Corporations Act 2001

CHAPTER 2C - REGISTERS  

PART 2C.1 - REGISTERS GENERALLY  

SECTION 167A   WHO IS COVERED BY THIS CHAPTER  

167A(1)   [ Scope]  

This Chapter covers:

(a) all companies; and

(b) all registered schemes.

167A(2)   [ Registered schemes]  

A registered scheme's responsible entity:

(a) must perform the obligations imposed under this Chapter in respect of the scheme; and

(b) may exercise the powers given by this Chapter in respect of the scheme.

SECTION 168   REGISTERS TO BE MAINTAINED  

168(1)    
A company or registered scheme must set up and maintain:

(a) a register of members (see section 169 ); and

(b) if the company or scheme grants options over unissued shares or interests - a register of option holders and copies of options documents (see section 170 ); and

(c) if the company issues debentures - a register of debenture holders (see section 171 ).

Note 1A: See also section 672DA (register of relevant interests in listed company, listed registered scheme or listed notified foreign passport fund).

Note 2: The registers may be kept on computer (see section 1306 ).

168(1A)    

An offence based on subsection (1) is an offence of strict liability.

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

168(2)    
For the purposes of this Chapter, choses in action (including an undertaking) that fall into one of the exceptions in paragraphs (a), (b), (e) and (f) of the definition of debenture in section 9 must also be entered into the register of debenture holders.

SECTION 169   REGISTER OF MEMBERS  

General requirements.

169(1)    
The register of members must contain the following information about each member:

(a)    the member ' s name and address;

(b)    the date on which the entry of the member ' s name in the register is made.

Index to register.

169(2)    
If the company or scheme has more than 50 members, the company or scheme must include in the register an up-to-date index of members ' names. The index must be convenient to use and allow a member ' s entry in the register to be readily found. A separate index need not be included if the register itself is kept in a form that operates effectively as an index.

Companies with share capital.

169(3)    
If the company has a share capital, the register must also show:

(a)    the date on which every allotment of shares takes place; and

(b)    the number of shares in each allotment; and

(c)    the shares held by each member; and

(d)    the class of shares; and

(e)    the share numbers (if any), or share certificate numbers (if any), of the shares; and

(ea)    

the amount paid on the shares; and

(eb)    

whether or not the shares are fully paid; and

(f)    the amount unpaid on the shares (if any).

Note 1: Transfers of shares are entered in the register under section 1071D . Section 1072E deals with the registration of trustees etc. on the death, incapacity or bankruptcy of the shareholder.

Note 2: For the treatment of joint holders see subsection (8) .

Note 3: A CCIV ' s register must also show the sub-funds relevant to each share: see subsection 1222ZB(1) .

169(4)    
The register does not have to show the amount unpaid on the shares (see paragraph (1)(f) ) if:

(a)    all of the company ' s shares were issued before 1 July 1998; and

(b)    the register continues to show the par values of the shares as they were immediately before 1 July 1998.

169(5)    
The register does not have to show the amount unpaid on the shares (see paragraph (1)(f) ) if:

(a)    all of the company ' s shares were issued before 1 July 1998; and

(b)    the company is not a listed company.

Non-beneficial ownership - companies other than listed companies.

169(5A)    
The register of a company that:

(a)    has a share capital; and

(b)    is neither a listed company (within the meaning of section 603 ) nor a company covered by an order under section 707 ;

must indicate any shares that a member does not hold beneficially.

Note: See also section 1072H (in particular, subsection 1072H(8) which contains relevant presumptions about beneficial ownership).

169(6)    

In deciding for the purposes of subsection (5A) whether a member holds shares beneficially or non-beneficially, the company is to have regard only to information in notices given to the company under section 1072H , 672B or 672C .

Proprietary companies that have made CSF offers.

169(6AA)    

The register of a proprietary company that has made one or more CSF offers must also show:

(a)    the date on which every issue of shares in the company pursuant to each CSF offer takes place; and

(b)    the number of shares issued pursuant to each CSF offer; and

(c)    the shares issued to each member pursuant to each CSF offer; and

(d)    the date on which an entity ceases to be a CSF shareholder of the company for a particular share in the company;

during any period in which the company has one or more CSF shareholders.

Registered schemes.

169(6A)    
The register of a registered scheme must also show:

(a)    the date on which every issue of interests takes place; and

(b)    the number of interests in each issue; and

(c)    the interests held by each member; and

(d)    the class of interests; and

(e)    the amount paid, or agreed to be considered as paid, on the interests.

Former members.

169(7)    
A register of members must also show:

(a)    the name and details of each person who stopped being a member of the company or scheme within the last 7 years; and

(b)    the date on which the person stopped being a member.

The company or scheme may keep these entries separately from the rest of the register.

Joint holders.

169(8)    
For the purposes of this section:

(a)    2 or more persons who jointly hold shares in the company or interests in the scheme are taken to be a single member of the company or scheme in relation to those shares or interests; and

(b)    2 or more persons who have given a guarantee jointly are taken to be a single member of the company.

They may also be members of the company or scheme because of shares or interests that they hold, or a guarantee that they have given, in their own right or jointly with others.

SECTION 170   REGISTER OF OPTION HOLDERS AND COPIES OF OPTIONS DOCUMENTS  

170(1)    

The register of option holders must contain the following information about each holder of options over unissued shares in the company or unissued interests in the scheme:

(a)    the option holder ' s name and address;

(b)    the date on which the entry of the option holder ' s name in the register is made;

(c)    the date of grant of the options;

(d)    the number and description of the shares or interests over which the options were granted;

(e)    either:

(i) the period during which the options may be exercised; or

(ii) the time at which the options may be exercised;

(f)    any event that must happen before the options can be exercised;

(g)    any consideration for the grant of the options;

(h)    any consideration for the exercise of the options or the method by which that consideration is to be determined.

Because it is a register of the holders of options that are still exercisable, the register must be updated whenever options are exercised or expire.

Note: A CCIV ' s register must also show the sub-funds relevant to each share or option: see subsection 1222ZB(2) .

170(2)    
Information about the grant of an option must be entered in the register within 14 days after the grant of the option.

Copies of options documents

170(3)    

The company or scheme must keep with the register a copy of every document that grants an option over unissued shares or interests.

170(3A)    

An offence based on subsection (3) is an offence of strict liability.

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

170(3B)    

Subsection (3) does not apply if the option is listed for quotation on a declared financial market.

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

170(4)    
The company or scheme must change the register to reflect the transfer of an option only if the person transferring the option gives the company or scheme written notice of the transfer.

170(5)    
A failure to comply with this section in relation to an option does not affect the option itself.

SECTION 171   REGISTER OF DEBENTURE HOLDERS  

171(1)    

The register of debenture holders must contain the following information about each holder of a debenture:

(a)    the debenture holder ' s name and address;

(b)    the amount of the debentures held.

Note 1: See subsection 168(2) for the coverage of debenture .

Note 2: A CCIV ' s register must also show the sub-funds relevant to each debenture: see subsection 1222ZB(3) .

171(2)    
A company ' s failure to comply with this section in relation to a debenture does not affect the debenture itself.

SECTION 172   LOCATION OF REGISTERS  

172(1)    

A register kept under this Chapter that relates to a company must be kept at:

(a)    the company ' s registered office; or

(b)    the company ' s principal place of business in this jurisdiction; or

(c)    a place in this jurisdiction (whether of the company or of someone else) where the work involved in maintaining the register is done; or

(d)    another place in this jurisdiction approved by ASIC.

172(1A)    
A register kept under this Chapter that relates to a registered scheme must be kept at:

(a)    the responsible entity ' s registered office; or

(b)    an office at the responsible entity ' s principal place of business in this jurisdiction; or

(c)    an office in this jurisdiction (whether of the responsible entity or of someone else) where the work involved in maintaining the register is done; or

(d)    another office in this jurisdiction approved by ASIC.

Notice to ASIC

172(2)    

The company or scheme must lodge with ASIC a notice of the address at which the register is kept within 7 days after the register is:

(a)    established at an office that:

(i) is not the registered office of the company or responsible entity; and

(ii) is not at the principal place of business of the company or responsible entity in this jurisdiction; or

(b)    moved from one place to another.

Notice is not required for moving the register between the registered office and the principal place of business in this jurisdiction.

172(3)    

An offence based on subsection (1) , (1A) or (2) is an offence of strict liability.

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

SECTION 173   RIGHT TO INSPECT AND GET COPIES  

173(1)   Right to inspect.  

A company or registered scheme must allow anyone to inspect a register kept under this Chapter. If the register is not kept on a computer, the person inspects the register itself. If the register is kept on a computer, the person inspects the register by computer.

Note: Other provisions that are relevant to the inspection of registers are:

• section 1300 (place and times for inspection)

• section 1301 (the location of documents that are kept on computers)

• section 1306 (form and evidentiary value).

173(1A)    
(Repealed by No 131 of 2010, Sch 1[5] (effective 13 December 2010).)

173(2)   Inspection fees.  

A member of a company or a registered scheme, a registered option holder or a registered debenture holder may inspect a register kept under this Chapter without charge. Other people may inspect the register only on payment of any fee (up to the prescribed amount) required by the company or scheme.

173(3)   Right to get copies.  

The company or scheme must give a person a copy of the register (or a part of the register) within 7 days if the person:

(a) makes an application to the company or registered scheme in accordance with subsection (3A); and

(b) pays any fee (up to the prescribed amount) required by the company or scheme.

ASIC may allow a longer period to comply with the request. If the register is kept on a computer, the company or registered scheme must give the copy to the person in the prescribed form.

173(3A)   [ Application]  

An application is in accordance with this subsection if:

(a) the application states each purpose for which the person is accessing the copy; and

(b) none of those purposes is a prescribed purpose; and

(c) the application is in the prescribed form.

Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

173(4)   [ Inspection of options documents]  

A person has the same rights to inspect, and obtain copies of, the documents kept under subsection 170(3) as the person has in respect of the register of option holders itself.

173(5)   [ Share certificate numbers]  

The company is not required under subsection (1) or (3) to allow a person to see, or to give a person a copy that contains, share certificate numbers.

173(6)   ASIC power in relation to register of debenture holders.  

ASIC may exempt a company from complying with subsections (1) and (3) in relation to information in a register of debenture holders about debentures that are not convertible into shares or options over unissued shares.

173(7)   [ Form of exemption]  

The exemption:

(a) must be in writing; and

(b) may be general or limited; and

(c) may be subject to conditions specified in the exemption.

173(8)   [ Publication in the Gazette ]  

ASIC must publish a copy of the exemption in the Gazette .

173(9)   [ Contravention of condition]  

A person must not contravene a condition of the exemption.

173(9A)   [ Strict liability offence]  

An offence based on subsection (1), (3) or (9) is an offence of strict liability.

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

173(10)   [ Court may order compliance with condition]  

On application by ASIC, the Court may order a person who contravenes a condition of the exemption to comply with the condition.

SECTION 174   AGENT'S OBLIGATIONS  

174(1)   [ Inspection, copies]  

A person who agrees to maintain a register on behalf of a company or registered scheme for the purposes of this Chapter must:

(a) make the register available for inspection under this Chapter; and

(b) provide the copies required by this Chapter.

174(2)   [ Strict liability offence]  

An offence based on subsection (1) is an offence of strict liability.

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

SECTION 175   CORRECTION OF REGISTERS  

175(1)    
A company or registered scheme or a person aggrieved may apply to the Court to have a register kept by the company or scheme under this Part corrected.

175(2)    
If the Court orders the company or scheme to correct the register, it may also order the company or scheme to compensate a party to the application for loss or damage suffered.

175(3)    
If:

(a)    the Court orders a company or scheme to correct its register of members; and

(b)    the company or scheme has lodged a list of its members with ASIC;

the company or scheme must lodge notice of the correction with ASIC.

Note: A proprietary company may also have to notify certain particulars under Part 2C.2 of this Chapter.

SECTION 176  

176   EVIDENTIARY VALUE OF REGISTERS  
In the absence of evidence to the contrary, a register kept under this Chapter is proof of the matters shown in the register under this Chapter.

SECTION 177   USE OF INFORMATION ON REGISTERS  

177(1)    

A person must not:

(a) use information about a person obtained from a register kept under this Chapter to contact or send material to the person; or

(b) disclose information of that kind knowing that the information is likely to be used to contact or send material to the person.

Note: An example of using information to send material to a person is putting a person's name and address on a mailing list for advertising material.

177(1AA)    

A person must not:

(a) use information obtained from a register kept under this Chapter for any purpose prescribed by regulations made for the purposes of paragraph 173(3A)(b); or

(b) disclose information of that kind knowing that the information is likely to be used for any such purpose.

177(1A)    

Subsection (1) does not apply if the use or disclosure of the information is:

(a) relevant to the holding of the interests recorded in the register or the exercise of the rights attaching to them; or

(b) approved by the company or scheme.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A), see subsection 13.3(3) of the Criminal Code .

177(1B)    

An offence based on subsection (1) or (1AA) is an offence of strict liability.

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

177(2)    

A person who contravenes subsection (1) or (1AA) is liable to compensate anyone else who suffers loss or damage because of the contravention.

177(3)    

A person who makes a profit from a contravention of subsection (1) or (1AA) owes a debt to the company or the scheme. The amount of the debt is the amount of the profit.

177(4)    
If a person owes a debt under subsection (3) to the scheme:

(a) the debt may be recovered by the responsible entity as a debt due to it; and

(b) any amount paid or recovered in respect of the debt forms part of the scheme property.

SECTION 178   OVERSEAS BRANCH REGISTERS - COMPANIES  

178(1)    
A company may keep a branch register of members of the company at a place outside Australia.

178(2)    
If a company keeps an overseas branch register under subsection (1):

(a) the company must keep the branch register in the same manner as this Act requires the company to keep the register kept under section 169 (the principal register ); and

(b) the company must enter in the principal register the details contained in the branch register; and

(c) the company must distinguish shares that are registered in the branch register from the shares registered in the principal register.

SECTION 178AA   OVERSEAS BRANCH REGISTERS - AUSTRALIAN PASSPORT FUNDS  

178AA(1)    
An Australian passport fund may keep a branch register of members of the fund outside Australia.

178AA(2)    
If an Australian passport fund keeps an overseas branch register under subsection (1):

(a) the fund must keep the branch register in the same manner as this Act requires the fund to keep the register kept under section 169 (the principal register ); and

(b) the fund must enter in the principal register the details contained in the branch register; and

(c) the fund must distinguish interests that are registered in the branch register from the interests registered in the principal register.