Corporations Act 2001

CHAPTER 1 - INTRODUCTORY  

PART 1.2A - DISCLOSING ENTITIES  

Division 1 - Object of Part  

SECTION 111AA  

111AA   OBJECT OF PART  
The object of this Part is:

(a) to define disclosing entity and other key terms relevant to disclosing entities (this is done in Division 2); and

(b) to outline the significance for this Act of being a disclosing entity (this is done in Division 3); and

(c) to provide for exemptions from, and modifications of, the special requirements imposed by this Act in relation to disclosing entities (this is done in Division 4).

Division 2 - Meaning of disclosing entity and related terms  

SECTION 111AB  

111AB   TERMS DEFINED IN DIVISION  
(Repealed by No 76 of 2023, s 3, Sch 2[72] (effective 20 October 2023).)

SECTION 111AC   MEANING OF DISCLOSING ENTITY  

111AC(1)    
If any securities of a body (except interests in a managed investment scheme) are ED securities, the body is a disclosing entity for the purposes of this Act.

111AC(2)    
If any interests in a managed investment scheme are ED securities, the undertaking to which the interests relate is a disclosing entity for the purposes of this Act.

SECTION 111AD   MEANING OF ED SECURITIES  

111AD(1)    
Securities of a body are ED securities (short for " enhanced disclosure securities " ) for the purposes of this Act if, and only if:

(a)    

they are ED securities under section 111AE , 111AF , 111AFA , 111AFB , 111AG or 111AI ; and

(b)    they are not declared under section 111AJ not to be ED securities.

111AD(2)    
For the purposes of sections 111AE , 111AF , 111AG and 111AI , a class of shares or debentures is taken to include units of shares or debentures in that class.

SECTION 111AE   SECURITIES OF BODIES OR UNDERTAKINGS INCLUDED IN A LICENSED MARKET ' S OFFICIAL LIST  

111AE(1)    

If:

(a)    a body corporate (other than a notified foreign passport fund) is, with its agreement, consent or acquiescence, included in the official list of a declared financial market; and

(b)    the market ' s listing rules (according to their terms) apply to the body in relation to a class (which may be some or all) of securities issued by the body;

securities issued by the body in that class are ED securities , and that market is a listing market in relation to that body.

111AE(1A)    

If:

(a)    an undertaking to which interests in a registered scheme relates is, with the agreement, consent or acquiescence of the responsible entity, included in the official list of a declared financial market; and

(b)    the market ' s listing rules (according to their terms) apply to the undertaking in relation to a class (which may be some or all) of managed investment products that relate to the scheme;

managed investment products in that class that relate to the scheme are ED securities , and that market is a listing market in relation to the undertaking.

111AE(1B)    

If:

(a)    an undertaking to which interests in a notified foreign passport fund relate is, with the agreement, consent or acquiescence of the operator of the fund, included in the official list of a declared financial market; and

(b)    the market ' s listing rules (according to their terms) apply to the fund in relation to a class (which may be some or all) of foreign passport fund products that relate to the fund;

foreign passport fund products in that class that relate to the fund are ED securities , and that market is a listing market in relation to the fund.

111AE(1C)    

If:

(a)    subsection (1) does not apply to securities issued by a CCIV; and

(b)    a sub-fund of the CCIV is, with the agreement, consent or acquiescence of the CCIV, included in the official list of a declared financial market; and

(c)    the market ' s listing rules (according to their terms) apply to the sub-fund in relation to a class of securities issued by the CCIV that are referable to the sub-fund;

securities in that class that are referable to the sub-fund are ED securities , and that market is a listing market in relation to the CCIV.

Note: Subsection (1) may apply to a CCIV instead of this subsection if the CCIV, and not a sub-fund, is included in the official list of a declared financial market.

111AE(2)    

Subsections (1) and (1A) do not apply to securities of a body if:

(a)    the body is a public authority of the Commonwealth or an instrumentality or agency of the Crown in right of the Commonwealth; and

(b)    

the only securities issued by the body that would otherwise be ED securities because of subsection (1) or (1A) are debentures; and

(c)    both the repayment of principal, and the payment of interest, in respect of those debentures is guaranteed by the Commonwealth.

111AE(3)    

Subsections (1) and (1A) do not apply to securities of a body that is:

(a)    a public authority of a State or Territory; or

(b)    an instrumentality or agency of the Crown in right of a State or Territory.

SECTION 111AF   SECURITIES (EXCEPT DEBENTURES AND MANAGED INVESTMENT PRODUCTS) HELD BY 100 OR MORE PERSONS  

111AF(1)    
Securities (except debentures or managed investment products) in a class of securities of a body are ED securities if:

(a)    a disclosure document in relation to securities in that class has been lodged with ASIC under Chapter 6D ; and

(b)    securities in that class have been issued pursuant to the disclosure document; and

(c)    after an issue of securities in that class pursuant to the disclosure document, 100 or more persons held securities in that class; and

(d)    securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (c).

111AF(2)    

Securities (except debentures and managed investment products) in a class of securities of a body are ED securities if securities in that class have been issued under a recognised offer and the offeror ' s records indicate that 100 or more people who reside in this jurisdiction have held securities in that class (whether or not as a result of the recognised offer) at all times since the issue.

111AF(3)    

Securities (except debentures) in a class of securities of a CCIV are ED securities if 100 or more people hold securities in that class as a result of offers that gave rise to obligations to give Product Disclosure Statements (whether or not all in the same terms) under Chapter 7 (as that Chapter applies to those securities under Division 4 of Part 8B.7 ).

SECTION 111AFA   MANAGED INVESTMENT PRODUCTS HELD BY 100 OR MORE PERSONS  

111AFA(1)   [ Managed investment products]  

Managed investment products in a class of managed investment products issued by a body are ED securities if 100 or more people hold managed investment products in that class as a result of offers that gave rise to obligations to give Product Disclosure Statements (whether or not all in the same terms) under Chapter 7.

111AFA(2)   [ Holders of interest resident in jurisdiction]  

Interests in a class of interests in a managed investment scheme issued by a body are ED securities if interests in that class have been issued under a recognised offer and the offeror ' s records indicate that 100 or more people who reside in this jurisdiction have held interests in that class (whether or not as a result of the recognised offer) at all times since the issue.

SECTION 111AFB  

111AFB   FOREIGN PASSPORT FUND PRODUCTS HELD BY 100 OR MORE PERSONS  
Foreign passport fund products in a class of foreign passport fund products issued by a body are ED securities if 100 or more people who reside in this jurisdiction hold foreign passport fund products in that class.

SECTION 111AG   SECURITIES ISSUED AS CONSIDERATION FOR AN ACQUISITION UNDER AN OFF-MARKET TAKEOVER BID OR PART 5.1 COMPROMISE OR ARRANGEMENT  

111AG(1)   [ Securities issued for off-market takeover bid]  

Securities (except debentures) in a class of securities of a body are ED securities if:

(a) securities in that class have been issued by the body as consideration for offers under an off-market bid; and

(b) after an issue of securities in that class under the off-market bid, 100 or more persons held securities in that class; and

(c) securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (b).

111AG(2)   [ Securities issued under compromise or arrangement]  

Securities in a class of securities of a body are ED securities if:

(a) securities in that class have been issued as consideration for the acquisition or cancellation of securities of another body pursuant to a compromise or arrangement under Part 5.1; and

(b) securities in that class, or those or any other securities of the other body, were ED securities immediately before securities in that class were first issued pursuant to the compromise or arrangement; and

(c) after an issue of securities in that class pursuant to the compromise or arrangement, 100 or more persons held securities in that class; and

(d) securities in that class have been held by 100 or more persons at all times since the issue of securities referred to in paragraph (c).

SECTION 111AH   WHEN A PERSON HOLDS SECURITIES FOR THE PURPOSES OF SECTIONS 111AF, 111AFA, 111AFB AND 111AG  

111AH(1)    

For the purposes of sections 111AF, 111AFA and 111AG, a person holds securities if, and only if:

(a) the person is registered as the holder of the securities in a register under section 169, 170, 171 or 601CZB; or

(b) the person is entitled to be so registered.

111AH(1A)    
For the purposes of section 111AFB , a person holds securities in a notified foreign passport fund if, and only if:

(a) the person is registered as the holder of securities in the fund on a register maintained by the operator of the fund under the law of the home economy for the fund; or

(b) the person is entitled to be so registered.

111AH(2)    

For the purposes of sections 111AF, 111AFA, 111AFB and 111AG, joint holders of securities count as one person.

SECTION 111AI  

111AI   DEBENTURES  

Debentures of a borrower are ED securities if:

(a) section 283AA requires the borrower to appoint a trustee; or

(b) section 283AA does not apply to the borrower only because the offer of the debentures to which section 283AA would otherwise have applied is a recognised offer.

SECTION 111AJ   REGULATIONS MAY DECLARE SECURITIES NOT TO BE ED SECURITIES  

111AJ(1)   [ Declaration]  

The regulations may declare specified securities of bodies not to be ED securities.

111AJ(2)   [ Effect of regulations]  

Regulations in force for the purposes of subsection (1) have effect accordingly, despite anything else in this Division.

SECTION 111AK  

111AK   ED SECURITIES OF A DISCLOSING ENTITY  
For the purposes of this Act, ED securities because of which (having regard to section 111AC) a disclosing entity is such an entity are ED securities of the entity.

SECTION 111AL  

111AL   MEANING OF LISTED DISCLOSING ENTITY  

A disclosing entity is a listed disclosing entity if all or any ED securities of the entity are quoted ED securities.

SECTION 111AM  

111AM   MEANING OF QUOTED ED SECURITIES  
For the purposes of this Act, ED securities are quoted ED securities if they are ED securities because of section 111AE .

Division 3 - Significance of being a disclosing entity  

SECTION 111AN  

111AN   DIVISION CONTAINS OUTLINE OF SIGNIFICANCE OF BEING A DISCLOSING ENTITY  
This Division outlines the significance for this Act of being a disclosing entity.

SECTION 111ANA  

111ANA   REQUIREMENTS RELATING TO REMUNERATION RECOMMENDATIONS IN RELATION TO KEY MANAGEMENT PERSONNEL  

There are special requirements in Part 2D.8 for remuneration recommendations in relation to key management personnel for disclosing entities that are companies.

SECTION 111AO  

111AO   ACCOUNTING REQUIREMENTS  

A disclosing entity incorporated or formed in Australia has to prepare financial statements and reports for half-years as well as full financial years. These requirements are set out in Chapter 2M .

SECTION 111AP   CONTINUOUS DISCLOSURE REQUIREMENTS  

111AP(1)    

A disclosing entity is subject to the continuous disclosure requirements of sections 674 , 674A , 675 and 675A .

111AP(2)    
(Repealed by No 122 of 2001, s 3, Sch 2 [ 19].)

111AP(3)    
(Repealed by No 122 of 2001, s 3, Sch 2 [ 19].)

SECTION 111AQ  

111AQ   PROSPECTUS RELIEF  
Section 713 applies (subject to certain qualifications) to prospectuses for quoted ED securities of disclosing entities. The section's requirements for the content of prospectuses are less comprehensive than those that apply to other prospectuses under section 710.

SECTION 111AQA  

111AQA   PRODUCT DISCLOSURE STATEMENT RELIEF  

Obligations that apply to disclosing entities can be taken into account in deciding what information should be included in a Product Disclosure Statement - see section 1013FA and paragraph 1013F(2) (d).

Division 4 - Exemptions and modifications  

SECTION 111AR   MEANING OF DISCLOSING ENTITY PROVISIONS  

111AR(1)    

The disclosing entity provisions are the provisions of the following:

(a)    Chapter 2M as it applies to disclosing entities;

(d)    

sections 674 , 674A , 675 and 675A ;

(e)    

Division 4 of Part 8B.4 as it applies to disclosing entities;

(f)    

Division 2 of Part 8B.7 as it applies to disclosing entities.

111AR(2)    
A reference in subsection (1) to a Part, Division or section includes a reference to regulations in force for the purposes of the Part, Division or section.

SECTION 111AS   EXEMPTIONS BY REGULATIONS  

111AS(1)   [ Exemptions]  

The regulations may exempt specified persons from all or specified disclosing entity provisions:

(a) either generally or as otherwise specified; and

(b) either unconditionally or subject to specified conditions.

111AS(2)   [ Specified securities may be exempted]  

Without limiting subsection (1), an exemption may relate to specified securities.

SECTION 111AT   EXEMPTIONS BY ASIC  

111AT(1)   [ Exemptions]  

ASIC may, by writing, exempt specified persons from all or specified disclosing entity provisions:

(a) either generally or as otherwise specified; and

(b) either unconditionally or subject to specified conditions.

111AT(2)   [ Specified securities may be exempted]  

Without limiting subsection (1), an exemption may relate to specified securities.

111AT(3)   [ Publication in the Gazette ]  

ASIC must cause a copy of an exemption to be published in the Gazette .

SECTION 111AU   ENFORCING CONDITIONS OF EXEMPTIONS  

111AU(1)   [ Intentional or reckless contravention]  

A person must not intentionally or recklessly contravene a condition to which an exemption under section 111AS or 111AT is subject.

111AU(2)   [ Powers of Court]  

If a person contravenes such a condition, the Court may, on the application of ASIC, order the person to comply with the condition.

SECTION 111AV   MODIFICATIONS BY REGULATIONS  

111AV(1)   [ Modifications by regulations]  

The regulations may make modifications of all or specified disclosing entity provisions.

111AV(2)   [ Modification may relate to specified securities]  

Without limiting subsection (1), a modification may relate to specified securities.

SECTION 111AW  

111AW   EXEMPTIONS AND MODIFICATIONS HAVE EFFECT  
Exemptions and modifications under this Division have effect accordingly.

SECTION 111AX  

111AX   EFFECT OF DIVISION  
Nothing in this Division limits, or is limited by, any other exemption or modification power (for example, section 340 , 340A , 341 , 341A or 741 ).