Corporations Act 2001
Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .
View history note
Hide history noteThis Division applies in relation to widely held market bodies.
Meaning of widely held market body
850A(2)
A body corporate is a widely held market body if the body: (a) is:
(i) a market licensee or the holding company of such a licensee; or
(b) is declared under subsection (3) .
(ii) a CS facility licensee or the holding company of such a licensee; and
850A(3)
ASIC may, by legislative instrument, declare a specified body corporate for the purposes of paragraph (2)(b) if, having regard to the matters in subsection (4) , ASIC is satisfied that: (a) if the body is a market licensee or the holding company of such a licensee - the financial market to which the licence relates is of national significance; or (b) if the body is a CS facility licensee or the holding company of such a licensee - the clearing and settlement facility to which the licence relates is of national significance.
850A(4)
The matters are: (a) the significance to the national economy of the operation of the market or the facility; and (b) the size and importance of the market or the facility:
(i) in the context of the Australian financial products and services industry; and
(c) the degree of, or potential for, competition within the market or the facility; and (d) any other matters that ASIC considers relevant.
(ii) relative to other financial markets on which similar financial products are dealt, or other clearing and settlement facilities providing similar services, in Australia; and
850A(5)
ASIC must not make a declaration under subsection (3) unless: (a) the Minister has approved it in writing; and (b) if the proposed declaration relates to a body corporate mentioned in subparagraph (2)(a)(ii) - ASIC has consulted the Reserve Bank about it.
An unacceptable control situation exists in relation to a widely held market body and in relation to a particular person if the person ' s voting power in the body is more than: (a) 20%; or (b) in relation to a body other than the ASX Limited - if an approval of a higher percentage is in force under Subdivision B in relation to the body and in relation to the person, that higher percentage; or (c) in relation to the ASX Limited - if the regulations prescribe a higher percentage in relation to the ASX Limited in relation to the person, that higher percentage.
850B(2)
Regulations made for the purposes of paragraph (1)(c) may not take effect before the first day those regulations are no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act 2003 .
SECTION 850C 850C ACQUISITIONS OF SHARES
If:
(a) a person, or 2 or more persons under an arrangement, acquire shares in a body corporate; and
(b) the acquisition has the result, in relation to a widely held market body, that:
(i) an unacceptable control situation comes into existence in relation to the body and in relation to a person; or
(ii) if an unacceptable control situation already exists in relation to the body and in relation to a person - there is an increase in the voting power of the person in the body;
the person or persons mentioned in paragraph (a) contravene this section.
Note: A contravention of this section is an offence (see subsection 1311(1) ).
If an unacceptable control situation exists in relation to a widely held market body, the Court may make such orders as the Court considers appropriate for the purpose of ensuring that the unacceptable control situation ceases to exist.
850D(2)
However, the Court may only make orders under this section on application by: (a) the Minister; or (b) ASIC; or (c) the body; or (d) a person who has any voting power in the body.
850D(3)
The Court's orders may include: (a) an order directing the disposal of shares; or (b) an order restraining the exercise of any rights attached to shares; or (c) an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person; or (d) an order that any exercise of rights attached to shares be disregarded; or (e) an order directing any person to do or refrain from doing a specified act, for the purpose of securing compliance with any other order made under this section; or (f) an order containing such ancillary or consequential provisions as the Court thinks just.
850D(4)
Subsection (3) does not, by implication, limit subsection (1) .
850D(5)
Before making an order under this section, the Court may direct that notice of the application be given to such persons as the Court thinks fit or be published in such manner as the Court thinks fit, or both.
850D(6)
The Court may, by order: (a) rescind, vary or discharge an order made by the Court under this section; or (b) suspend the operation of such an order.
SECTION 850E INJUNCTIONS 850E(1) [ Person whose interests affected]
If any conduct (including a refusal or failure to act) amounts or would amount to a contravention of this Division in relation to a particular widely held market body, the body is taken, for the purposes of section 1324 , to be a person whose interests are affected by the conduct.
850E(2) [ Limitation]Subsection (1) does not, by implication, limit the class of persons whose interests are affected by the conduct.
850E(3) [ Powers of Minister]The Minister has the same powers as ASIC to apply for an injunction under section 1324 in relation to a contravention of this Division.
850E(4) [ Limitation]The powers in sections 850D and 1324 do not, by implication, limit each other.
A person may apply for approval to have voting power of more than 20% in a particular widely held market body (other than the ASX Limited) by lodging with ASIC an application that: (a) specifies the percentage of voting power (if any) the person currently has in the widely held market body; and (b) specifies the percentage of voting power the person is seeking approval to have in the body; and (c) sets out the person ' s reasons for making the application.
Note: For fees in respect of lodging applications, see Part 9.10 .
851A(2)
ASIC must give the application to the Minister as soon as possible.
If the Minister is satisfied that it is in the national interest to approve the applicant having voting power in the widely held market body of more than 20%, the Minister may grant the application.
851B(2)
If the Minister grants the application, the Minister must: (a) give written notice of the approval to the applicant; and (b) specify the percentage of the voting power the Minister approves the applicant having in the widely held market body (which may or may not be the percentage the applicant applied for); and (c) either:
(i) specify the period during which the approval remains in force; or
(ii) specify that the approval remains in force indefinitely.
851B(3)
If the Minister refuses the application, the Minister must give written notice of the refusal to the applicant.
851B(4)
As soon as practicable, the Minister must arrange for a copy of a notice of approval under this section to be: (a) published in the Gazette ; and (b) given to the body concerned.
An approval under section 851B remains in force:
(a) if the notice of approval specifies a period during which the approval remains in force - until the end of that period, or if the Minister extends that period, until the end of that extended period; or
(b) otherwise - indefinitely. 851C(2) Extension of approval.
A person who holds an approval under section 851B that is in force for a specified period may apply to extend that period by lodging with ASIC an application that sets out the person's reasons for making the application.
Note: For fees in respect of lodging applications, see Part 9.10 .
851C(3) [ Application given to Minister]ASIC must give the application to the Minister as soon as possible.
851C(4) [ Power to grant extension]If the Minister is satisfied that it is in the national interest to grant the extension, the Minister may grant the application.
851C(5) [ Notice and duration of approval]If the Minister grants the application, the Minister must:
(a) give written notice of the extension to the applicant; and
(b) specify the extended period during which the approval remains in force (which may or may not be the period the applicant applied for). 851C(6) [ Notice of refusal]
If the Minister refuses the application, the Minister must give written notice of the refusal to the applicant.
851C(7) [ Publication]As soon as practicable, the Minister must arrange for a copy of a notice of extension under this section to be:
(a) published in the Gazette ; and
(b) given to the widely held market body concerned.
An approval under section 851B is subject to such conditions (if any) as are specified in the notice of approval.
851D(2)
The Minister may, by written notice given to a person who holds an approval under section 851B : (a) impose one or more conditions or further conditions to which the approval is subject; or (b) revoke or vary any condition:
(i) imposed under paragraph (a) ; or
(ii) specified in the notice of approval.
851D(3)
The Minister's power under subsection (2) may be exercised: (a) on the Minister's own initiative; or (b) on application by the person who holds the approval.
851D(4)
An application made by a person under paragraph (3)(b) must be lodged with ASIC in a prescribed form and must set out the person's reasons for making the application.
Note: For fees in respect of lodging applications, see Part 9.10 .
851D(5)
ASIC must give the application to the Minister as soon as possible.
851D(6)
If the Minister refuses an application under paragraph (3)(b) , the Minister must give written notice of the refusal to the applicant.
851D(7)
As soon as practicable, the Minister must arrange for a copy of a notice under subsection (2) to be: (a) published in the Gazette ; and (b) given to the widely held market body concerned.
851D(8)
A person who holds an approval under section 851B must give written notice to ASIC if they become aware that they have breached a condition to which the approval is subject.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
SECTION 851E VARYING PERCENTAGE APPROVED 851E(1) Application by holder of approval.
A person who holds an approval under section 851B may apply to vary the percentage specified in the approval by lodging with ASIC an application that:
(a) specifies the percentage of the voting power the person currently has in the widely held market body concerned; and
(b) specifies the percentage of the voting power the person is seeking approval to have in the body; and
(c) sets out the person's reasons for making the application.
Note: For fees in respect of lodging applications, see Part 9.10 .
851E(2) [ Application given to Minister]ASIC must give the application to the Minister as soon as possible.
851E(3) [ Power to grant variation in percentage]If the Minister is satisfied that it is in the national interest to vary the percentage, the Minister may grant the application.
851E(4) [ Notice and scope of variation]If the Minister grants the application, the Minister must:
(a) give written notice of the variation to the applicant; and
(b) specify the variation granted (which may or may not be the variation the applicant applied for). 851E(5) [ Notice of refusal]
If the Minister refuses an application, the Minister must give written notice of the refusal to the applicant.
851E(6) Minister's own initiative.The Minister may, by written notice given to a person who holds an approval under section 851B , vary the percentage specified in the approval if the Minister is satisfied that it is in the national interest to do so.
851E(7) Percentage varied upwards.If the Minister varies a percentage upwards, the variation takes effect on the day the notice of variation is given.
851E(8) Percentage varied downwards.If the Minister varies a percentage downwards, the variation takes effect on the day specified in the notice of variation. The specified day must be a day at least 90 days after the day on which the notice is given.
851E(9) Notification of variation.As soon as practicable, the Minister must arrange for a copy of a notice of variation under this section to be:
(a) published in the Gazette ; and
(b) given to the widely held market body concerned.
The Minister may, by written notice given to a person who holds an approval under section 851B in relation to a widely held market body, revoke the approval if the Minister is satisfied that:
(a) it is in the national interest to do so; or
(b) an unacceptable control situation exists in relation to the widely held market body and in relation to the person; or
(c) there has been a contravention of a condition to which the approval is subject. 851F(2) [ When revocation takes effect]
The revocation takes effect on the day specified in the notice of revocation. The specified day must be a day at least 90 days after the day on which the notice is given.
851F(3) [ Revocation at holder's request]If a person who holds an approval under section 851B requests the Minister to revoke the approval, the Minister must, by written notice given to the person, revoke the approval. The revocation takes effect on the day specified in the notice of revocation.
851F(4) [ Publication]As soon as practicable, the Minister must arrange for a copy of a notice of revocation under this section to be:
(a) published in the Gazette ; and
(b) given to the widely held market body concerned.
This section applies to an application under this Subdivision.
851G(2) [ Further information]The Minister may, by written notice given to the applicant, require the applicant to give the Minister, within a specified period, further information about the application.
851G(3) [ Consideration of application]The Minister may refuse to consider the application until the applicant gives the Minister the information.
The Minister must make a decision on an application under this Subdivision within 30 days after receiving the application.
851H(2) [ Extension of deadline]However, before the end of the 30 days, the Minister may decide to extend the period for considering the application until the end of 60 days after the application was received.
851H(3) [ Deemed approval and publication]If the Minister has not made a decision within the 30 days (or the 60 days, if subsection (2) applies), the Minister is taken to have granted whatever was applied for. As soon as practicable after that happens, the Minister must arrange for a notice to that effect to be:
(a) published in the Gazette ; and
(b) given to the widely held market body concerned. 851H(4) [ Cessation of time for making a decision]
The time for making the decision stops running if the Minister gives a notice under section 851G in relation to the application, and does not start again until the notice is complied with.
851H(5) [ Application]The time limit in this section does not apply to an application under section 851A or 851E if an unacceptable control situation exists in relation to the applicant and in relation to the relevant widely held market body at any time before the Minister makes a decision.
If, at the time at which a body corporate becomes a widely held market body: (a) a person holds a particular percentage of voting power in the body; and (b) the holding of that particular percentage by the person would (apart from this section) constitute an unacceptable control situation in relation to the body and in relation to the person;
the person is taken to be granted at that time an approval under section 851B to hold that percentage of voting power in the body.
Note: Conditions can be imposed on the approval under section 851D and then varied or revoked in accordance with that section.
851I(2)
The Minister is taken to have complied with the Minister ' s obligations under section 851B in relation to the granting of the approval to the person.
851I(3)
(Repealed by No 87 of 2024, s 3, Sch 2[34] (effective 24 September 2024).)
The Court must not make an order under section 850D if:
(a) the order would result in the acquisition of property from a person otherwise than on just terms; and
(b) the order would be invalid because of paragraph 51 (xxxi) of the Constitution. 852A(2) [ Limitation]
Section 1350 does not apply in relation to the making of an order under section 850D .
852A(3) [ Definitions]In this section:
acquisition of property
has the same meaning as in paragraph
51
(xxxi) of the Constitution.
just terms
has the same meaning as in paragraph
51
(xxxi) of the Constitution.
(a) one or more persons enter into, begin to carry out or carry out a scheme; and
(b) it would be concluded that the person, or any of the persons, who entered into, began to carry out or carried out the scheme or any part of the scheme did so for the sole or dominant purpose of avoiding the application of any provision of Subdivision A in relation to any person or persons (whether or not mentioned in paragraph (a)); and
(c) as a result of the scheme or a part of the scheme, a person (the controller ) increases the controller's voting power in a widely held market body;
the Minister may give the controller a written direction to cease having that voting power within a specified time.
852B(2) [ Compliance]A person who is subject to a written direction under subsection (1) must comply with the direction.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
852B(3) [ ``increase'']In this section:
increase
voting power includes increasing it from a starting point of nil.
This Division applies in relation to controlled Australian financial bodies.
Meaning of controlled Australian financial body
852DA(2)
A body corporate is a controlled Australian financial body if the body is: (a) registered under Chapter 2A ; and (b) any of the following:
(i) a market licensee;
(ii) a CS facility licensee;
(iii) a derivative trade repository licensee;
(iv) a benchmark administrator licensee;
(c) not a widely held market body.
(v) the holding company of a licensee mentioned in any of subparagraphs (i) to (iv) ; and
An unacceptable control situation exists in relation to a controlled Australian financial body and a particular person if the person ' s voting power in the body is more than: (a) unless paragraph (b) applies - 20%; or (b) if an approval of a higher percentage is in force under Subdivision C for the body and the person - that higher percentage.
A person passes the legitimate control test for having a particular percentage of voting power in a controlled Australian financial body unless it is reasonable to expect that the person ' s having of that percentage of voting power in the body would adversely affect: (a) if the body is a licensee mentioned in any of subparagraphs 852DA(2)(b)(i) to (iv) - the body ' s ability to meet one or more of its obligations as such a licensee under this Act; or (b) if the body is the holding company of a licensee mentioned in any of subparagraphs 852DA(2)(b)(i) to (iv) - the licensee ' s ability to meet one or more of its obligations as such a licensee under this Act.
A person contravenes this section if: (a) the person acquires, or the person with one or more other persons under an arrangement acquire, shares in a body corporate; and (b) the acquisition has the result that:
(i) an unacceptable control situation comes into existence in relation to a controlled Australian financial body and a person; or
(ii) if an unacceptable control situation already exists in relation to a controlled Australian financial body and a person (the controller ) - there is an increase in the voting power of the controller in the controlled Australian financial body.
Note 1: The person mentioned in subparagraph (b)(i) or (b)(ii) need not be the person who contravenes this section.
Note 2: A contravention of this section is an offence (see subsection 1311(1) ).
If an unacceptable control situation exists in relation to a controlled Australian financial body and a person, any of the following courts may make such orders as the court considers appropriate for the purpose of ensuring that the unacceptable control situation ceases to exist: (a) the Federal Court; (b) the Federal Circuit and Family Court of Australia (Division 2); (c) a court of a State or Territory that has jurisdiction in relation to the matter.
852DE(2)
However, the court may only make orders under this section on application by: (a) ASIC; or (b) the body; or (c) a person who has any voting power in the body.
852DE(3)
Without limiting subsection (1) , the court ' s orders may include: (a) an order directing the disposal of shares; or (b) an order restraining the exercise of any rights attached to shares; or (c) an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person; or (d) an order that any exercise of rights attached to shares be disregarded; or (e) an order directing any person to do or refrain from doing a specified act, for the purpose of securing compliance with any other order made under this section; or (f) an order containing such ancillary or consequential provisions as the court thinks just.
852DE(4)
Before making an order under this section, the court may direct that notice of the application: (a) be given to such persons as the court thinks fit; or (b) be published in such manner as the court thinks fit.
852DE(5)
The court may, by order: (a) rescind, vary or discharge an order made by the court under this section; or (b) suspend the operation of such an order.
If any conduct (including a refusal or failure to act) amounts or would amount to a contravention of this Division in relation to a particular controlled Australian financial body, the body is taken, for the purposes of section 1324 , to be a person whose interests are affected by the conduct.
852DF(2)
Subsection (1) of this section does not limit the class of persons whose interests are affected by the conduct.
852DF(3)
Sections 852DE and 1324 do not limit each other.
A person may apply for approval to have voting power of more than 20% in a particular controlled Australian financial body by lodging with ASIC an application in the prescribed form that sets out: (a) the percentage of voting power (if any) the person currently has in the body; and (b) the percentage of voting power the person is seeking approval to have in the body; and (c) the period (whether indefinite or not) the person is seeking the approval for; and (d) the person ' s reasons for making the application.
Note 1: For fees in respect of lodging applications, see Part 9.10 .
Note 2: For applications to vary an approved percentage, see section
ASIC must, by written notice given to the applicant, approve the applicant having a specified percentage of voting power in the body if: (a) ASIC is satisfied the specified percentage is the highest percentage (up to that sought by the applicant) of voting power in the body for which the applicant passes the legitimate control test; and (b) ASIC believes relevant information in the application, or later provided by the applicant, to be correct.
Otherwise, ASIC must, by written notice given to the applicant, refuse such an approval.
852DH(2)
A notice of approval under subsection (1) must specify that the approval to have the specified percentage of voting power in the body is in force: (a) for a specified period, which may be extended under section 852DK ; or (b) indefinitely from a specified day;
but may be varied under section 852DM or revoked under section 852DN .
Note: The notice may also specify that the approval is subject to conditions: see subsection 852DL(1) .
852DH(3)
ASIC must give a copy of a notice under subsection (1) to the body.
An approval under subsection 852DH(1) is in force as specified under subsection 852DH(2) in the notice of the approval.
If: (a) a person has an approval under subsection 852DH(1) to have a specified percentage of voting power in a controlled Australian financial body; and (b) the approval is in force for a specified period (including an extended period from a previous operation of this section);
the person may apply to extend that period by lodging with ASIC an application in the prescribed form that sets out:
(c) the extended period the person is seeking (which could be an indefinite period); and (d) the person ' s reasons for making the application.Note 1: For fees in respect of lodging applications, see Part 9.10 .
Note 2: ASIC can vary the period of an approval on its own initiative: see subsection 852DM(4) .
852DK(2)
ASIC must, by written notice given to the applicant, extend the period of the applicant ' s approval to have the specified percentage of voting power in the body if: (a) ASIC is satisfied the specified percentage remains the highest percentage (up to that originally sought by the applicant) of voting power in the body for which the applicant passes the legitimate control test; and (b) ASIC believes relevant information in the application, or later provided by the applicant, to be correct.
Otherwise, ASIC must, by written notice given to the applicant, refuse such an extension.
852DK(3)
A notice of extension under subsection (2) must specify that the approval: (a) is in force for the extended period, which may be further extended under this section; and (b) may be varied under section 852DM or revoked under section 852DN .
852DK(4)
ASIC must give a copy of a notice under subsection (2) to the body.
Conditions of approval
852DL(1)
An approval under subsection 852DH(1) is subject to such conditions (if any) specified in the notice of approval given under that subsection.
Imposing, varying or revoking conditions after approval
852DL(2)
ASIC may, by written notice given to a person who holds an approval under subsection 852DH(1) to have a specified percentage of voting power in a controlled Australian financial body: (a) impose oneor more conditions or further conditions to which the approval is subject; or (b) vary or revoke any condition:
(i) imposed under paragraph (a) ; or
(ii) specified in the notice of approval.
852DL(3)
ASIC must give a copy of a notice under subsection (2) to the body.
Power exercisable on own initiative or by application
852DL(4)
ASIC ' s power under subsection (2) may be exercised: (a) on ASIC ' s own initiative; or (b) on application by the person who holds the approval under subsection 852DH(1) .
Note: For fees in respect of lodging applications, see Part 9.10 .
Notice of refusal of application
852DL(5)
If ASIC refuses to exercise its power under subsection (2) on an application made under paragraph (4)(b) , ASIC must give written notice of the refusal to the applicant.
Breach of condition
852DL(6)
A person who holds an approval under subsection 852DH(1) must give written notice to ASIC if they become aware that they have breached a condition to which the approval is subject.
Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .
This section applies to a person holding an approval under subsection 852DH(1) to have a specified percentage (the current approved percentage ) of voting power: (a) in a controlled Australian financial body; and (b) for a specified period or indefinitely (the current approved duration );
including as affected by any variation from a previous operation of this section.
Application by holder of approval to vary percentage
852DM(2)
The person may apply to vary the current approved percentage by lodging with ASIC an application in the prescribed form that sets out: (a) the percentage of voting power the person currently has in the body; and (b) the percentage of voting power the person is seeking approval to have in the body; and (c) the person ' s reasons for making the application.
Note: For fees in respect of lodging applications, see Part 9.10 .
852DM(3)
ASIC must, by written notice given to the applicant, approve the applicant having a new specified percentage of voting power in the body for the current approved duration if: (a) ASIC is satisfied the new specified percentage is the highest percentage (up to that sought by the applicant and greater than the current approved percentage) of voting power in the body for which the applicant passes the legitimate control test; and (b) ASIC believes relevant information in the application, or later provided by the applicant, to be correct.
Otherwise, ASIC must, by written notice given to the applicant, refuse such a variation.
ASIC varying percentage or period on own initiative
852DM(4)
ASIC may, on its own initiative, by written notice given to the person, vary the person ' s approval as follows, if ASIC is satisfied of the matters in subsection (5) : (a) vary the current approved percentage to a new specified percentage of voting power in the body for the current approved duration; or (b) vary the current approved duration to a new specified period or an indefinite period (the new specified duration ) for the current approved percentage of voting power in the body; or (c) vary both the current approved percentage and the current approved duration to a new specified percentage of voting power in the body for a new specified period or an indefinite period (also the new specified duration ).
Note: ASIC could, for example, vary the approval after becoming aware that information contained in the person ' s application for approval has ceased to be correct: see section 852DQ .
852DM(5)
The matters are that the specified percentage that is to result from the variation is the highest percentage of voting power in the body for which the person passes the legitimate control test.
Note: The specified percentage that is to result from the variation could be the current approved percentage or a new specified percentage. Similarly, the approved duration that is to result from the variation could be the current approved duration or a new specified duration.
Downwards variations
852DM(6)
If ASIC varies under subsection (4) either or both of the following: (a) the current approved percentage to a lower new specified percentage; (b) the current approved duration to a shorter new specified duration;
then:
(c) the variation takes effect on the day specified in the notice of variation; and (d) the specified day must be at least 90 days after the day on which the notice is given under subsection (4) .Upwards variations
852DM(7)
If ASIC: (a) varies under subsection (3) the current approved percentage; or (b) varies under subsection (4) the current approved percentage or the current approved duration other than as described in subsection (6) ;
the variation takes effect on the day the notice of variation is given under subsection (3) or (4) (as applicable).
Notice to the body
852DM(8)
ASIC must give a copy of a notice of approval under subsection (3) or a notice under subsection (4) to the body.
ASIC may, on its own initiative, by written notice given to a person holding an approval under subsection 852DH(1) to have a specified percentage of voting power in a controlled Australian financial body, revoke the approval if ASIC is satisfied that: (a) the person no longer passes the legitimate control test for the specified percentage of voting power in the body; or (b) an unacceptable control situation exists in relation to the body and the person; or (c) there has been a contravention of a condition to which the approval is subject; or (d) information contained in an application given by the person under this Subdivision was incorrect and the person did not give ASIC the correct information before the application was decided.
Note: The specified percentage is the percentage currently applying after any variations under this Subdivision.
852DN(2)
A revocation under subsection (1) takes effect on the day specified in the notice of revocation. The specified day must be at least 90 days after the day on which the notice is given.
852DN(3)
ASIC must, by written notice given to the person, revoke the approval if the person requests ASIC to do so. A revocation under this subsection takes effect on the day specified in the notice of revocation.
852DN(4)
ASIC must give a copy of a notice of revocation under subsection (1) or (3) to the body.
If an application is lodged with ASIC under this Subdivision, ASIC may: (a) by written notice given to the applicant, request the applicant to give ASIC, within a period specified in the notice, further information about the application; and (b) refuse to consider the application until the applicant gives ASIC the information.
If information contained in an application lodged under this Subdivision: (a) is incorrect; or (b) ceases to be correct after the application is made;
the applicant must, as soon as practicable after the applicant becomes aware of that fact, give ASIC the correct information in writing.
Note: Failure to comply with this section is an offence: see subsection 1311(1) .
Time limit
852DR(1)
ASIC must decide an application lodged under this Subdivision within the 90-day period starting on the day the application was lodged. This subsection has effect subject to subsections (2) , (3) and (5) .
Extending the time limit
852DR(2)
Before the end of the period mentioned in subsection (1) : (a) ASIC may, by written notice given to the applicant, extend the period by up to 30 days; and (b) if ASIC does so, this section has effect as if references to the period mentioned in subsection (1) were references to the period as so extended.
Stopping the clock
852DR(3)
In working out the period mentioned in subsection (1) , disregard: (a) the period:
(i) starting on the day ASIC gives the applicant a notice under section 852DP requesting information about the application; and
(b) any day on which ASIC believes relevant information currently before ASIC, that was provided by the applicant in relation to the application, is incorrect.
(ii) ending on the day the applicant gives ASIC all of the information requested under, or ASIC otherwise disposes of, the notice; and
Deemed approval
852DR(4)
If ASIC has not decided the application by the end of the period mentioned in subsection (1) : (a) ASIC is taken to have granted whatever was applied for on the day after the end of that period; and (b) as soon as practicable afterwards, ASIC must give a notice to that effect to:
(i) the applicant; and
(ii) the controlled Australian financial body concerned.
Application of this section
852DR(5)
This section does not apply in relation to an application lodged under section 852DG or 852DM if an unacceptable control situation exists in relation to the applicant and the controlled Australian financial body concerned at any time before ASIC decides the application.
A court must not make an order under section 852DE if: (a) the order would result in the acquisition of property from a person otherwise than on just terms; and (b) the order would be invalid because of paragraph 51(xxxi) of the Constitution.
852DS(2)
To avoid doubt, this section applies in relation to the making of an order under section 852DE instead of section 1350 .
852DS(3)
In this section:
acquisition of property
has the same meaning as in paragraph
51(xxxi)
of the Constitution.
just terms
has the same meaning as in paragraph
51(xxxi)
of the Constitution.
If: (a) one or more persons enter into, begin to carry out or carry out a scheme; and (b) it would be concluded that the person, or any of the persons, who:
(i) entered into; or
(ii) began to carry out; or
the scheme or any part of the scheme did so for the sole or dominant purpose of avoiding the application of any provision of Subdivision B in relation to any person or persons (whether or not mentioned in paragraph (a) ); and (c) as a result of the scheme or a part of the scheme, a person (the controller ) increases (including from a starting point of nil) the controller ' s voting power in a controlled Australian financial body;
(iii) carried out;
ASIC may give the controller a written direction to cease having that voting power within a time specified in the direction.
852DT(2)
A person who is subject to a written direction under subsection (1) must comply with the direction.
Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .
An individual is a disqualified individual if: (a) a declaration by ASIC that the individual is disqualified is in effect under section 853C ; or (b) the individual is disqualified from managing a corporation under section 206B ; or (c) the individual is on the Register that ASIC must keep under section 1274AA .
[ CCH Note: S 853A will be amended by No 69 of 2020, s 3, Sch 1[1136], by substituting para (c) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (c) will read:
(c) the individual is included in the record the Registrar maintains under section 1274AA .]
An individual is involved in a market licensee, a CS facility licensee, a derivative trade repository licensee or a benchmark administrator licensee, or an applicant for such a licence, if: (a) the individual is a director, secretary or senior manager of the licensee or applicant, or in a holding company of the licensee or applicant; or (b) the individual has more than 20% of the total voting power in the licensee or applicant, or in a holding company of the licensee or applicant.
ASIC may declare in writing that an individual who is involved in a market licensee, a CS facility licensee, a derivative trade repository licensee or a benchmark administrator licensee, or in an applicant for a licence of any of those kinds, is disqualified for the purposes of this Division.
853C(2)
ASIC may make such a declaration only if ASIC is satisfied that, because the individual is unfit to be involved in the licensee or applicant, there is a risk that the licensee or applicant will breach its obligations under this Chapter if the declaration is not made.
[ CCH Note: S 853C(2) will be substituted by No 87 of 2024, s 3, Sch 2[128] (effective 17 March 2025). S 853C(2) will read:
853C(2)
ASIC may make such a declaration only if ASIC is satisfied that the individual is unfit to be involved in the licensee or applicant.]
853C(3)
In deciding whether an individual is unfit as mentioned in subsection (2) , ASIC must take into account such matters as the individual ' s fame, character and integrity, rather than his or her competence, experience, knowledge or other such attributes.
[ CCH Note: S 853C(3) will be substituted by No 87 of 2024, s 3, Sch 2[128] (effective 17March 2025). S 853C(3) will read:
853C(3)
In deciding whether an individual is unfit as mentioned in subsection (2) , ASIC must take into account such matters as the individual ' s fame, character and integrity.]
853C(4)
A declaration may be expressed to remain in effect for a specified period or until a specified event occurs. Otherwise, it remains in effect indefinitely (unless it is revoked under section 853E ).
ASIC must not make a declaration under section 853C unless it has followed the procedure in this section.
853D(2)
Within 42 days after: (a) a body corporate applies for an Australian market licence, an Australian CS facility licence, an Australian derivative trade repository licence or a benchmark administrator licence; or (b) ASIC receives other information that may be relevant to deciding whether to make a declaration under section 853C about an individual who is involved in an applicant for an Australian market licence, an Australian CS facility licence, an Australian derivative trade repository licence or a benchmark administrator licence, or in an existing licensee;
ASIC may give the applicant or licensee written notice that ASIC proposes to make a declaration under section 853C about the individual in question.
853D(3)
ASIC must give a copy of the notice to the individual.
853D(4)
The notice must: (a) state the grounds on which ASIC proposes to make the declaration; and (b) require the applicant or licensee, and the individual, to show, at a hearing before a specified person, why the declaration should not be made; and (c) specify a reasonable time and place at which the hearing is to be held.
However, if the applicant or licensee, and the individual, consent, the person conducting the hearing may fix a different time or place.
853D(5)
The person conducting the hearing must: (a) give the applicant or licensee, and the individual, an opportunity to be heard at the hearing; and (b) give ASIC:
(i) a report about the hearing; and
(ii) a recommendation about the grounds in the notice on which it is proposed to make the declaration.
853D(6)
As soon as practicable after the hearing, ASIC must: (a) decide whether to make the declaration; and (b) give both of the following persons a copy of the declaration, or a written notice of its decision not to make the declaration:
(i) the applicant or licensee;
(ii) the individual.
ASIC may, in writing, revoke a declaration under section 853C if it is no longer satisfied as mentioned in subsection 853C(2) in relation to the individual in question.
853E(2)
ASIC must give a copy of the revocation to the relevant applicant or licensee and the individual.
A disqualified individual must not become involved in a market licensee, a CS facility licensee, a derivative trade repository licensee or a benchmark administrator licensee.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
853F(2)
A disqualified individual who is involved in a market licensee, a CS facility licensee, a derivative trade repository licensee or a benchmark administrator licensee must take all reasonable steps to ensure that he or she ceases to be involved in the licensee.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).
853F(3)
A person contravenes this subsection if the person contravenes subsection (2).
Note: This subsection is acivil penalty provision (see section 1317E ).
If ASIC becomes aware that an individual who is involved in a market licensee, a CS facility licensee, a derivative trade repository licensee or a benchmark administrator licensee is a disqualified individual because of paragraph 853A(b) or (c) , ASIC must notify the individual and the licensee as soon as practicable.
[ CCH Note: Div 2A will be inserted by No 87 of 2024, s 3, Sch 2 [ 135] (effective 17 March 2025). Div 2A will read:
Division 2A - Financial market infrastructure banning orders
Subdivision A - Making financial market infrastructure banning orders
SECTION 853H ASIC ' S POWER TO MAKE FINANCIAL MARKET INFRASTRUCTURE BANNING ORDERS
853H(1)
ASIC may, in writing, make one or more orders ( FMI banning orders ) against an individual if:
(a) the individual becomes an insolvent under administration; or
(b) the individual is convicted of fraud; or
(c) ASIC has reason to believe that the individual is not a fit and proper person to:
(i) perform one or more functions of a core officer of an FMI licensee; or
(ii) control an FMI licensee; or
(d) without limiting paragraph (c) - ASIC has reason to believe that the individual is not capable of:
(i) performing one or more functions of a core officer of an FMI licensee; or
(ii) controlling an FMI licensee;including because the individual is not competent to perform the functions or control an FMI licensee; or
(e) the individual has not complied with a financial services law; or
(f) ASIC has reason to believe that the individual is likely to contravene a financial services law; or
(g) the individual has been involved in the contravention of a financial services law by another person; or
(h) ASIC has reason to believe that the individual is likely to become involved in the contravention of a financial services law by another person; or
(i) section 853M applies to the individual in relation to one or more corporations.
Copy of banning order to be given to the individual
853H(2)
ASIC must give a copy of a banning order to the individual against whom it was made.
SECTION 853J INDIVIDUAL TO BE GIVEN AN OPPORTUNITY TO BE HEARD BEFORE ASIC MAKES FINANCIAL MARKET INFRASTRUCTURE BANNING ORDER
853J(1)
Despite subsection 853H(1) , ASIC may make an FMI banning order against an individual only after giving the individual an opportunity:
(a) to appear, or be represented, at a hearing before ASIC that takes place in private; and
(b) to make submissions to ASIC on the matter.
853J(2)
However, ASIC may make an FMI banning order against an individual without giving the individual the opportunities mentioned in subsection (1) if ASIC ' s grounds for making the order are, or include:
(a) that the individual is not a fit and proper person under paragraph 853H(1)(c) because the individual is or has been a core officer of an entity that has had a licence suspended or cancelled (see paragraph 853K(2)(a) ); or
(b) that the individual has been convicted of serious fraud.
SECTION 853K WHEN AN INDIVIDUAL IS NOT A FIT AND PROPER PERSON
853K(1)
ASIC must have regard to the matters set out in subsection (2) (subject to Part VIIC of the Crimes Act 1914 ) for the purposes of applying paragraph 853H(1)(c) of this Act to an individual.Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve individuals from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
853K(2)
The matters are as follows:
(a) whether the individual has ever been a core officer of an entity that has held:
(i) an Australian market licence; or
(ii) an Australian CS facility licence; or
(iii) an Australian derivative trade repository licence; or
(iv) a benchmark administrator licence;that has been suspended or cancelled;
(b) whether any of the following has ever been made against the individual:
(i) an FMI banning order;
(ii) a banning order, or a disqualification order under Subdivision B of Division 8 of Part 7.6 ;
(iii) a banning order, or a disqualification order, under Part 2-4 of the National Consumer Credit Protection Act 2009 ;
(c) whether the individual has ever been disqualified under this Act, or any other law of the Commonwealth or of a State or Territory, from managing corporations;
(d) whether the individual has ever been banned from engaging in a credit activity (within the meaning of the National Consumer Credit Protection Act 2009 ) under a law of a State or Territory;
(e) whether the individual has ever been linked to a refusal or failure to give effect to a determination made by AFCA;
(f) whether the individual has ever been an insolvent under administration;
(g) whether, in the last 10 years, the individual has been convicted of an offence;
(h) any relevant information given to ASIC by a State or Territory, or an authority of a State or Territory, in relation to the individual;
(i) any other matter prescribed by the regulations;
(j) any other matter ASIC considers relevant.Note: To work out whether an individual has been linked as described in paragraph (e), see section 910C .
SECTION 853L WHEN AN INDIVIDUAL CONTRAVENES A FINANCIAL SERVICES LAW
853L
For the purposes of subsection 853H(1) , an individual contravenes a financial services law if the individual fails to comply with a duty imposed under that law, even if the provision imposing the duty is not an offence provision or a civil penalty provision. SECTION 853M WHEN AN INDIVIDUAL HAS BEEN A CORE OFFICER OF A CORPORATION UNABLE TO PAY ITS DEBTS
853M
This section applies to an individual in relation to a corporation if, within the last 7 years:
(a) This section applies to an individual in relation to a corporation if, within the last 7 years:
(b) the corporation was wound up either:
(i) while the individual was a core officer of the corporation; or
(ii) within the 12 months after the individual ceased to be a core officer of the corporation; and
(c) a liquidator lodged a report under subsection 533(1) (including that subsection as applied by section 526-35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ) about the corporation ' s inability to pay its debts.Subdivision B - Matters relating to financial market infrastructure banning orders
SECTION 853N WHAT A FINANCIAL MARKET INFRASTRUCTURE BANNING ORDER PROHIBITS
853N(1)
An FMI banning order made against an individual may specify that the individual is prohibited from doing one or more of the following:
(a) controlling, whether alone or in concert with one or more other entities, an FMI licensee;
(b) performing any functions of a core officer of an FMI licensee;
(c) performing specified functions of a core officer of an FMI licensee.
853N(2)
An FMI banning order may specify that a particular prohibition specified in the order applies against the individual:
(a) for a specified period; or
(b) permanently.Note: This subsection applies separately to each prohibition specified in the order.
853N(3)
A FMI banning order may include a provision allowing the individual against whom it was made, subject to any specified conditions:
(a) to do specified acts; or
(b) to do specified acts in specified circumstances;that the order would otherwise prohibit them from doing.
SECTION 853P EFFECT OF FINANCIAL MARKET INFRASTRUCTURE BANNING ORDERS
853P(1)
An individual against whom an FMI banning order is made must not engage in conduct in breach of the banning order.
Fault-based offence
853P(2)
An individual commits an offence if the individual contravenes subsection (1) .
Civil liability
853P(3)
An individual contravenes this subsection if the individual contravenes subsection (1) .Note: This subsection is a civil penalty provision: see section 1317E .
SECTION 853Q VARIATION OR CANCELLATION OF FINANCIAL MARKET INFRASTRUCTURE BANNING ORDERS
853Q(1)
ASIC may vary or cancel an FMI banning order, by giving written notice to the individual against whom the order was made, if ASIC is satisfied that it is appropriate to do so because of a change in any of the circumstances based on which ASIC made the order.
853Q(2)
ASIC may do so:
(a) on its own initiative; or
(b) if the individual against whom the order was made lodges with ASIC an application for ASIC to do so, which is accompanied by the documents, if any, required by regulations made for the purposes of this paragraph.Note: For fees in respect of lodging applications, see Part 9.10 .
853Q(3)
If ASIC proposes not to vary or cancel an FMI banning order in accordance with an application lodged by an individual under paragraph (2)(b) , ASIC must give the individual an opportunity:
(a) to appear, or be represented, at a hearing before ASIC that takes place in private; and
(b) to make submissions to ASIC on the matter.
SECTION 853R DATE OF EFFECT AND PUBLICATION OF FINANCIAL MARKET INFRASTRUCTURE BANNING ORDERS, VARIATION OR CANCELLATION
Date of effect
853R(1)
An FMI banning order, or variation or cancellation of an FMI banning order, takes effect when it is given to the individual against whom the order is made.
Publication
853R(2)
If ASIC makes, varies or cancels an FMI banning order, ASIC must publish a notice on ASIC ' s website. ASIC must do so:
(a) as soon as practicable after the action takes effect; or
(b) sooner.
853R(3)
The notice must state:
(a) when the action takes effect; and
(b) subject to subsection (4) :
(i) in the case of the making of an FMI banning order - set out a copy of the FMI banning order; or
(ii) in the case of the variation of an FMI banning order - set out a copy of the FMI banning order as varied.
853R(4)
However, if:
(a) the FMI banning order contains a provision of the kind referred to in subsection 853N(3) ; and
(b) ASIC considers that the notice on ASIC ' s website would be unreasonably long if that provision were included;the notice may instead set out a summary of the provision ' s effect.
SECTION 853S STATEMENTS OF REASONS
853S(1)
An FMI banning order given to an individual must be accompanied by a statement of reasons for the order.
853S(2)
If ASIC varies an FMI banning order made against an individual, ASIC must, on request by the individual, give the individual a statement of reasons for the variation.]
The regulations may make provision for and in relation to requiring a person:
(a) to keep and retain records that are relevant to whether a person has voting power in a widely held market body and, if so, how much; and
(b) to keep and retain records that are relevant to determining whether any disqualified individual is involved in a market licensee, a CS facility licensee or a derivative trade repository licensee; and
(c) to give the Minister or ASIC information that is relevant to the matters mentioned in paragraphs (a) and (b); and
(d) to give a widely held market body information that is relevant to the matter mentioned in paragraph (a).
854A(2)
The regulations may provide that information given in accordance with a requirement covered by paragraph (1)(c) or (d) must be verified by statutory declaration.
854A(3)
However, an individual is not required to give information in accordance with a requirement covered by paragraph (1)(c) or (d) if the information might tend to incriminate the individual or expose the individual to a penalty.
854A(4)
A person contravenes this section if:
(a) the person makes or keeps a record in compliance, or purported compliance, with a requirement covered by subsection (1); and
(b) the person does so knowing that the record:
(i) isfalse or misleading; or
(ii) omits any matter or thing without which the record is misleading.
Note: A contravention of this subsection is an offence (see subsection 1311(1) ).
854A(5)
Regulations made for the purposes of this section may make provision for or in relation to a matter by conferring a power on the Minister.
SECTION 854B EXEMPTIONS AND MODIFICATIONS BY REGULATIONS 854B(1) [ Scope]
(a) exempt a person or class of persons from all or specified provisions of this Part; or
(b) provide that this Part applies as if specified provisions were omitted, modified or varied as specified in the regulations.
(Repealed by No 141 of 2003, s 3, Sch 2 [ 18] (effective 18 December 2003).)
854B(3) [ " provisions of this Part " ]
For the purpose of this section, the provisions of this Part include:
(a) definitions in this Act, or in the regulations, as they apply to references in this Part; and
(b) any provisions of Part 10.2 (transitional provisions) that relate to provisions of this Part.
[ CCH Note: The next section is s 880A.]