Corporations Act 2001

CHAPTER 6C - INFORMATION ABOUT OWNERSHIP OF LISTED COMPANIES, LISTED REGISTERED SCHEMES AND LISTED NOTIFIED FOREIGN PASSPORT FUNDS  

SECTION 671A  

671A   CHAPTER EXTENDS TO SOME LISTED BODIES THAT ARE NOT COMPANIES  
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.3 - ASIC POWERS  

SECTION 673   ASIC ' S POWER TO EXEMPT AND MODIFY  

673(1)    
ASIC may:

(a)    exempt a person from a provision of this Chapter; or

(b)    declare that this Chapter applies to a person as if specified provisions were omitted, modified or varied as specified in the declaration.

673(2)    
In deciding whether to give the exemption or declaration, ASIC must consider the purposes of Chapter 6 set out in section 602 .

673(3)    
The exemption or declaration may:

(a)    apply to all or specified provisions of this Chapter; and

(b)    apply to all persons, specified persons, or a specified class of persons; and

(c)    relate to all securities, specified securities or a specified class of securities; and

(d)    relate to any other matter generally or as specified.

673(4)    
An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.

673(5)    
The exemption or declaration must be in writing and ASIC must publish notice of it in the Gazette .

673(6)    
For the purposes of this section, the provisions of this Chapter include:

(a)    regulations made for the purposes of this Chapter; and

(b)    definitions in this Act or the regulations as they apply to references in:

(i) this Chapter; or

(ii) regulations made for the purposes of this Chapter; and

(c)    the old Division 12 of Part 11.2 transitionals.

CHAPTER 6CA - CONTINUOUS DISCLOSURE  

SECTION 674   CONTINUOUS DISCLOSURE - LISTED DISCLOSING ENTITY BOUND BY A DISCLOSURE REQUIREMENT IN MARKET LISTING RULES - REASONABLE PERSON ' S EXPECTATIONS  

Obligation to disclose in accordance with listing rules

674(1)    
Subsection (2) applies to a listed disclosing entity if provisions of the listing rules of a listing market in relation to that entity require the entity to notify the market operator of information about specified events or matters as they arise for the purpose of the operator making that information available to participants in the market.

674(2)    
If:

(a)    this subsection applies to a listed disclosing entity; and

(b)    the entity has information that those provisions require the entity to notify to the market operator; and

(c)    

the information is not generally available; and

(d)    

a reasonable person would expect the information, if it were generally available, to have a material effect on the price or value of ED securities of the entity;

the entity must notify the market operator of that information in accordance with those provisions.

Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

Note 2: (Repealed)

Note 3: An infringement notice may be issued for an alleged contravention of this subsection, see section 1317DAC .

674(2A)    
(Repealed by No 82 of 2021, s 3, Sch 2[5] (effective 14 August 2021).)

674(2B)    
(Repealed by No 82 of 2021, s 3, Sch 2[5] (effective 14 August 2021).)

674(3)    
For the purposes of the application of subsection (2) to a listed disclosing entity that is an undertaking to which interests in a registered scheme relate, the obligation of the entity to notify the market operator of information is an obligation of the responsible entity.

674(3A)    
For the purposes of the application of subsection (2) to a listed disclosing entity that is an undertaking to which interests in a notified foreign passport fund relate, the obligation of the entity to notify the market operator of information is an obligation of the operator of the fund.

674(4)    
Nothing in subsection (2) is intended to affect or limit the situations in which action can be taken (otherwise than by way of a prosecution for an offence based on subsection (2) ) in respect of a failure to comply with provisions referred to in subsection (1) .

Obligation to make provisions of listing rules available

674(5)    
If the listing rules of a listing market in relation to a listed disclosing entity contain provisions of a kind referred to in subsection (1) , the market operator must ensure that those provisions are available, on reasonable terms, to:

(a) the entity; or

(b) if the entity is an undertaking to which interests in a registered scheme relate - the undertaking's responsible entity; or

(c) if the entity is an undertaking to which interests in a notified foreign passport fund relate - the operator of the fund.

Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

Note 2: This subsection is not a civil penalty provision, as it is not listed in the table in subsection 1317E(3) .

SECTION 674A   CONTINUOUS DISCLOSURE - LISTED DISCLOSING ENTITY BOUND BY A DISCLOSURE REQUIREMENT IN MARKET LISTING RULES - KNOWLEDGE, RECKLESSNESS OR NEGLIGENCE  

674A(1)    
Subsection (2) applies to a listed disclosing entity if provisions of the listing rules of a listing market in relation to that entity require the entity to notify the market operator of information about specified events or matters as they arise for the purpose of the operator making that information available to participants in the market.

674A(2)    
If:

(a)    this subsection applies to a listed disclosing entity; and

(b)    the entity has information that those provisions require the entity to notify to the market operator; and

(c)    the information is not generally available; and

(d)    the entity knows, or is reckless or negligent with respect to whether, the information would, if it were generally available, have a material effect on the price or value of ED securities of the entity;

the entity must notify the market operator of that information in accordance with those provisions.

Note 1: Except for paragraph (d) , this subsection is identical to subsection 674(2) .

Note 2: This subsection is a financial services civil penalty provision (see section 1317E ). As a result, compensation orders are available for contraventions of this subsection (see section 1317HA ). For relief from liability relating to this subsection, see section 1317S .

Note 3: This subsection does not create an offence (see subsection 1311(1A) ).

674A(3)    
A person who is involved in a listed disclosing entity ' s contravention of subsection (2) contravenes this subsection.

Note 1: This subsection is a financial services civil penalty provision (see section 1317E ). As a result, compensation orders are available for contraventions of this subsection (see section 1317HA ). For relief from liability relating to this subsection, see section 1317S .

Note 2: Section 79 defines involved .

674A(4)    
A person does not contravene subsection (3) if the person proves that the person:

(a)    took all steps (if any) that were reasonable in the circumstances to ensure that the listed disclosing entity complied with its obligations under subsection (2) ; and

(b)    after doing so, believed on reasonable grounds that the listed disclosing entity was complying with its obligations under that subsection.

674A(5)    
For the purposes of this section, subsections 674(3) and (3A) apply as if each reference in those subsections to subsection 674(2) were replaced by a reference to subsection (2) of this section.

674A(6)    
Nothing in subsection (2) is intended to affect or limit the situations in which action can be taken in respect of a failure to comply with provisions referred to in subsection (1) .

674A(7)    
Subsection 1317QB(1) (state of mind) does not apply in relation to subsections (2) and (3) of this section.

Note: In relation to subsection (3) of this section, see also subsection 1317QB(2) .

SECTION 675   CONTINUOUS DISCLOSURE - OTHER DISCLOSING ENTITIES - REASONABLE PERSON ' S EXPECTATIONS  

675(1)    
This section applies to:

(a)    a listed disclosing entity if:

(i) there is only one listing market in relation to the entity and the listing rules of that market do not contain provisions of a kind referred to in subsection 674(1) ; or

(ii) there is more than one listing market in relation to the entity and none of those markets have listing rules that contain provisions of a kind referred to in subsection 674(1) ; or

(b)    an unlisted disclosing entity.

675(2)    

If:

(a)    

the disclosing entity becomes aware of information that is not generally available; and

(b)    

a reasonable person would expect the information, if it were generally available, to have a material effect on the price or value of ED securities of the entity; and

(c)    

either:

(i) if those securities are not managed investment products or foreign passport fund products - the information is not required to be included in a supplementary disclosure document or a replacement disclosure document in relation to the entity; or

(ii) if those securities are managed investment products or foreign passport fund products - the information has not been included in a Product Disclosure Statement, a Supplementary Product Disclosure Statement, or a Replacement Product Disclosure Statement, a copy of which has been lodged with ASIC; and

(d)    regulations made for the purposes of this paragraph do not provide that disclosure under this section is not required in the circumstances;

the disclosing entity must, as soon as practicable, lodge a document with ASIC containing the information.

Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

Note 2: (Repealed)

Note 3: An infringement notice may be issued for an alleged contravention of this subsection, see section 1317DAC .

Note 4: Subsection (2) has an extended operation in relation to disclosing entities that have made recognised offers of securities under Chapter 8 (see section 1200K ).

Note 5: Subsection (2) has a modified operation in relation to securities in a CCIV: see section 1240F .

675(2A)    
(Repealed by No 82 of 2021, s 3, Sch 2[12] (effective 14 August 2021).)

675(2B)    
(Repealed by No82 of 2021, s 3, Sch 2[12] (effective 14 August 2021).)

675(3)    
For the purposes of the application of this section to a disclosing entity that is an undertaking to which interests in a registered scheme relate:

(a)    the entity is aware of information if, and only if, the responsible entity is aware of the information; and

(b)    the obligation of the entity to lodge a document under subsection (2) is an obligation of the responsible entity.

675(4)    
For the purposes of the application of this section to a disclosing entity that is an undertaking to which interests in a notified foreign passport fund relate:

(a)    the entity is aware of information if, and only if, the operator of the fund is aware of the information; and

(b)    the obligation of the entity to lodge a document under subsection (2) is an obligation of the operator of the fund.

SECTION 675A   CONTINUOUS DISCLOSURE - OTHER DISCLOSING ENTITIES - KNOWLEDGE, RECKLESSNESS OR NEGLIGENCE  

675A(1)    
This section applies to:

(a)    a listed disclosing entity if:

(i) there is only one listing market in relation to the entity and the listing rules of that market do not contain provisions of a kind referred to in subsection 674A(1) ; or

(ii) there is more than one listing market in relation to the entity and none of those markets have listing rules that contain provisions of a kind referred to in subsection 674A(1) ; or

(b)    an unlisted disclosing entity.

675A(2)    

If:

(a)    the disclosing entity becomes aware of information that is not generally available; and

(b)    the entity knows, or is reckless or negligent with respect to whether, the information would, if it were generally available, have a material effect on the price or value of ED securities of the entity; and

(c)   

either:

(i) if those securities are not managed investment products or foreign passport fund products - the information is not required to be included in a supplementary disclosure document or a replacement disclosure document in relation to the entity; or

(ii) if those securities are managed investment products or foreign passport fund products - the information has not been included in a Product Disclosure Statement, a Supplementary Product Disclosure Statement, or a Replacement Product Disclosure Statement, a copy of which has been lodged with ASIC; and

(d)    regulations made for the purposes of this paragraph do not provide that disclosure under this section is not required in the circumstances;

the disclosing entity must, as soon as practicable, lodge a document with ASIC containing the information.

Note 1: Except for paragraph (b) , this subsection is identical to subsection 675(2) .

Note 2: This subsection is a financial services civil penalty provision (see section 1317E ). As a result, compensation orders are available for contraventions of this subsection (see section 1317HA ). For relief from liability relating to this subsection, see section 1317S .

Note 3: This subsection does not create an offence (see subsection 1311(1A) ).

Note 4: This subsection has an extended operation in relation to disclosing entities that have made recognised offers of securities under Chapter 8 (see section 1200K ).

675A(3)    
A person who is involved in a disclosing entity ' s contravention of subsection (2) contravenes this subsection.

Note 1: This subsection is a financial services civil penalty provision (see section 1317E ). As a result, compensation orders are available for contraventions of this subsection (see section 1317HA ). For relief from liability relating to this subsection, see section 1317S .

Note 2: Section 79 defines involved .

675A(4)    
A person does not contravene subsection (3) if the person proves that the person:

(a)    took all steps (if any) that were reasonable in the circumstances to ensure that the disclosing entity complied with its obligations under subsection (2) ; and

(b)    after doing so, believed on reasonable grounds that the disclosing entity was complying with its obligations under that subsection.

675A(5)    
For the purposes of this section, subsections 675(3) and (4) apply as if each reference in those subsections to subsection 675(2) were replaced by a reference to subsection (2) of this section.

675A(6)    
Subsection 1317QB(1) (state of mind) does not apply in relation to subsections (2) and (3) of this section.

Note: In relation to subsection (3) of this section, see also subsection 1317QB(2) .

SECTION 676   MEANING OF GENERALLY AVAILABLE  

676(1)    

This section has effect for the purposes of sections 674 , 674A , 675 and 675A .

676(2)    

Information is generally available if:

(a)    it consists of readily observable matter; or

(b)    without limiting the generality of paragraph (a) , both of the following subparagraphs apply:

(i) it has been made known in a manner that would, or would be likely to, bring it to the attention of persons who commonly invest in securities of a kind whose price or value might be affected by the information; and

(ii) since it was so made known, a reasonable period for it to be disseminated among such persons has elapsed.

676(3)    

Information is also generally available if it consists of deductions, conclusions or inferences made or drawn from either or both of the following:

(a)    information referred to in paragraph (2)(a) ;

(b)    information made known as mentioned in subparagraph (2)(b)(i) .

SECTION 677   MATERIAL EFFECT ON PRICE OR VALUE  

677(1)    
For the purposes of sections 674 and 675 , a reasonable person would be taken to expect information to have a material effect on the price or value of ED securities of a disclosing entity if the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether to acquire or dispose of the ED securities.

677(2)    

For the purposes of sections 674A and 675A :

(a)    an entity knows information would have a material effect on the price or value of ED securities of the entity if the entity knows the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether to acquire or dispose of the ED securities; and

(b)    an entity is reckless or negligent with respect to whether information would have a material effect on the price or value of ED securities of the entity if the entity is reckless or negligent with respect to whether the information would, or would be likely to, influence persons who commonly invest in securities in deciding whether to acquire or dispose of the ED securities.

SECTION 678  

678   APPLICATION OF CRIMINAL CODE TO OFFENCES BASED ON SUBSECTION 674(2), 674(5) OR 675(2)  

The Criminal Code applies to an offence based on subsection 674(2), 674(5) or 675(2).

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: For the meaning of offence based on a provision, see the definition in section 9.