CHAPTER 6C
-
INFORMATION ABOUT OWNERSHIP OF LISTED COMPANIES, LISTED REGISTERED SCHEMES AND LISTED NOTIFIED FOREIGN PASSPORT FUNDS
History
Ch 6C heading substituted by No 61 of 2018, s 3, Sch 2[165] (effective 18 September 2018).
SECTION 671A
671A
CHAPTER EXTENDS TO SOME LISTED BODIES THAT ARE NOT COMPANIES
CCH Note:
Section 671A is modified by the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687.
This Chapter applies to the acquisition of relevant interests in the securities of listed bodies that are not companies but are incorporated or formed in Australia in the same way as it applies to the acquisition of relevant interests in the securities of companies.
Note: Section 9 defines
company
and
listed
.
PART 6C.2
-
TRACING BENEFICIAL OWNERSHIP OF SHARES
SECTION 672A
DISCLOSURE NOTICES
CCH Note:
Section 672A is modified by the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687.
672A(1)
ASIC, a listed company, the responsible entity for a listed registered scheme or the operator of a listed notified foreign passport fund may direct:
(a)
a member of the company, scheme or fund; or
(b)
a person named in a previous disclosure under section
672B
as having a relevant interest in, or having given instructions about, voting shares in the company, interests in the scheme or interests in the fund;
to make the disclosure required by section
672B
.
History
S 672A(1) substituted by No 61 of 2018, s 3, Sch 2[173] (effective 18 September 2018).
672A(2)
ASIC must exercise its powers under this section if requested to do so by a member of the company, scheme or fund unless it considers that it would be unreasonable to do so in all the circumstances.
History
S 672A(2) amended by No 61 of 2018, s 3, Sch 2[174] (effective 18 September 2018).
SECTION 672B
DISCLOSURE BY MEMBER OF RELEVANT INTERESTS AND INSTRUCTIONS
CCH Note:
Section 672B is modified by the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687.
672B(1)
A person given a direction under section
672A
must disclose to the person giving the direction:
(a)
full details of their own relevant interest in the shares, interests in the scheme or interests in the fund and of the circumstances that give rise to that interest; and
(b)
the name and address of each other person who has a relevant interest in any of the shares or interests together with full details of:
(i)
the nature and extent of the interest; and
(ii)
the circumstances that give rise to the other person
'
s interest; and
(c)
the name and address of each person who has given the person instructions about:
(i)
the acquisition or disposal of the shares or interests; or
(ii)
the exercise of any voting or other rights attached to the shares or interests; or
(iii)
any other matter relating to the shares or interests;
together with full details of those instructions (including the date or dates on which they were given).
History
S 672B(1) amended by No 61 of 2018, s 3, Sch 2[175] (effective 18 September 2018).
S 672B(1) amended by No 117 of 2001, s 3, Sch 1
[
247].
672B(1A)
However, a matter referred to in paragraph (1)(b) or (c) need only be disclosed to the extent to which it is known to the person required to make the disclosure.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A), see subsection 13.3(3) of the
Criminal Code
.
History
S 672B(1A) inserted by No 117 of 2001, s 3, Sch 1
[
248].
672B(1B)
An offence based on subsection (1) is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 672B(1B) inserted by No 117 of 2001, s 3, Sch 1
[
248].
672B(2)
The disclosure must be made within 2 business days after:
(a)
the person is given the direction; or
(b)
if the person applies for an exemption under section
673
from the obligation to make the disclosure and ASIC refuses to grant the exemption
-
ASIC notifies the person of its decision on the application; or
(c)
if the direction is given by a listed company, the responsible entity of a listed registered scheme or the operator of a listed notified foreign passport fund
-
the company, responsible entity or operator pays any fee payable under the regulations made for the purposes of section
672D
.
History
S 672B(2) amended by No 61 of 2018, s 3, Sch 2[176] (effective 18 September 2018).
672B(3)
The person does not have to comply with a direction given by the company, responsible entity or operator if the person proves that the giving of the direction is vexatious.
History
S 672B(3) amended by No 61 of 2018, s 3, Sch 2[177] (effective 18 September 2018).
SECTION 672C
672C
ASIC MAY PASS INFORMATION ON TO PERSON WHO MADE REQUEST
CCH Note:
Section 672C is modified by the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687.
If ASIC receives information in response to a direction under section
672A
about shares in a company, interests in a listed registered scheme or interests in a listed notified foreign passport fund, ASIC:
(a)
may pass the information on to the company, the responsible entity for the scheme or the operator of the fund; and
(b)
if ASIC gave the direction in response to a request under subsection
672A(2)
-
must pass the information on to the person who made the request unless ASIC considers it would be unreasonable in all the circumstances to do so.
History
S 672C amended by No 61 of 2018, s 3, Sch 2[178] and
[
179] (effective 18 September 2018).
SECTION 672D
FEE FOR COMPLYING WITH A DIRECTION GIVEN BY A COMPANY, SCHEME OR FUND UNDER THIS PART
CCH Note:
Section 672D is modified by the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687.
672D(1)
The regulations may prescribe fees that listed companies, responsible entities of listed registered schemes and operators of listed notified foreign passport funds are to pay to persons for complying with directions given under this Part.
History
S 672D(1) amended by No 61 of 2018, s 3, Sch 2[181] (effective 18 September 2018).
672D(2)
A person is liable to repay a fee paid to the person for complying with a direction under section
672A
if the person does not comply with the direction on time even if the person does so later. The fee may be recovered as a debt due to the company, responsible entity or operator that paid it to the person.
History
S 672D(2) amended by No 61 of 2018, s 3, Sch 2[182] (effective 18 September 2018).
SECTION 672DA
REGISTER OF INFORMATION ABOUT RELEVANT INTERESTS IN LISTED COMPANY, LISTED REGISTERED SCHEME OR LISTED NOTIFIED FOREIGN PASSPORT FUND
CCH Note:
Section 672DA is modified by the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687.
672DA(1)
A listed company, the responsible entity for a listed registered scheme or the operator of a listed notified foreign passport fund, must keep a register of the following information that it receives under this Part on or after 1 January 2005 (whether the information is received pursuant to a direction the company, the responsible entity or the operator itself gives under section
672A
or is received from ASIC under section
672C
):
(a)
details of the nature and extent of a person
'
s relevant interest in shares in the company, interests in the scheme or interests in the fund;
(b)
details of the circumstances that give rise to a person
'
s relevant interest in shares in the company, interests in the scheme or interests in the fund;
(c)
the name and address of a person who has a relevant interest in shares in the company, interests in the scheme or interests in the fund;
(d)
details of instructions that a person has given about:
(i)
the acquisition or disposal of shares in the company, interests in the scheme or interests in the fund; or
(ii)
the exercise of any voting or other rights attached to shares in the company, interests in the scheme or interests in the fund; or
(iii)
any other matter relating to shares in the company, interests in the scheme or interests in the fund;
(e)
the name and address of a person who has given instructions of the kind referred to in paragraph (d).
The register must be kept in accordance with this section.
History
S 672DA(1) substituted by No 61 of 2018, s 3, Sch 2[184] (effective 18 September 2018).
672DA(2)
A register kept under this section by a listed 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 or not an office of the company) where the work involved in maintaining the register is done; or
(d)
another place in this jurisdiction approved by ASIC.
[
CCH Note:
S 672DA(2) will be amended by No 69 of 2020, s 3, Sch 1[1057], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (d) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
672DA(3)
A register kept under this section by the responsible entity of a listed registered scheme must be kept at:
(a)
the responsible entity
'
s registered office; or
(b)
the responsible entity
'
s principal place of business in this jurisdiction; or
(c)
a place in this jurisdiction (whether or not an office of the responsible entity) where the work involved in maintaining the register is done; or
(d)
another place in this jurisdiction approved by ASIC.
[
CCH Note:
S 672DA(3) will be amended by No 69 of 2020, s 3, Sch 1[1057], by substituting
"
the Registrar
"
for
"
ASIC
"
in para (d) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 672DA(3) amended by No 61 of 2018, s 3, Sch 2[185] (effective 18 September 2018).
672DA(3A)
A register kept under this section by the operator of a listed notified foreign passport fund must be kept at:
(a)
the operator
'
s registered office; or
(b)
the operator
'
s principal place of business in this jurisdiction; or
(c)
a place in this jurisdiction (whether or not an office of the operator) where the work involved in maintaining the register is done; or
(d)
another place in this jurisdiction approved by ASIC.
History
S 672DA(3A) inserted by No 61 of 2018, s 3, Sch 2[186] (effective 18 September 2018).
672DA(4)
The company, responsible entity or operator 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 a place that:
(i)
is not the registered office of the company, responsible entity or operator; and
(ii)
is not at the principal place of business of the company, responsible entity or operator 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.
Note: The obligation to notify ASIC under this subsection is a continuing obligation and the company, responsible entity or operator is guilty of an offence for each day, after the 7 day period, until ASIC is notified (see section
4K
of the
Crimes Act 1914
).
[
CCH Note:
S 672DA(4) will be amended by No 69 of 2020, s 3, Sch 1[1058] and
[
1059], by substituting
"
the Registrar
"
for
"
ASIC
"
and
"
the Registrar
"
for
"
ASIC
"
(wherever occurring) in the note, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 672DA(4) substituted by No 61 of 2018, s 3, Sch 2[187] (effective 18 September 2018).
[
CCH Note:
S 672DA(4A) will be inserted by No 69 of 2020, s 3, Sch 1[1060] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 672DA(4A) will read:
672DA(4A)
The notice must meet any requirements of the data standards.]
672DA(5)
An offence based on subsection
(2)
,
(3)
,
(3A)
or
(4)
is an offence of strict liability.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 672DA(5) amended by No 61 of 2018, s 3, Sch 2[188] (effective 18 September 2018).
672DA(6)
The register must either contain:
(a)
the name of each holder of shares in the company, interests in the scheme or interests in the fund to whom the information relates; and
(b)
against the name of each such holder:
(i)
the name and address of each other person (if any) who, according to information the company responsible entity or operator has received under this Part on or after 1 January 2005, has a relevant interest in any of the shares or interests (together with details of the relevant interest and of the circumstances because of which the other person has the relevant interest); and
(ii)
the name and address of each person who, according to information received by the company responsible entity or operator under this Part on or after 1 January 2005, has given relevant instructions in relation to any of the shares or interests (together with details of those relevant instructions); and
(c)
in relation to each item of information entered in the register, the date on which the item was entered in the register;
or be in such other form as ASIC approves in writing.
History
S 672DA(6) amended by No 61 of 2018, s 3, Sch 2[189] and
[
190] (effective 18 September 2018).
672DA(7)
The register must be open for inspection:
(a)
by any member of the company, scheme or fund
-
without charge; and
(b)
by any other person:
(i)
if the company, responsible entity or operator requires the payment of a fee for the inspection
-
on payment of the fee; or
(ii)
if the company, responsible entity or operator does not require the payment of a fee for the inspection
-
without charge.
The amount of the fee required by the company, responsible entity or operator under subparagraph (b)(i) must not exceed the amount prescribed by the regulations for the purposes of this subsection.
History
S 672DA(7) amended by No 61 of 2018, s 3, Sch 2[191] and
[
192] (effective 18 September 2018).
672DA(8)
A person may request the company, responsible entity or operator to give to the person a copy of the register (or any part of the register) and, if such a request is made, the company, responsible entity or operator must give the person the copy:
(a)
if the company, responsible entity or operator requires payment of a fee for the copy:
(i)
before the end of 21 days after the day on which the payment of the fee is received by the company, responsible entity or operator; or
(ii)
within such longer period as ASIC approves in writing; or
(b)
if the company, responsible entity or operator does not require payment of a fee for the copy:
(i)
before the end of 21 days after the day on which the request is made; or
(ii)
within such longer period as ASIC approves in writing.
The amount of the fee required by the company, responsible entity or operator under paragraph (a) must not exceed the amount prescribed by the regulations for the purposes of this subsection.
Note: The obligation to give the copy under this subsection is a continuing obligation and the company, responsible entity or operator is guilty of an offence for each day, after the period referred to in paragraph (a) or (b), until the copy is given (see section
4K
of the
Crimes Act 1914
).
History
S 672DA(8) substituted by No 61 of 2018, s 3, Sch 2[193] (effective 18 September 2018).
672DA(9)
The information that subsection
(6)
requires to be entered in the register must be entered in the register by the company, responsible entity or operator before the end of 2 business days after the day on which the company, responsible entity or operator receives the information.
Note: The obligation to enter the details in the register under this subsection is a continuing obligation and the company, responsible entity or operator is guilty of an offence for each day, after the 2 business day period, until the details are entered in the register (see section
4K
of the
Crimes Act 1914
).
History
S 672DA(9) amended by No 61 of 2018, s 3, Sch 2[194] and
[
195] (effective 18 September 2018).
History
S 672DA inserted by No 103 of 2004, s 3, Sch 11A
[
2]
SECTION 672E
672E
NO NOTICE OF RIGHTS
CCH Note:
Section 672E is modified by the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687.
A company, responsible entity or operator is not, because of anything done under this Part:
(a)
taken for any purpose to have notice of; or
(b)
put on inquiry as to;
a person
'
s right in relation to a share in the company, an interest in the listed registered scheme or an interest in the listed notified foreign passport fund.
History
S 672E amended by No 61 of 2018, s 3, Sch 2[196] and
[
197] (effective 18 September 2018).
SECTION 672F
CIVIL LIABILITY
CCH Note:
Section 672F is modified by the ASIC Corporations (Warrants: Relevant Interests and Associations) Instrument 2023/687.
672F(1)
A person who contravenes section
672B
is liable to compensate a person for any loss or damage the person suffers because of the contravention.
672F(2)
It is a defence in proceedings brought under this section if the person who contravenes section
672B
proves that they contravened that section:
(a)
because of inadvertence or mistake; or
(b)
because they were not aware of a relevant fact or occurrence.
In determining whether the defence is available, disregard the person
'
s ignorance of, or a mistake on the person
'
s part concerning, a matter of law.
672F(3)
If 2 or more persons each contravene section
672B
because of the same act or omission, their liability under this section for the contravention is joint and individual.