Department of Treasury and Finance of Tasmania;

(m) the Consumer Affairs Bureau of the Australian Capital Territory;

(n) the Fair Trading Group of the Northern Territory.

Division 4 - The Australian market licence: applications (general)  

REGULATION 7.2.10  

7.2.10   APPLICATION OF DIVISION 4  
This Division applies in relation to a body corporate that applies for an Australian market licence that may be granted under subsection 795B(1) of the Act.

REGULATION 7.2.11  

7.2.11   INFORMATION  
For paragraph 795A(1)(a) of the Act, the following information is required as part of an application by the body corporate for an Australian market licence:

(a) the body corporate's name, address and contact details;

(b) the name, address and contact details of any person who will act on behalf of the body corporate in relation to the application;

(c) details of the body corporate's major shareholders and organisation, including:

(i) the name, address and contact details of each director; and

(ii) the name, address and contact details of each secretary; and

(iii) the name, address and contact details of each executive officer of the body corporate; and

(iv) whether any director, secretary or executive officer is, or has been, disqualified from managing a corporation under a law of this jurisdiction or another jurisdiction;

(d) a description of the body corporate's business or functions, other than the operation of the proposed market;

(e) details of the financial products to be traded on the proposed market;

(f) whether the proposed market will involve the provision of a financial product to a person as a retail client;

(g) details of the clearing and settlement arrangements that have been made, or are proposed, for the proposed market;

(h) details of the technological resources that will be used in the operation of the market, including details of:

(i) the purpose of the resources; and

(ii) how the resources are to be supplied, managed, maintained and upgraded; and

(iii) how the security of information technology systems is to be protected;

(i) details of the arrangements for dealing with conflicts between the body corporate's commercial interests and its obligations to supervise and monitor the market;

(j) details of the arrangements for the supervision of employees of the body corporate who have duties and responsibilities of a kind that supervision of the employees is necessary to protect the integrity of the operation of the proposed market;

(k) if the ACCC has made a decision in relation to the market that the body corporate will operate - details of the decision.

REGULATION 7.2.12  

7.2.12   DOCUMENTS  
For paragraph 795A(1)(b) of the Act, the following documents are required as part of an application by the body corporate for an Australian market licence:

(a) the body corporate's current or proposed operating rules and written procedures;

(b) if applicable - the body corporate's constitution;

(c) a copy of any agreement material to:

(i) the way in which the proposed market is to be operated; and

(ii) the way in which the financing of the proposed market, and the other resources used to operate it, will be organised; and

(iii) the body corporate's constitution or governance; and

(iv) the appointment or employment of directors, secretaries and executive officers of the body corporate;

(d) a copy of any agreement, or proposed agreement, relating to the outsourcing or delegation of a function, facility or service in relation to the proposed market by the body corporate to another person;

(e) if the body corporate is a disclosing entity - a copy of each half-year financial report of the body corporate for:

(i) the period of 3 years immediately before the application was made; or

(ii) the shorter period in which the body corporate has carried on a business;

(f) if the body corporate is not a disclosing entity - a copy of each annual financial report of the body corporate for:

(i) the period of 3 years immediately before the application was made; or

(ii) the shorter period in which the body corporate has carried on a business;

(g) if the body corporate is a related body corporate - a copy of the relevant consolidated annual and half-year financial reports for:

(i) the period of 3 years immediately before the application was made; or

(ii) the shorter period in which the body corporate has carried on a business;

(h) a report, by a qualified person who is independent of the body corporate, about the anticipated financial resource requirements of the proposed market, including details of:

(i) the total anticipated fixed expenditure and variable expenditure for the first 12 months of operation of the market; and

(ii) the total anticipated revenue for the first 12 monthsof operation of the market and other sources of financial resources; and

(iii) the body corporate's contingency arrangements in the event of circumstances occurring that affect the body corporate's ability to operate the market;

(i) details of the body corporate's business plan, or other strategic planning, for the first 12 months of operation of the market, that are not included in the other documents mentioned in this regulation.

Division 5 - The Australian market licence: applications (financial market in foreign country)  

REGULATION 7.2.13  

7.2.13   APPLICATION OF DIVISION 5  
This Division applies in relation to a body corporate that applies for an Australian market licence that may be granted under subsection 795B(2) of the Act.

REGULATION 7.2.14  

7.2.14   INFORMATION  
For paragraph 795A(1)(a) of the Act, the following information is required as part of an application by the body corporate for an Australian market licence:

(a) the body corporate's name, address and contact details in this jurisdiction;

(b) the address and contact details of the body corporate's principal place of business in the foreign country in which its financial market is located (the home country );

(c) whether the body corporate is registered under Division 2 of Part 5B.2 of the Act;

(d) details of the financial products that are traded on the financial market in the home country;

(e) details of the clearing and settlement arrangements for the financial market in the home country;

(f) details of the body corporate's major shareholders and organisation, including any details that have not already been given to ASIC in accordance with Division 2 of Part 5B.2 of the Act of:

(i) each person whose duties are comparable to those of a director; and

(ii) each person whose duties are comparable to those of a secretary; and

(iii) each person whose duties are comparable to those of an executive officer of the body corporate.

REGULATION 7.2.15  

7.2.15   DOCUMENTS  
For paragraph 795A(1)(b) of the Act, the documents required as part of an application by the body corporate for an Australian market licence are:

(a) the body corporate's authorisation to operate the financial market in its home country, including a copy of any conditions imposed on the body corporate's operation of its financial market in the home country; and

(b) sufficient documentation to allow the Minister to be satisfied that the regulation of the financial market in its home country is equivalent to regulation under the Act.

Example for paragraph (b)

Copies of the relevant legislation, rules and procedures in the home country.

Division 6 - The Australian market licence: other matters  

REGULATION 7.2.16   POTENTIAL CONFLICT SITUATIONS  

7.2.16(1)    
For subsection 798E(1) of the Act, this regulation applies in relation to specific and significant conflicts, or potential conflicts that would be specific and significant, between:

(a) the commercial interests of Australian Stock Exchange Limited ( ASX ) in dealing with a body (the competitor ) that operates a business with which:

(i) ASX is in competition; or

(ii) a subsidiary of ASX is in competition; or

(iii) a joint venture (however described) to which ASX is a party is in competition; or

(iv) a joint venture (however described) to which a subsidiary of ASX is a party is in competition; and

(b) the need for ASX to ensure that the market operated by it operates in the way mentioned in paragraph 792A(1)(a) of the Act.

7.2.16(2)    
The competitor may lodge with ASIC in the prescribed form, an application for ASIC to decide that ASIC, instead of ASX, will make decisions and take action (or require ASX to take action on ASIC's behalf) in relation to:

(a) if the competitor is seeking to be listed - the compliance by the competitor with the applicable listing rules of the market operated by ASX; or

(b) if the competitor is listed on the market operated by ASX - the compliance by the competitor with the applicable listing rules of the market operated by ASX.

7.2.16(3)    
As soon as practicable after receiving an application under subregulation (2), ASIC must:

(a) consider whether a conflict, or potential conflict, exists as described in subregulation (1); and

(b) if it considers that a conflict, or potential conflict, exists - consider whether, having regard to ASX's obligations under subparagraph 792A(1)(c)(i) of the Act, the conflict, or potential conflict, would be dealt with more appropriately and efficiently by a means other than taking the action mentioned in subregulation (2); and

(c) decide whether (and to what extent):

(i) to make decisions and take action; or

(ii) to require ASX to take action on ASIC's behalf;

in relation to the matters mentioned in paragraphs (2)(a) and (b).

7.2.16(4)    
If ASIC decides to make decisions and take action (or to require ASX to take action on ASIC's behalf) as mentioned in subregulation (2), ASIC:

(a) may consult with ASX and the competitor to identify the listing rules of the market operated by ASX for which ASIC needs to make the decisions and take the action; and

(b) must, as soon as practicable, decide the extent of ASIC's role, having regard to:

(i) the rationale for the listing rules of the market operated by ASX; and

(ii) the desirability of treating the competitor consistently with other entities listed, or seeking to be listed, on that market; and

(iii) the extent to which action taken by ASIC is severable from the wider supervision of the competitor's compliance with the listing rules; and

(iv) its consultations (if any) with the competitor and ASX.

7.2.16(5)    
ASIC must, as soon as practicable, advise ASX and the competitor, in writing, of decisions under paragraphs (3)(c) and (4)(b).

7.2.16(6)    
If ASIC decides to make decisions and take action (or to require ASX to take action on ASIC's behalf) as mentioned in subregulation (2):

(a) the decisions made and actions taken have effect despite anything in the listing rules of the market operated by ASX; and

(b) decisions made and actions taken by ASIC (or action taken by ASX on ASIC's behalf) have effect as if they were decisions made and actions taken under the listing rules.

Note 1: It is expected that the listing rules of the market will support ASIC's power to take a supervisory role in relation to compliance with some or all of the listing rules.

Note 2: Under section 246 of the Australian Securities and Investments Commission Act 2001, ASIC is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred or expressed to be conferred by or under the corporations legislation.

Note 3: The powers available to ASIC include the power:

(a) to grant, or not to grant, waivers of the listing rules; and

(b) to impose conditions on which the grant of a waiver is made.

7.2.16(7)    
If ASIC believes, on reasonable grounds, that:

(a) the period during which decisions will be made and action will be taken in a particular case is likely to be more than 3 months; and

(b) the decisions and actions likely to be required are not adequately reflected in the listing rules of the market operated by ASX;

ASIC must notify ASX, in writing, of its belief.

7.2.16(8)    
ASX must, as soon as practicable after being notified under subregulation (7), amend the listing rules of the market operated by ASX to the extent necessary to meet ASIC's concerns.

Note: Amendments of the listing rules are subject to procedural requirements, including possible disallowance, mentioned in sections 793D and 793E of the Act.

7.2.16(9)    
If ASIC decides that it is no longer necessary for decisions to be made and action to be taken in relation to the particular conflict or potential conflict, ASIC must notify ASX and the competitor of its decision as soon as practicable.

7.2.16(10)    
ASX may repeal any listing rule or amendment made for subregulation (8) only if:

(a) the repeal or amendment is necessary or convenient to meet ASIC's concerns more effectively; or

(b) ASIC has notified ASX under subregulation (9).

7.2.16(11)    
Paragraph (10)(b) does not prevent ASIC from:

(a) reviewing a particular conflict or potential conflict; and

(b) deciding, at any time (with or without complying with paragraph (4)(a)), that it has again become necessary for ASIC to make decisions and take action (or for ASIC to require ASX to take action on ASIC's behalf) in relation to the conflict or potential conflict.

7.2.16(12)    
If ASIC makes the decision mentioned in paragraph (11)(b), ASIC must notify ASX and the competitor of its decision as soon as practicable.

7.2.16(13)    
For this regulation, ASX must:

(a) give ASIC the information and documentation that ASIC reasonably needs to make decisions and take action under this regulation; and

(b) establish administrative and procedural arrangements for that purpose.

7.2.16(14)    
A competitor may notify ASIC that the competitor no longer wishes ASIC to make decisions and take action (or for ASIC to require ASX to take action on ASIC's behalf) in relation to the conflict or potential conflict.

7.2.16(15)    

If ASIC is notified under subregulation (14), ASIC must, as soon as practicable:

(a) decide whether it will cease to make the decisions and take the action (or cease to require ASX to take action on ASIC's behalf); and

(b) notify ASX and the competitor of its decision.

7.2.16(16)    

If ASIC decides to cease to make decisions and take action (or to cease to require ASX to take action on ASIC's behalf), ASIC must cease to make decisions and take action (or must cease to require ASX to take action on ASIC's behalf) in relation to the conflict or potential conflict.

7.2.16(17)    

If ASIC decides not to cease to make decisions and take action (or not to cease to require ASX to take action on ASIC's behalf), ASIC must continue to make decisions and take action (or must require ASX to take action on ASIC's behalf) in relation to the conflict or potential conflict.

PART 7.2A - SUPERVISION OF FINANCIAL MARKETS  

Division 7.2A.1 - Enforceable undertakings  

REGULATION 7.2A.01   ENFORCEABLE UNDERTAKINGS  

7.2A.01(1)   [Undertaking as alternative to civil proceedings]  

For paragraph 798K(1)(d) of the Act, ASIC may accept a written undertaking, entered into by a person who is alleged to have contravened subsection 798H(1) of the Act, as an alternative to civil proceedings.

7.2A.01(2)   [Undertakings ASIC may accept]  

Without limiting subregulation (1), ASIC may accept an undertaking that includes any of the following:

(a) an undertaking to take specified action within a specified period;

(b) an undertaking to refrain from taking specified action;

(c) an undertaking to pay a specified amount within a specified period to the Commonwealth or to some other specified person.

Note: An undertaking may relate to an infringement notice given under Division 7.2A.2 in relation to the alleged contravention. For example, an infringement notice may require a person to enter into an undertaking; a person may enter into an undertaking to comply with an infringement notice; a person may enter into an undertaking if the person does not comply with an infringement notice or the infringement notice is withdrawn.

7.2A.01(3)   [Withdrawal or variation of undertaking]  

If ASIC agrees, in writing, to the withdrawal or variation of the undertaking, the person who entered into the undertaking may withdraw or vary the undertaking.

7.2A.01(4)   [Application to Court on breach of undertaking]  

If ASIC is satisfied that the person who entered into the undertaking has breached a term of the undertaking, ASIC may apply to a Court for an order under subregulation (5).

7.2A.01(5)   [Court orders on breach of undertaking]  

If the Court is satisfied that the person has breached a term of the undertaking, the Court may make one or more of the following orders:

(a) an order directing the person to comply with the term of the undertaking;

(b) an order directing the person to pay to the Commonwealth an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c) an order directing the person to compensate another person who has suffered loss or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

7.2A.01(6)   [No affect on liability if undertaking not accepted]  

This regulation does not affect the liability of a person to civil proceedings if ASIC does not accept an undertaking in relation to the alleged contravention of subsection 798H(1) of the Act.

Division 7.2A.2 - Infringement notices  

REGULATION 7.2A.02   PURPOSE OF DIVISION  

7.2A.02(1)   [Scheme to provide alternatives to civil proceedings]  

For subsection 798K(1) of the Act, the purpose of this Division is to set out a scheme under which a person who is alleged to have contravened subsection 798H(1) of the Act may do one or more of the following as an alternative to civil proceedings:

(a) pay a penalty to the Commonwealth;

(b) undertake or institute remedial measures (including education programs);

(c) accept sanctions other than the payment of a penalty to the Commonwealth (including public censure, suspension for no more than six months from performing certain financial services in relation to a licensed market, or disgorgement of profits);

(d) enter into an undertaking under regulation 7.2A.01, including an undertaking to do an action mentioned in paragraph (a), (b) or (c).

7.2A.02(2)   [No requirement to give infringement notice]  

This Division does not require ASIC to give an infringement notice to a person in relation to the alleged contravention of subsection 798H(1) of the Act.

7.2A.02(3)   [No affect on liability if no infringement notice]  

This Division does not affect the liability of a person to civil proceedings if ASIC does not give an infringement notice to the person in relation to the alleged contravention of subsection 798H(1) of the Act.

7.2A.02(4)   [When no affect on liability if infringement notice]  

This Division does not affect the liability of a person to civil proceedings if:

(a) ASIC gives an infringement notice to the person in relation to the alleged contravention of subsection 798H(1) of the Act; and

(b) either:

(i) the notice is withdrawn; or

(ii) the person does not comply with the notice in accordance with regulation 7.2A.08.

7.2A.02(5)   [No limitation on penalties Court could impose]  

This Division does not limit or otherwise affect the penalty that a Court could impose on the person for a contravention of subsection 798H(1) of the Act.

REGULATION 7.2A.03  

7.2A.03   DEFINITIONS FOR DIVISION 7.2A.2  

In this Division:

compliance period
has the meaning given by subregulation 7.2A.08(2).

infringement notice
means an infringement notice given under regulation 7.2A.04.

recipient,
in relation to an infringement notice, means the person to whom ASIC gives the infringement notice or intends to give the infringement notice under regulation 7.2A.04.

REGULATION 7.2A.04   WHEN INFRINGEMENT NOTICE CAN BE GIVEN  

7.2A.04(1)    
If ASIC has reasonable grounds to believe that a person has contravened subsection 798H(1) of the Act, ASIC may give to the person an infringement notice in relation to the alleged contravention.

7.2A.04(2)    
ASIC may give a person an infringement notice that is in relation to more than one alleged contravention of subsection 798H(1) of the Act.

7.2A.04(3)    
If ASIC withdraws an infringement notice given to a person in relation to the alleged contravention of subsection 798H(1) of the Act, ASIC may give the person a new infringement notice in relation to the alleged contravention.

Example for subregulation (3)

An infringement notice given to a person in relation to an alleged contravention of subsection 798H(1) of the Act may be withdrawn, and a new infringement notice given to the person in relation to that alleged contravention, if the original infringement notice contained an error.

REGULATION 7.2A.05   STATEMENT OF REASONS MUST BE GIVEN  

7.2A.05(1)    
Before giving a recipient an infringement notice, ASIC must:

(a) give the recipient a written statement that sets out ASIC's reasons for believing that the recipient has contravened subsection 798H(1) of the Act; and

(b) give the recipient, or a representative of the recipient, an opportunity to:

(i) appear at a private hearing before ASIC; and

(ii) give evidence to ASIC; and

(iii) make submissions to ASIC;

in relation to the alleged contravention of subsection 798H(1) of the Act.

7.2A.05(2)    
If a recipient, or a representative of a recipient, gives ASIC evidence or information under paragraph (1)(b) in relation to the alleged contravention of subsection 798H(1) of the Act, the evidence or information is not admissible in evidence in any proceedings against the recipient, other than proceedings relating to the evidence or information being false or misleading.

REGULATION 7.2A.06  

7.2A.06   CONTENTS OF INFRINGEMENT NOTICE  

An infringement notice:

(a) must state the date on which it is given; and

(b) must be identified by a unique code; and

(c) must state the name and address of the recipient; and

(d) must state that it is being given by ASIC under regulation 7.2A.04; and

(e) must specify details of each alleged contravention of subsection 798H(1) of the Act to which the infringement notice relates, including:

(i) the conduct that made up each alleged contravention (including, to the extent known, the date on which it occurred and the place at which it occurred); and

(ii) each market integrity rule that ASIC alleges the recipient has contravened; and

(f) must, in relation to each market integrity rule that ASIC alleges the recipient has contravened, state the maximum pecuniary penalty that a Court could order the recipient to pay for contravening the market integrity rule; and

(g) must, in relation to each alleged contravention of subsection 798H(1) of the Act to which the infringement notice relates:

(i) specify the penalty (if any) payable for each alleged contravention of subsection 798H(1) of the Act; and

(ii) if subparagraph (i) applies:

(A) specify the total penalty that the recipient must pay to the Commonwealth; and

(B) state that the penalty is payable to ASIC on behalf of the Commonwealth; and

(C) explain how payment of the penalty can be made; and

(iii) specify the remedial measures (if any) that the recipient must undertake or institute; and

(iv) specify the sanctions (if any) that the recipient must accept; and

(v) specify the terms of an undertaking (if any) that the recipient must enter into under regulation 7.2A.01; and

(h) must state that the recipient may choose not to comply with the infringement notice, but that if the recipient does not comply, civil proceedings may be brought against the recipient in relation to the alleged contravention; and

(i) must explain what the recipient must do to comply with the infringement notice and the effect of compliance with the infringement notice; and

(j) must state that the recipient may apply to ASIC:

(i) for withdrawal of the notice under regulation 7.2A.11; and

(ii) for an extension of time under regulation 7.2A.09; and

(k) must state that ASIC may publish details of the infringement notice under regulation 7.2A.15; and

(l) may include any other information that ASIC considers necessary.

Note: For sub-subparagraph (g)(ii)(A), the total penalty is the sum of the penalties payable under subparagraph (g)(i).

REGULATION 7.2A.07   AMOUNT OF PENALTY PAYABLE TO THE COMMONWEALTH  

7.2A.07(1)    
The penalty payable (if any) for an alleged contravention of subsection 798H(1) of the Act is the amount determined by ASIC.

Note: See subsection 798K(2) of the Act for the maximum penalty payable.

7.2A.07(2)    
If an infringement notice is in relation to more than one alleged contravention of subsection 798H(1) of the Act, the total penalty payable under the infringement notice is the sum of the penalties payable (if any) for the alleged contraventions.

REGULATION 7.2A.08   COMPLIANCE WITH INFRINGEMENT NOTICE  

7.2A.08(1)    
A recipient complies with an infringement notice if, during the compliance period, the recipient does all of the following:

(a) pays the penalty specified in the infringement notice under sub-subparagraph 7.2A.06(g)(ii)(A) (if any);

(b) undertakes or institutes the remedial measures specified in the infringement notice under subparagraph 7.2A.06(g)(iii) (if any);

(c) accepts the sanctions specified in the infringement notice under subparagraph 7.2A.06(g)(iv) (if any);

(d) enters into an undertaking (including an undertaking to comply with the infringement notice) with the terms specified in the infringement notice under subparagraph 7.2A.06(g)(v) (if any).

7.2A.08(2)    
The compliance period for an infringement notice:

(a) starts on the day on which the infringement notice is given to the recipient; and

(b) ends:

(i) 27 days after the day on which the infringement notice is given to the recipient; or

(ii) on another day permitted by this regulation.

7.2A.08(3)    
If the recipient applies for a further period of time in which to comply with the infringement notice, and the application is granted, the compliance period ends at the end of the further period allowed.

7.2A.08(4)    
If the recipient applies for a further period of time in which to comply with the infringement notice, and the application is refused, the compliance period ends on the later of:

(a) 28 days after the day on which the infringement notice was given to the recipient; and

(b) 7 days after the notice of refusal is given to the recipient.

7.2A.08(5)    
If the recipient applies for the infringement notice to be withdrawn, and the application is refused, the compliance period ends 28 days after the notice of refusal is given to the recipient.

REGULATION 7.2A.09   EXTENSION OF COMPLIANCE PERIOD  

7.2A.09(1)   [Application during compliance period]  

During the compliance period, a recipient may apply, in writing, to ASIC for a further period of no more than 28 days in which to comply with the infringement notice.

7.2A.09(2)   [Requirements for application]  

The application must:

(a) specify the infringement notice's unique identification code; and

(b) set out the reasons for the application.

7.2A.09(3)   [Requirements for ASIC's decision]  

Within 14 days after receiving the application, ASIC must:

(a) grant or refuse a further period no longer than the period sought (and no more than 28 days); and

(b) notify the recipient in writing of the decision and, if the decision is a refusal, the reasons for the decision.

7.2A.09(4)   [No further applications]  

If ASIC refuses a further period under paragraph (3)(a), the recipient may not make a further application under subregulation (1) in relation to that infringement notice.

7.2A.09(5)   [Deemed refusal to extend]  

If ASIC has not granted or refused a further period under paragraph (3)(a) within 14 days after receiving the application, ASIC is taken to have refused a further period.

REGULATION 7.2A.10   EFFECT OF COMPLIANCE WITH INFRINGEMENT NOTICE  

7.2A.10(1)   [When effects apply]  

Subject to subregulation (3), if:

(a) an infringement notice is given to a recipient in relation to an alleged contravention of subsection 798H(1) of the Act; and

(b) the infringement notice is not withdrawn; and

(c) the recipient complies with the infringement notice;

the effects in subregulation (2) apply.

7.2A.10(2)   [Effects]  

The effects are:

(a) any liability of the recipient to the Commonwealth for the alleged contravention of subsection 798H(1) of the Act is discharged; and

(b) no civil or criminal proceedings may be brought or continued by the Commonwealth against the recipient for the conduct specified in the infringement notice as being the conduct that made up the alleged contravention of subsection 798H(1) of the Act; and

(c) no administrative action may be taken by ASIC under section 914A, 915B, 915C or 920A of the Act against the recipient for the conduct specified in the infringement notice as being the conduct that made up the alleged contravention of subsection 798H(1) of the Act; and

(d) the recipient is not taken to have admitted guilt or liability in relation to the alleged contravention; and

(e) the recipient is not taken to have contravened subsection 798H(1) of the Act.

Note: Third parties are not prevented from commencing civil proceedings against the recipient, including under sections 793C and 1101B of the Act, and under section 1317J of the Act in relation to sections 1317G and 1317HB of the Act. ASIC is not prevented from applying for an order on behalf of a plaintiff in accordance with the Act.

7.2A.10(3)   [When effects do not apply]  

Subregulation (2) does not apply if the recipient has knowingly:

(a) provided false or misleading information to ASIC; or

(b) withheld evidence or information from ASIC;

in relation to the alleged contravention of subsection 798H(1) of the Act.

REGULATION 7.2A.11   APPLICATION TO WITHDRAW INFRINGEMENT NOTICE  

7.2A.11(1)   [Application during compliance period]  

During the compliance period, a recipient of an infringement notice may apply, in writing, to ASIC for the infringement notice to be withdrawn.

7.2A.11(2)   [Requirements for application]  

The application must:

(a) specify the infringement notice's unique identification code; and

(b) set out the reasons for the application.

7.2A.11(3)   [Requirements for ASIC's decision]  

Within 14 days after receiving the application, ASIC must:

(a) withdraw or refuse to withdraw the infringement notice; and

(b) notify the recipient in writing of the decision and, if the decision is a refusal, the reasons for the decision.

7.2A.11(4)   [Matters taken into account]  

Without limiting subregulation (3), ASIC may withdraw the infringement notice after taking into account the following matters:

(a) whether the recipient has previously been found to have contravened subsection 798H(1) of the Act;

(b) the circumstances in which the contravention set out in the infringement notice is alleged to have occurred;

(c) whether an infringement notice has previously been given to the recipient in relation to an alleged contravention of subsection 798H(1) of the Act, and whether the recipient complied with the infringement notice;

(d) any other relevant matter.

7.2A.11(5)   [No further applications]  

If, under paragraph (3)(a), ASIC refuses to withdraw the infringement notice, the recipient may not make a further application under subregulation (1) in relation to that infringement notice.

7.2A.11(6)   [Deemed refusal to withdraw]  

If ASIC has not withdrawn, or refused to withdraw, the infringement notice within 14 days after receiving the application, ASIC is taken to have refused to withdraw the infringement notice.

REGULATION 7.2A.12   WITHDRAWAL OF INFRINGEMENT NOTICE BY ASIC  

7.2A.12(1)   [ASIC may withdraw]  

ASIC may withdraw an infringement notice given by ASIC without an application under regulation 7.2A.11 having been made.

7.2A.12(2)   [Matters taken into account]  

Without limiting subregulation (1), ASIC may withdraw the infringement notice after taking into account a matter mentioned in paragraph 7.2A.11(4)(a), (b), (c) or (d).

REGULATION 7.2A.13   NOTICE OF WITHDRAWAL OF INFRINGEMENT NOTICE  

7.2A.13(1)   [Requirements for notice of withdrawal]  

A notice withdrawing an infringement notice must include the following information:

(a) the name and address of the recipient;

(b) the date the infringement notice was given;

(c) the infringement notice's unique identification code.

7.2A.13(2)   [Must state infringement notice withdrawn]  

The notice must also state that the infringement notice is withdrawn.

REGULATION 7.2A.14   WITHDRAWAL OF NOTICE AFTER COMPLIANCE  

7.2A.14(1)   [With agreement of recipient]  

ASIC may withdraw an infringement notice after the recipient has complied with the infringement notice only if the recipient agrees, in writing, to the withdrawal.

7.2A.14(2)   [Refund of penalty]  

If an infringement notice is withdrawn after the penalty specified in it (if any) has been paid, the Commonwealth must refund the amount of the penalty to the person who paid it.

7.2A.14(3)   [Requirements in notice no longer enforceable]  

If an infringement notice is withdrawn after the recipient has complied with a requirement specified in the infringement notice:

(a) to undertake or institute remedial measures; or

(b) to accept sanctions other than a payment of a penalty to the Commonwealth; or

(c) to enter into an undertaking;

the remedial measures, sanctions or undertaking are taken to no longer be enforceable by ASIC.

REGULATION 7.2A.15   PUBLICATION OF DETAILS OF INFRINGEMENT NOTICE  

7.2A.15(1)   [Publication at end of compliance period]  

If ASIC gives an infringement notice to a recipient, ASIC may, at the end of the compliance period, publish details of the infringement notice.

7.2A.15(2)   [Requirements for publication]  

If ASIC decides to publish details of the infringement notice, ASIC must publish the details in accordance with either or both of subregulations (3) and (4).

7.2A.15(3)   [Publication in Gazette]  

ASIC may publish details of an infringement notice by publishing in the Gazette:

(a) a copy of the infringement notice; and

(b) the following statements:

(i) a statement as to whether the recipient has complied with the infringement notice;

(ii) if the recipient has complied with the infringement notice, a statement that:

(A) compliance is not an admission of guilt or liability; and

(B) the recipient is not taken to have contravened subsection 798H(1) of the Act;

(iii) if the recipient has not complied with the infringement notice, a statement that:

(A) the giving of an infringement notice to a recipient is only an allegation that the recipient has contravened subsection 798H(1) of the Act; and

(B) the recipient is not taken to have contravened subsection 798H(1) of the Act.

7.2A.15(4)   [Publication by issue of statement]  

ASIC may publish details of an infringement notice by issuing a written or oral statement that:

(a) includes an accurate summary of the details of the infringement notice, including:

(i) the name of the recipient; and

(ii) the amount of the penalty specified in the infringement notice (if any); and

(iii) the remedial measures specified in the infringement notice (if any); and

(iv) the sanctions specified in the infringement notice (if any); and

(v) the terms of an undertaking specified in the infringement notice (if any); and

(vi) the conduct specified in the infringement notice as being the conduct that made up the alleged contravention of subsection 798H(1) of the Act; and

(b) includes the following statements:

(i) a statement as to whether the recipient has complied with the infringement notice;

(ii) if the recipient has complied with the infringement notice, a statement that:

(A) compliance is not an admission of guilt or liability; and

(B) the recipient is not taken to have contravened subsection 798H(1) of the Act;

(iii) if the recipient has not complied with the infringement notice, a statement that:

(A) the giving of an infringement notice to a recipient is only an allegation that the recipient has contravened subsection 798H(1) of the Act; and

(B) the recipient is not taken to have contravened subsection 798H(1) of the Act.

PART 7.3 - LICENSING OF CLEARING AND SETTLEMENT FACILITIES  

Division 1 - Regulation of CS facility licensees: licensees' obligations  

REGULATION 7.3.01   OBLIGATION TO INFORM ASIC OF CERTAIN MATTERS: BECOMING DIRECTOR, SECRETARY OR EXECUTIVE OFFICER OF CS FACILITY LICENSEE  

7.3.01(1)   [Application]  

This regulation applies if a person becomes a director, secretary or executive officer of a market licensee or of a holding company of a CS facility licensee (including when the person changes from one of those positions to another).

7.3.01(2)   [Information to be given to ASIC]  

For subsection 821B(4) of the Act, the information to be given to ASIC by the CS facility licensee is:

(a) the person's name and contact details; and

(b) the date of appointment to the position; and

(c) the person's educational qualifications and financial market experience; and

(d) if the CS facility licensee is aware of any details of a conviction of the kind mentioned in subsection 206B(1) of the Act - the details; and

(e) whether the CS facility licensee knows whether the person:

(i) is an undischarged bankrupt; or

(ii) has entered into a deed of arrangement or composition of a kind mentioned in subsections 206B(3) and (4) of the Act;

and, if the CS facility licensee knows the information, details of what the CS facility licensee knows.

REGULATION 7.3.02   OBLIGATION TO INFORM ASIC OF CERTAIN MATTERS: CEASING TO BE DIRECTOR, SECRETARY OR EXECUTIVE OFFICER OF CS FACILITY LICENSEE  

7.3.02(1)   [Application]  

This regulation applies if a person ceases to be a director, secretary or executive officer of a CS facility licensee or of a holding company of a CS facility licensee (including when the person changes from one of those positions to another).

7.3.02(2)   [Information to be given to ASIC]  

For subsection 821B(4) of the Act, the information to be given to ASIC by the CS facility licensee is:

(a) the name and contact details of the person; and

(b) the position that the person held; and

(c) the date on which the person ceased to hold the position; and

(d) if the person ceases to be a director, secretary or executive officer because the person is changing from the position to another in the company, the new position; and

(e) if the reason for ceasing to hold the position is:

(i) because of a contravention of the Corporations Act or another law of a State or Territory; or

(ii) because the person has become an undischarged bankrupt;

details of the reason.

REGULATION 7.3.03   OBLIGATION TO INFORM ASIC OF CERTAIN MATTERS: VOTING POWER IN CS FACILITY LICENSEE  

7.3.03(1)   [Application]  

This regulation applies if a CS facility licensee becomes aware that a person has come to have, or has ceased to have, more than 15% of the voting power in the CS facility licensee or in a holding company of the CS facility licensee.

7.3.03(2)   [Information to be given to ASIC]  

For subsection 821B(4) of the Act, the information to be given to ASIC by the CS facility licensee is:

(a) the person's name and contact details; and

(b) if known by the CS facility licensee, the date on which the person came to have, or ceased to have, more than 15% of the voting power; and

(c) if the CS facility licensee knows the voting power that the person had immediately before the person came to have, or ceased to have, more than 15% of the voting power, that voting power; and

(d) whether the CS facility licensee knows the manner in which the person came to have, or ceased to have, more than 15% of the voting power, and, if the CS facility licensee knows the manner, details of what the CS facility licensee knows.

REGULATION 7.3.04  

7.3.04   ANNUAL REPORT OF CS FACILITY LICENSEE  
For subsection 821E(2) of the Act, if an annual report by a CS facility licensee does not contain any of the following information, the information must accompany the annual report:

(a) a description of the activities the CS facility licensee has undertaken in the financial year;

(b) the resources (including financial, technological and human resources) that the CS facility licensee had available, and used, in order to ensure that it has complied with its obligations in Chapter 7 of the Act, and, in particular, the obligation contained in subparagraph 821A(1)(c)(i) of the Act;

(c) an analysis of the extent to which the CS facility licensee considers that the activities undertaken, and resources used, have resulted in full compliance with all its obligations under Chapter 7 of the Act.

Division 2 - Regulation of CS facility licensees: the facility's operating rules and procedures  

REGULATION 7.3.05  

7.3.05   CONTENT OF LICENSED CS FACILITY'S OPERATING RULES  
For subsection 822A(1) of the Act, the following matters are matters with which the operating rules of a licensed CS facility must deal:

(a) the regulated services provided by the licensed CS facility, including the means by which obligations of parties to transactions relating to financial products will be met through the licensed CS facility;

(b) matters relating to risk in the licensed CS facility;

(c) access to the licensed CS facility, including the criteria for determining persons who are eligible to be participants and the ongoing requirements for participants;

(d) suspension and expulsion of participants from the licensed CS facility;

(e) disciplinary action against participants;

(f) procedures, to be followed by participants, to address risks that are relevant to the licensed CS facility;

(g) requirements to facilitate the monitoring of compliance by participants with the operating rules of the licensed CS facility;

(h) the handling of defaults;

(i) any obligations on participants and issuers that are necessary to ensure that the CS facility licensee is able to comply with subparagraph 821A(1)(c)(i) of the Act;

(j) if the licensed CS facility is a prescribed CS facility - arrangements for the transfer of financial products that are likely to be transferred using the licensed CS facility.

REGULATION 7.3.06  

7.3.06   CONTENT OF LICENSED CS FACILITY'S WRITTEN PROCEDURES  
For subsection 822A(2) of the Act, the following matters are matters in respect of which a licensed CS facility must have written procedures:

(a) arrangements to ensure the integrity and security of systems (including computer systems);

(b) identifying and monitoring risks that are relevant to the licensed CS facility;

(c) the development of rules and procedures to address those risks;

(d) exchange of appropriate information with:

(i) other clearing and settlement facilities; and

(ii) financial markets; and

(iii) ASIC and the Reserve Bank of Australia;

relating to participants and their activities that are relevant to the licensed CS facility;

(e) the provision of information about the procedures of the licensed CS facility, including rights, obligations and risks relating to the facility;

(f) arrangements for supervising the licensed CS facility, including the monitoring of compliance by participants and issuers with the operating rules of the licensed CS facility.

Division 3 - Regulation of CS facility licensees: powers of the Minister and ASIC  

REGULATION 7.3.07  

7.3.07   AGENCIES FOR COMPLIANCE ASSESSMENT  
For paragraph 823C(5)(d) of the Act, the following agencies are prescribed:

(a) the Clean Energy Regulator;

(aa) the Australian Competition and Consumer Commission;

(b) the Australian Prudential Regulation Authority;

(c) the Australian Taxation Office;

(d) the Australian Transaction Reports and Analysis Centre;

(e) an authority of a State or Territory having functions and powers similar to those of the Director of Public Prosecutions;

(f) the police force or service of each State and the Northern Territory;

(g) the Department of Consumer and Employment Protection of Western Australia;

(ga) the Commissioner of State Revenue of Western Australia;

(h) the Department of Fair Trading of New South Wales;

(i) the Office of Fair Trading and Business Affairs of Victoria;

(ia) the State Revenue Office of Victoria;

(j) the Office of Consumer Affairs of Queensland;

(ja) the Office of State Revenue of Queensland;

(k) the Office of Consumer and Business Affairs of South Australia;

(l) the Office of Consumer Affairs and Fair Trading of Tasmania;

(la) the Department of Treasury and Finance of Tasmania;

(m) the Consumer Affairs Bureau of the Australian Capital Territory;

(n) the Fair Trading Group of the Northern Territory.

REGULATION 7.3.08  

7.3.08   AGENCIES FOR COMPLIANCE ASSESSMENT  
For paragraph 823CA(4)(d) ofthe Act, the following agencies are prescribed:

(a) the Clean Energy Regulator;

(aa) the Australian Competition and Consumer Commission;

(b) the Australian Prudential Regulation Authority;

(c) the Australian Taxation Office;

(d) the Australian Transaction Reports and Analysis Centre;

(e) an authority of a State or Territory having functions and powers similar to those of the Director of Public Prosecutions;

(f) the police force or service of each State and the Northern Territory;

(g) the Department of Consumer and Employment Protection of Western Australia;

(ga) the Commissioner of State Revenue of Western Australia;

(h) the Department of Fair Trading of New South Wales;

(i) the Office of Fair Trading and Business Affairs of Victoria;

(ia) the State Revenue Office of Victoria;

(j) the Office of Consumer Affairs of Queensland;

(ja) the Office of State Revenue of Queensland;

(k) the Office of Consumer and Business Affairs of South Australia;

(l) the Office of Consumer Affairs and Fair Trading of Tasmania;

(la) the Department of Treasury and Finance of Tasmania;

(m) the Consumer Affairs Bureau of the Australian Capital Territory;

(n) the Fair Trading Group of the Northern Territory.

Division 4 - The Australian CS facility licence: applications (general)  

REGULATION 7.3.09  

7.3.09   APPLICATION OF DIVISION 4  
This Division applies in relation to a body corporate that applies for an Australian CS facility licence that may be granted under subsection 824B(1) of the Act.

REGULATION 7.3.10  

7.3.10   INFORMATION  
For paragraph 824A(1)(a) of the Act, the following information is required as part of an application by the body corporate for an Australian CS facility licence:

(a)    the body corporate's name, address and contact details;

(b)    the name, address and contact details of any person who will act on behalf of the body corporate in relation to the application;

(c)    details of the body corporate's major shareholders and organisation, including:

(i) the name, address and contact details of each director; and

(ii) the name, address and contact details of each secretary; and

(iii) the name, address and contact details of each executive officer of the body corporate; and

(iv) whether any director, secretary or executive officer is, or has been, disqualified from managing a corporation under a law of this jurisdiction or another jurisdiction;

(d)    a description of the body corporate's business or functions, other than the operation of the clearing and settlement facility;

(e)    the services in respect of which the Australian CS facility licence is sought, including details of:

(i) the financial products for which clearing and settlement facilities are to be provided; and

(ii) the nature of each interest in a financial product that is to be transferred using the clearing and settlement facility; and

(iii) the mechanisms to be used by the body corporate to operate the clearing and settlement facility, including (if applicable) arrangements to limit the risk of default by a party to a transaction;

(f)    

whether the body corporate has applied, or intends to apply, to become a prescribed CS facility;

(g)    details of the technological resources that will be used in the operation of the clearing and settlement facility, including details of:

(i) the purpose of the resources; and

(ii) how the resources are to be supplied, managed, maintained and upgraded; and

(iii) how the security of information technology systems is to be protected;

(h)    details of the arrangements for dealing with conflicts between the body corporate's commercial interests and its obligations to supervise and monitor the clearing and settlement facility;

(i)    details of the arrangements for the supervision of employees of the body corporate who have duties and responsibilities of a kind that supervision of the employees is necessary to protect the integrity of the operation of the clearing and settlement facility;

(j)    details of the arrangements for managing counterparty risk, including the risks arising from a counterparty being unable to meet its obligations arising out of clearing, settlement or clearing and settlement transactions using the facility;

(k)    if the ACCC has made a decision in relation to the clearing and settlement facility that the body corporate will operate - details of the decision.

Example of interests in a financial product

Legal title or an equitable interest.

Example of mechanisms to operate the clearing and settlement facility

1. The way in which transfers are to be effected.

2. The way in which payment obligations are to be settled.

REGULATION 7.3.11  

7.3.11   DOCUMENTS  
For paragraph 824A(1)(b) of the Act, the following documents are required as part of an application by the body corporate for an Australian CS facility licence:

(a) the body corporate's current or proposed operating rules and written procedures;

(b) if applicable - the body corporate's constitution;

(c) a copy of any agreement material to:

(i) the way in which the clearing and settlement facility is to be operated; and

(ii) the way in which the financing of the clearing and settlement facility, and the other resources used to operate it, will be organised; and

(iii) the body corporate's constitution or governance; and

(iv) the appointment or employment of directors, secretaries and executive officers of the body corporate;

(d) a copy of any agreement, or proposed agreement, between the body corporate and a market licensee relating to services to be offered to the market licensee;

(e) a copy of any agreement, or proposed agreement, relating to the outsourcing or delegation of a function, facility or service in relation to the facility by the body corporate to another person;

(f) if the body corporate:

(i) uses, or is likely to use, a counterparty; or

(ii) will be operating as a central counterparty;

an assessment by an independent auditor of the adequacy of the body corporate's arrangements for managing counterparty risk;

(g) if the body corporate is a disclosing entity - a copy of each half-year financial report of the body corporate for:

(i) the period of 3 years immediately before the application was made; or

(ii) the shorter period in which the body corporate has carried on a business;

(h) if the body corporate is not a disclosing entity - a copy of each annual financial report of the body corporate for:

(i) the period of 3 years immediately before the application was made; or

(ii) the shorter period in which the body corporate has carried on a business;

(i) if the body corporate is a related body corporate - a copy of the relevant consolidated annual and half-year financial reports for:

(i) the period of 3 years immediately before the application was made; or

(ii) the shorter period in which the body corporate has carried on a business;

(j) a report, by a qualified person who is independent of the body corporate, about the anticipated financial resource requirements of the clearing and settlement facility, including details of:

(i) the total anticipated fixed expenditure and variable expenditure for the first 12 months of operation of the clearing and settlement facility; and

(ii) the total anticipated revenue for the first 12 months of operation of the clearing and settlement facility and other sources of financial resources; and

(iii) the body corporate's contingency arrangements in the event of circumstances occurring that affect the body corporate's ability to operate the clearing and settlement facility;

(k) details of the body corporate's business plan, or other strategic planning, for the first 12 months of operation of the clearing and settlement facility, that are not included in the other documents mentioned in this regulation.

Division 5 - The Australian CS facility licence: applications (overseas clearing and settlement facility)  

REGULATION 7.3.12  

7.3.12   APPLICATION OF DIVISION 5  
This Division applies in relation to a body corporate that applies for an Australian CS facility licence that may be granted under subsection 824B(2) of the Act.

REGULATION 7.3.13  

7.3.13   INFORMATION  
For paragraph 824A(1)(a) of the Act, the following information is required as part of an application by the body corporate for an Australian CS facility licence:

(a) the body corporate's name, address and contact details in this jurisdiction;

(b) the address and contact details of the body corporate's principal place of business in the foreign country in which its clearing and settlement facility is located;

(c) whether the body corporate is registered under Division 2 of Part 5B.2 of the Act;

(d) the services in respect of which the Australian CS facility licence is sought, including details of the financial products for which clearing and settlement facilities are to be provided;

(e) details of the body corporate's major shareholders and organisation, including any details that have not already been given to ASIC in accordance with Division 2 of Part 5B.2 of the Act of:

(i) each person whose duties are comparable to those of a director; and

(ii) each person whose duties are comparable to those of a secretary; and

(iii) each person whose duties are comparable to those of an executive officer of the body corporate.

REGULATION 7.3.14  

7.3.14   DOCUMENTS  
For paragraph 824A(1)(b) of the Act, the documents required as part of an application by the body corporate for an Australian CS facility licence are:

(a) the body corporate's authorisation to operate the clearing and settlement facility in the foreign country in which its clearing and settlement facility is located (the home country ), including any conditions imposed on the body corporate's operation of its clearing and settlement facility in the home country; and

(b) a copy of any agreement, or draft agreement, between the body corporate and a market licensee relating to the clearing and settlement facility services to be provided; and

(c) sufficient documentation to allow the Minister to be satisfied that the regulation of the clearing and settlement facility in its home country is equivalent to regulation under the Act.

Example for paragraph (c)

Copies of the relevant legislation, rules and procedures in the home country.

PART 7.4 - LIMITS ON INVOLVEMENT WITH LICENSEES  

REGULATION 7.4.01  

7.4.01   MEANING OF WIDELY HELD MARKET BODY-PRESCRIBED BODIES CORPORATE  

For the purposes of paragraph 850A(b) of the Act, the following bodies corporate are prescribed:

(a)    Australian Stock Exchange Limited (in its capacity as a body corporate that has an Australian market licence or an Australian CS facility licence);

(b)    ASX Settlement and Transfer Corporation Pty Limited (also known as 'ASTC') (in its capacity as a body corporate that has an Australian CS facility licence);

(c)    

SFE Corporation Limited, in its capacity as the holding company of the following bodies corporate that have an Australian market licence or an Australian CS facility licence:

(i) Austraclear Limited;

(ii) SFE Clearing Corporation Pty Limited;

(iii) Sydney Futures Exchange Limited;

(d)    

SFE Clearing Corporation Pty Limited (in its capacity as a body corporate that has an Australian CS facility licence);

(e)    

Sydney Futures Exchange Limited (in its capacity as a body corporate that has an Australian market licence);

(f)    

ACH (in its capacity as a body corporate that has an Australian CS facility licence);

(g)    

Austraclear Limited (in its capacity as a body corporate that has an Australian CS facility licence).

REGULATION 7.4.02   RECORD-KEEPING: MARKET LICENSEE  

7.4.02(1)   [Obligation to keep records]  

For paragraph 854A(1)(b) of the Act, a market licensee must keep the following records:

(a) a list of names and contact details of the directors, secretaries and executive officers of the market licensee;

(b) a list of names and contact details of individuals who hold more than 15% of the voting power in the market licensee, prepared in accordance with the information given under regulation 7.4.04.

7.4.02(2)   [Retention for at least five years]  

The market licensee must keep the records for at least 5 years.

REGULATION 7.4.03   RECORD-KEEPING: CS FACILITY LICENSEE  

7.4.03(1)   [Obligation to keep records]  

For paragraph 854A(1)(b) of the Act, a CS facility licensee must keep the following records:

(a) a list of names and contact details of the directors, secretaries and executive officers of the CS facility licensee;

(b) a list of names and contact details of individuals who hold more than 15% of the voting power in the CS facility licensee, prepared in accordance with the information given under regulation 7.4.04.

7.4.03(2)   [Retention for at least five years]  

The CS facility licensee must keep the records for at least 5 years.

REGULATION 7.4.04   INFORMATION FOR WIDELY HELD MARKET BODY  

7.4.04(1)   [Application]  

This regulation applies to a person who has:

(a) a substantial holding in a widely held market body; and

(b) voting power in the widely held market body.

7.4.04(2)   [Obligation to give information]  

For paragraph 854A(1)(d) of the Act, the person must give that information to the widely held market body.

7.4.04(3)   [Information already given in accordance with Ch 6C]  

However, subregulation (2) does not require the person to give information that the person has already given to the widely held market body in accordance with Chapter 6C of the Act.

7.4.04(4)   [Time limit]  

The person must give the information by the time described in subsection 671B(6) of the Act.

PART 7.5 - COMPENSATION REGIMES FOR FINANCIAL MARKETS  

Division 1 - Preliminary  

REGULATION 7.5.01  

7.5.01   DEFINITIONS FOR PART 7.5  

In this Part:

becoming insolvent
has the meaning given by regulation 7.5.02.

borrower
(Omitted by SLI 2005 No 38, Sch 1[3].)

claim
means a claim against the SEGC.

claimable obligation
(Omitted by SLI 2005 No 38, Sch 1[3] (effective 31 March 2005).)

clearing nominee
(Omitted by SR 2002 No 282, Sch 1[3].)

completion period
(Omitted by SLI 2005 No 38, Sch 1[3].)

compliance period
(Omitted by SLI 2005 No 38, Sch 1[3].)

dealer
has the meaning given by regulation 7.5.03.

discharge
, in relation to an obligation, means:

(a) in the case of a purchase obligation - discharge the whole of the obligation; or

(b) in any other case - discharge the whole or a part of the obligation.

excluded amount
(Omitted by SLI 2005 No 38, Sch 1[3].)

excluded person
has the meaning given by regulation 7.5.04.

guaranteed securities loan
(Omitted by SLI 2005 No 38, Sch 1[3] (effective 31 March 2005).)

lender
(Omitted by SLI 2005 No 38, Sch 1[3].)

obligations :

(a) in relation to a participant of a participating market licensee, in relation to a person, includes obligations arising under:

(i) a law; or

(ii) the participating market licensee's operating rules; or

(iii) (Omitted)

(iv) an agreement between:

(A) in any case - the participant and the person; or

(B) if the participant is a partner in a participant of the participating market licensee - the last-mentioned participant and the person; and

(b) in relation to a participant of the licensed CS facility operated by ACH, in relation to a person, includes obligations arising under:

(i) a law; or

(ii) the operating rules of ACH; or

(iii) (Omitted)

(iv) an agreement between:

(A) in any case - the participant and the person; or

(B) if the participant is a partner in a participant of the licensed CS facility operated by ACH - the last-mentioned participant and the person; and

(c) in relation to a participant of the licensed CS facility operated by ASTC, in relation to a person, includes obligations arising under:

(i) a law; or

(ii) the ASTC operating rules; or

(iii) an agreement between:

(A) in any case - the participant and the person; or

(B) if the participant is a partner in a participant of the licensed CS facility operated by ASTC - the last-mentioned participant and the person.

orderly market
means an orderly market on a financial market of:

(a) a participating market licensee; or

(b) an Exchange body.

participating market licensee
means a market licensee that is a member of the SEGC.

prescribed period
, in relation to a sale or purchase of securities by a dealer, means:

(a) if the operating rules of ACH or a participating market licensee, in which the dealer is a participant, being those operating rules as in force when the agreement for the sale or purchase is made, prescribe a period, for this paragraph, in relation to a class of sales or purchases that includes the sale or purchase - that period; or

(b) in any other case - a period that is reasonable, having regard to all the circumstances relating to the sale or purchase.

property
includes money, securities and scrip.

purchase obligation
means an obligation to transfer securities under an agreement for the purchase of securities, if the purchase is, for Subdivision 4.3, a reportable transaction.

purchase price
, in relation to a purchase of securities by a dealer on behalf of a person, means the total of:

(a) the amount of the consideration for the purchase; and

(b) any brokerage fees and other charges, and any stamp duty and other duties and taxes, payable by the person to the dealer in connection with the purchase.

relative
, in relation to a person, means a parent or remoter lineal ancestor, son, daughter or remoter issue, or brother or sister, of the person.

replacement agreement
(Omitted by SLI 2005 No 38, Sch 1[5].)

reportable transaction
means a transaction that is entered into before or after the commencement of this Part in relation to securities, and:

(a) is or has at any time been a sale or purchase, by a participant (the first dealer ) of a participating market licensee, of securities, if the securities are quoted on a financial market of a participating market licensee when the agreement for the sale or purchase is made, and:

(i) in any case - the participating market licensee's operating rules, as in force when the agreement for the sale or purchase is made, require or permit the first dealer to report the sale or purchase to the participating market licensee; or

(ii) if the sale or purchase is to or from, as the case may be, a participant (the second dealer ) of a participating market licensee - the last-mentioned participating market licensee's operating rules, as in force when the agreement for the sale or purchase is made, require or permit the second dealer to report to the last-mentioned participating market licensee the purchase or sale of the securities by the second dealer from or to, as the case may be, the first dealer; or

(b) is an agreement to buy or sell securities, because of the exercise of an option contract over securities, if:

(i) the option contract was entered into on the financial market of a participating market licensee; and

(ii) the agreement is required or permitted, by the operating rules of ACH or the participating market licensee, to be reported to the participating market licensee.

sale and purchase of securities
has the meaning given by regulation 7.5.06.

securities business
has the meaning given by regulations 7.5.07 and 7.5.08.

security
has the meaning given by regulation 7.5.09.

security benefit
(Omitted by SLI 2005 No 38, Sch 1[6].)

transfer of securities
has the meaning given by regulation 7.5.10.

transferor
has the meaning given by paragraph 7.5.53(4)(b).

transferred securities
has the meaning given by paragraph 7.5.53(4)(c).

unauthorised execution
has the meaning given by paragraph 7.5.53(4)(a).

REGULATION 7.5.01A  

7.5.01A   MODIFICATION OF ACT: COMPENSATION REGIMES  

For subsection 893A(1) of the Act, Part 7.5 of the Act is modified in relation to a licensed market as set out in Schedule 8C.

REGULATION 7.5.02   MEANING OF BECOMING INSOLVENT  

7.5.02(1)   [Body corporate]  

A body corporate becomes insolvent at a particular time if, and only if, at that time:

(a) an administrator of the body corporate is appointed under section 436A, 436B or 436C; or

(b) the body corporate commences to be wound up or ceases to carry on business; or

(c) a receiver, or a receiver and manager, of property of the body corporate is appointed, whether by a court or otherwise; or

(d) the body corporate enters into a compromise or arrangement with its creditors or a class of them.

7.5.02(2)   [Natural person]  

A natural person becomes insolvent at a particular time if, and only if, at that time:

(a)a creditor's petition or a debtor's petition is presented under Division 2 or 3 of Part IV of the Bankruptcy Act 1966 against:

(i) the person; or

(ii) a partnership in which the person is a partner; or

(iii) 2 or more joint debtors who include the person; or

(b) the person's property becomes subject to control under Division 2 of Part X of the Bankruptcy Act 1966; or

(c) the person executes a deed of assignment or deed of arrangement under Part X of the Bankruptcy Act 1966; or

(d) the person's creditors accept a composition under Part X of the Bankruptcy Act 1966.

7.5.02(3)   [References to Bankruptcy Act 1966]  

A reference in subregulation (2) to a Division or Part of the Bankruptcy Act 1966 includes a reference to provisions of a law of an external Territory, or a country other than Australia or an external Territory, that correspond to that Division or Part.

REGULATION 7.5.03   MEANING OF DEALER  

7.5.03(1)   [This Part (other than Subdiv 4.7, 4.9 and 4.10)]  

For this Part (other than Subdivisions 4.7, 4.9 and 4.10), a person is a dealer if the person is, or has been at any time, a participant of a participating market licensee.

7.5.03(2)    
(Omitted by SLI 2005 No 38, Sch 1[8] (effective 31 March 2005).)

7.5.03(3)   [Subdiv 4.7, 4.9 and 4.10]  

For Subdivisions 4.7, 4.9 and 4.10, a person is a dealer if the person is:

(a) a participant of a participating market licensee; or

(b) a participant of the licensed CS facility operated by ACH.

REGULATION 7.5.04   MEANING OF EXCLUDED PERSON  

7.5.04(1)   [This Part (other than Subdiv 4.9)]  

For this Part, an excluded person , in relation to a participant of a participating market licensee, or a participant of the licensed CS facility operated by ACH, means:

(a) in any case - the participant; or

(b) if the participant is not a body corporate:

(i) a person who is the spouse, or who is a relative, of the participant; or

(ii) a trustee of a trust in relation to which the participant or a person of a kind mentioned in subparagraph (i) is capable of benefiting; or

(iii) a body corporate of which the participant is an officer; or

(iv) a body corporate in which the participant or a person of a kind mentioned in subparagraph (i) has a controlling interest; or

(v) a body corporate in which the participant, and a person of a kind mentioned in subparagraph (i) have a controlling interest; or

(vi) a body corporate in which the participant and 2 or more persons of a kind mentioned in subparagraph (i) have a controlling interest; or

(vii) a body corporate in which 2 or more persons of a kind mentioned in subparagraph (i) together have a controlling interest; or

(c) if the participant is:

(i) a person who is an officer of the body corporate; or

(ii) a body corporate that is related to the first-mentioned body corporate; or

(iii) a person who is the spouse, or who is a relative, of a person of a kind mentioned in subparagraph (i); or

(iv) a trustee of a trust in relation to which a person of a kind mentioned in subparagraph (i) or (iii) is capable of benefiting; or

(v) a body corporate in which a person of a kind mentioned in subparagraph (i) or (iii) has, or 2 or more such persons together have, a controlling interest; or

(d) if the participant is a partner in a participant of the participating market licensee or licensed CS facility and is not a body corporate:

(i) a person who is a partner in the participant; or

(ii) a person who is the spouse, or who is a relative, of a partner (not being a body corporate) in the participant; or

(iii) a trustee of a trust in relation to which a person of a kind mentioned in subparagraph (i) or (ii) is capable of benefiting; or

(iv) a person who is an officer of a body corporate that is a partner in the participant; or

(v) a body corporate of which a person of a kind mentioned in subparagraph (i), (ii) or (iii) is an officer, or in which such a person has, or 2 or more such persons together have, a controlling interest; or

(vi) a person who is a participant of the licensed CS facility operated by ACH; or

(e) if the participant is a partner in a participant of the participating market licensee or licensed CS facility and is a body corporate:

(i) a person who is an officer of a body corporate that is a partner in the participant; or

(ii) a body corporate that is related to the first-mentioned body corporate; or

(iii) a person who is a partner in the participant; or

(iv) a person who is the spouse, or who is a relative, of a person (other than a body corporate) of a kind mentioned in subparagraph (i) or (iii); or

(v) a trustee of a trust in relation to which a person of a kind mentioned in subparagraph (i), (iii) or (iv) is capable of benefiting; or

(vi) a body corporate in which a person of a kind mentioned in subparagraph (i), (iii) or (iv) has, or 2 or more such persons together have, a controlling interest; or

(vii) a person who is a participant of the licensed CS facility operated by ACH.