Corporations (NZ Closer Economic Relations) and Other Legislation Amendment Act 2007 (Cth)

Corporations (NZ Closer Economic Relations) and Other Legislation Amendment Act 2007 No. 85, 2007 An Act to amend the law in relation to corporations and trade practices, and for other purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Mutual recognition of securities offers Corporations Act 2001 Schedule 2—Recognition of companies Corporations Act 2001 Schedule 3—Protection of information obtained by the Australian Competition and Consumer Commission Radiocommunications Act 1992 Trade Practices Act 1974 Corporations (NZ Closer Economic Relations) and Other Legislation Amendment Act 2007 No. 85, 2007 An Act to amend the law in relation to corporations and trade practices, and for other purposes [Assented to 21 June 2007] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Corporations (NZ Closer Economic Relations) and Other Legislation Amendment Act 2007. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 21 June 2007 2. Schedule 1, items 1 to 18 A single day to be fixed by Proclamation. 21 December 2007 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 3. Schedule 1, item 19 Immediately after the provision(s) covered by table item 2. 21 December 2007 However, if the provision(s) covered by table item 2 commence before the provision(s) covered by table item 6, the provision(s) covered by this table item do not commence at all. 4. Schedule 1, item 20 At the same time as the provision(s) covered by table item 2. Does not commence However, if the provision(s) covered by table item 6 commence before or at the same time as the provision(s) covered by table item 2, the provision(s) covered by this table item do not commence at all. 5. Schedule 1, items 21 and 22 At the same time as the provision(s) covered by table item 2. 21 December 2007 6. Schedule 2 A single day to be fixed by Proclamation. 1 September 2007 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2007L02627) 7. Schedule 3 The 28th day after the day on which this Act receives the Royal Assent. 19 July 2007 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Mutual recognition of securities offers Corporations Act 2001 1 Section 9 (after paragraph (b) of the definition of debenture) Insert: Note: This paragraph has an extended meaning in relation to Chapter 8 (see subsection 1200A(2)). 2 Section 9 (after paragraph (c) of the definition of managed investment scheme) Insert: Note: This paragraph has an extended meaning in relation to Chapter 8 (see subsection 1200A(3)). 3 Section 9 (after paragraph (i) of the definition of managed investment scheme) Insert: Note: This paragraph has an extended meaning in relation to Chapter 8 (see subsection 1200A(3)). 4 Section 9 Insert: recognised offer has the meaning given by section 1200B. 5 Section 111AF Before "Securities", insert "(1)". Note: The heading to section 111AF is altered by omitting "to which lodged or deemed prospectus relates" and substituting "held by 100 or more persons". 6 At the end of section 111AF Add: (2) Securities (except debentures and managed investment products) in a class of securities of a body are ED securities if securities in that class have been issued under a recognised offer and the offeror's records indicate that 100 or more people who reside in this jurisdiction have held securities in that class (whether or not as a result of the recognised offer) at all times since the issue. 7 Section 111AFA Before "Managed", insert "(1)". 8 At the end of section 111AFA Add: (2) Interests in a class of interests in a managed investment scheme issued by a body are ED securities if interests in that class have been issued under a recognised offer and the offeror's records indicate that 100 or more people who reside in this jurisdiction have held interests in that class (whether or not as a result of the recognised offer) at all times since the issue. 9 Section 111AI Repeal the section, substitute: 111AI Debentures Debentures of a borrower are ED securities if: (a) section 283AA requires the borrower to appoint a trustee; or (b) section 283AA does not apply to the borrower only because the offer of the debentures to which section 283AA would otherwise have applied is a recognised offer. 10 At the end of subsection 675(2) Add: 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). 11 At the end of subsection 734(4) Add: Note: Subsection (4) has an extended operation in relation to recognised offers under Chapter 8 (see subsection 1200L(1)). 12 At the end of subsection 734(5) Add: Note: Subsection (5) has an extended operation in relation to recognised offers under Chapter 8 (see subsection 1200L(2)). 13 At the end of subsection 734(6) Add: Note: Subsection (6) has an extended operation in relation to recognised offers under Chapter 8 (see subsection 1200L(3)). 14 Subsection 1018A(2) (note) Omit "Note", substitute "Note 1". 15 At the end of subsection 1018A(2) Add: Note 2: Subsection (2) has an extended operation in relation to recognised offers under Chapter 8 (see subsection 1200L(4)). 16 Subsection 1018A(3) (note) Omit "Note", substitute "Note 1". 17 At the end of subsection 1018A(3) Add: Note 2: Subsection (3) has an extended operation in relation to recognised offers under Chapter 8 (see subsection 1200L(5)). 18 After Chapter 7 Insert: Chapter 8—Mutual recognition of securities offers Part 8.1—Preliminary 1200A Definitions (1) In this Chapter: foreign recognition scheme means the provisions of a law of a recognised jurisdiction that are prescribed by the regulations as comprising a foreign recognition scheme for the purposes of this Chapter. law of a recognised jurisdiction includes law of part of a recognised jurisdiction. offer securities includes: (a) invite applications for the issue of securities; and (b) invite offers to purchase securities. offeror, of securities, means: (a) in relation to an offer of a kind prescribed by the regulations—a person of a kind prescribed by the regulations; and (b) otherwise—the person who has the capacity, or who agrees, to issue or transfer the securities if the offer is accepted. recognised jurisdiction means a foreign country prescribed by the regulations as a recognised jurisdiction. recognised offer has the meaning given by section 1200B. securities means: (a) a share in a body; or (b) a debenture of a body; or (c) an interest in a managed investment scheme; or (d) a legal or equitable right or interest in a security or interest covered by paragraph (a), (b) or (c); or (e) an option to acquire, by way of issue, an interest or right covered by paragraph (a), (b), (c) or (d). (2) For the purposes of this Chapter, paragraph (b) of the definition of debenture in section 9 is taken to include a reference to an undertaking by an institution, authorised by or under the law of a recognised jurisdiction as a deposit‑taking institution (however described), to repay money deposited with it, or lent to it, in the ordinary course of its banking business. (3) For the purposes of this Chapter: (a) paragraph (c) of the definition of managed investment scheme in section 9 is taken to include a reference to a partnership that, if this Act applied to it, would not need to be incorporated or formed under an Australian law because of regulations made for the purposes of subsection 115(2); and (b) paragraph (i) of the definition of managed investment scheme in section 9 is taken to include a reference to a scheme operated by an institution, authorised by or under the law of a recognised jurisdiction as a deposit‑taking institution (however described), in the ordinary course of its banking business. Part 8.2—Foreign offers that are recognised in this jurisdiction Division 1—Recognised offers 1200B When an offer is a recognised offer (1) An offer of securities becomes a recognised offer, in relation to a recognised jurisdiction, on the day the offer is first made in this jurisdiction, if the conditions in section 1200C are met in relation to the offer on that day. (2) The offer continues to be a recognised offer after that day, even if a condition in section 1200C ceases to be met after that day. (3) If, at the time an offer is first made in this jurisdiction, the offer would be a recognised offer but for a failure to meet the condition in subsection 1200C(5) or (6) that ASIC is satisfied is minor or technical, ASIC may declare in writing that the offer is a recognised offer within the meaning of subsection (1). (4) If ASIC makes a declaration under subsection (3) in relation to an offer, the condition is taken to have been met at the time the offer was first made in this jurisdiction. (5) A declaration under subsection (3) is not a legislative instrument. 1200C Conditions that must be met to be a recognised offer (1) For the purposes of subsection 1200B(1), the conditions that must be met are those set out in this section. (2) The person offering the securities must be: (a) a person incorporated by or under the law of the recognised jurisdiction; or (b) a natural person resident in the recognised jurisdiction; or (c) a legal person established by or under the law of the recognised jurisdiction; or (d) a person of a kind prescribed by regulations made in relation to the recognised jurisdiction for the purposes of this paragraph. (3) The person offering the securities must not be banned under section 1200P. (4) The offer must be an offer of a kind prescribed by the regulations in relation to the recognised jurisdiction. (5) At least 14 days before the day on which the offer is first made in this jurisdiction, the person making the offer must have lodged with ASIC: (a) a notice in the prescribed form (if any) of the person's intention to make a recognised offer; and (b) the documents and information required to be lodged under section 1200D. (6) If: (a) before the offer is first made in this jurisdiction; and (b) after a document or information was lodged with ASIC under section 1200D; either: (c) an event of a kind mentioned in the table in subsection 1200G(9) happened; or (d) the address for service in this jurisdiction of the person proposing to offer the securities changed; the person making the offer must have lodged with ASIC: (e) if paragraph (c) applies—the document or information that would have been required to have been lodged under subsection 1200G(9) for the event if that subsection had applied; and (f) if paragraph (d) applies—the changed address for service. 1200D Required documents and information (1) For the purposes of paragraph 1200C(5)(b), the documents and information required to be lodged under this section are: (a) any offer document required by the law of the recognised jurisdiction; and (b) the warning statement that is to be included with an offer document in this jurisdiction (which, if regulations are in force for the purposes of section 1200E, must comply with those regulations); and (c) unless paragraph (d) applies—the constitution of the body whose securities are to be the subject of the offer; and (d) if the securities that are to be the subject of the offer are interests in a managed investment scheme, rights or interests in such interests, or options to acquire such interests by way of issue—the constituent document of the scheme; and (e) details, in the prescribed form (if any), of any exemption from the securities law of the recognised jurisdiction that applies, but not exclusively, to the offer or to the offeror in relation to the offer; and (f) if the offeror is relying on subsection (2)—notice of the document or information that is not being lodged because of the offeror's reliance on that subsection; and (g) an address for service in this jurisdiction, in the prescribed form (if any); and (h) a copy of any exemption from the securities law of the recognised jurisdiction that applies exclusively to the offer or to the offeror; and (i) any other documents or information prescribed by the regulations. (2) For the purposes of this Chapter, a person is taken to have lodged a document or information under this section if: (a) the document or information has been lodged under Division 2 or 3 of Part 5B.2; or (b) the document or information is not required to be lodged because of section 601CDA or 601CTA. (3) For the purposes of this Chapter, a person is taken to have lodged a document or information under this section if the person lodged the document or information in compliance with subsection 1200C(6). 1200E Warning statement The regulations may, in relation to offer documents used in this jurisdiction for recognised offers, prescribe either or both of the following: (a) statements to be included with those documents that relate to the status of an offer as a recognised offer and the laws that regulate the offer; (b) details to be given in statements to be included with those documents that relate to the status of an offer as a recognised offer and the laws that regulate the offer. Division 2—Effect of a recognised offer 1200F Effect of a recognised offer (1) The provisions listed in the table do not apply, in relation to a recognised offer, to the things specified in the table for those provisions. Note: Recognised offers must comply with Division 3 instead. Provisions that do not apply in relation to a recognised offer Item These provisions: do not apply, in relation to the offer, to: 1 Chapter 2L if the recognised offer is an offer of debentures—the offeror. 2 Chapter 5C if the recognised offer is an offer of interests in a managed investment scheme—the operator of the managed investment scheme. 3 Chapter 6D, other than sections 736 and 738 (a) the recognised offer; or (b) the offeror of the recognised offer; or (c) any offer document for the offer. 4 Parts 7.6, 7.7 and 7.8, other than section 992AA (a) the issue or disposal of a security under the recognised offer; or (b) general advice (within the meaning of Chapter 7) contained in any offer document for the offer; or (c) general advice contained in an advertisement for the recognised offer issued by, or on behalf of, the offeror; or (d) the provision of a custodial or depository service (within the meaning of Chapter 7) in relation to interests in a managed investment scheme that are the subject of the recognised offer. 5 Part 7.9, other than sections 1020B and 1020C the offeror of the recognised offer. (2) Despite subsection (1), the regulations may: (a) apply a provision listed in the table in subsection (1) to a person or class of persons; or (b) apply a provision listed in the table in subsection (1) to a security or class of securities; or (c) provide that a provision listed in the table in subsection (1) applies with the modifications specified in the regulations. Division 3—Ongoing conditions for recognised offers 1200G Offering conditions When the offering conditions apply (1) The offering conditions in this section apply in relation to a recognised offer until the recognised offer closes in this jurisdiction. Note: Failure to comply with an offering condition is an offence (see sections 1200Q and 1311). Offering conditions (2) The offer must be made in the recognised jurisdiction as well as in this jurisdiction. (3) The offeror must meet the conditions in subsections 1200C(2) and (3). (4) The offer must meet the condition in subsection 1200C(4). (5) The offer must comply with the law of the recognised jurisdiction. (6) There must be no person concerned in the management of the offeror: (a) who is disqualified from managing corporations for the purposes of Part 2D.6; or (b) who is disqualified from being concerned in the management of the offeror under the law of the recognised jurisdiction; or (c) who is subject to a banning order under section 920A; or (d) who is subject to a court order under paragraph 921A(2)(a). (7) An offer document provided to a person in this jurisdiction must have included with it: (a) the warning statement lodged under subsection 1200D(1) for that offer document; or (b) if a changed warning statement is lodged with ASIC under subsection 1200G(9)—the changed warning statement. (8) The offeror must, on request by a person in this jurisdiction, provide a copy of the constitution or constituent document lodged under paragraph 1200D(1)(c) or (d). (9) If an event mentioned in an item of this table occurs in relation to the offer or offeror, the offeror must lodge with ASIC the document, statement or notice specified in the table for that event, by the time specified for that event. Offering condition under subsection (9) Item If: the offeror must lodge with ASIC: by this time: 1 a change is made to an offer document, or any other document, required by the law of the recognised jurisdiction in relation to the offer a copy of the document as changed no later than 7 days after the day on which the offeror notified (or should have notified) the home regulator of the change. 2 a change is made to the warning statement that is included with the offer document in this jurisdiction a copy of the warning statement as changed no later than 7 days after the day on which the offeror notified (or should have notified) the home regulator of the change. 3 a supplementary or replacement offer document is required by the law of the recognised jurisdiction a copy of the supplementary or replacement offer document no later than 7 days after the day on which the supplementary or replacement offer document is (or should have been) lodged with the home regulator. 4 a change is made to the constitution or constituent document lodged under paragraph 1200D(1)(c) or (d) a copy of the constitution or constituent document as changed no later than 7 days after the day on which the offeror notified (or should have notified) the home regulator of the change. 5 the home regulator makes, changes or revokes an exemption that applies, but not exclusively, to the offer or the offeror under the law of the recognised jurisdiction written notice in the prescribed form (if any) of the details of the exemption, change or revocation no later than 14 days after the making, change or revocation occurs. 6 the home regulator makes, changes or revokes an exemption that applies exclusively to the offer or the offeror under the law of the recognised jurisdiction a copy of the exemption, the exemption as changed, or notice in the prescribed form (if any) of the details of the revocation no later than 7 days after the making, change or revocation occurs. 7 the home regulator begins enforcement action, or exercises a power it has under law, in relation to the offeror or offer written notice in the prescribed form (if any) of the details of the action taken or power exercised no later than 7 days after the action is taken or the power is exercised. (10) For the purposes of this Chapter, a person is taken to have lodged a document under subsection (9) if: (a) the document has been lodged under Division 2 or 3 of Part 5B.2; or (b) the document is not required to be lodged because of section 601CDA or 601CTA. (11) If: (a) an event mentioned in the table in subsection (9) occurs while the offering conditions in this section apply; and (b) the time by which an offeror is required to lodge a document, statement or notice with ASIC because of that event is after the offering conditions cease to apply; then, for the purposes of this section and paragraph 1200Q(1)(b), the offering conditions are taken to continue to apply until that time in relation to the offer to the extent necessary to require the offeror to lodge the document, statement or information by that time. (12) The offer must meet any other conditions prescribed by the regulations. Home regulator (13) For the purposes of subsection (9), the home regulator for a recognised jurisdiction is an authority in the recognised jurisdiction whose functions under the law of the recognised jurisdiction include functions equivalent to any of those of ASIC under this Act and that is prescribed by the regulations as the home regulator for that jurisdiction. (14) If there is more than one authority in a recognised jurisdiction whose functions include functions under the law of the recognised jurisdiction equivalent to any of those of ASIC under this Act and that is prescribed under subsection (13), the regulations may prescribe the matters in relation to which that authority is to be regarded as the home regulator. 1200H Address for service condition When the address for service condition applies (1) The address for service condition in this section applies in relation to a recognised offer: (a) until the end of the last day on which a person who resides in this jurisdiction could acquire securities under the offer; and (b) if a person who resides in this jurisdiction acquires securities under the offer—at all times when the offeror's records indicate that someone who resides in this jurisdiction holds securities in the class of securities that was the subject of the recognised offer. Note: Failure to comply with the address for service condition is an offence (see sections 1200Q and 1311). Address for service condition (2) The offeror must lodge with ASIC written notice, in the prescribed form (if any), of any change in its address for service in this jurisdiction, no later than the end of the seventh day after the day on which the address changed. (3) If: (a) the offeror's address for service in this jurisdiction changes while the address for service condition in this section applies; and (b) the time by which the offeror is required to lodge notice with ASIC because of the change is after the address for service condition ceases to apply; then, for the purposes of this section and subparagraph 1200Q(2)(b)(i), the address for service condition is taken to continue to apply until that time to the extent necessary to require the offeror to lodge notice by that time. 1200J Dispute resolution condition When the dispute resolution condition applies (1) The dispute resolution condition in this section applies, to a person who is or who has been the offeror of a recognised offer, at all times when the person's records indicate that someone who resides in this jurisdiction holds securities in the class of securities that was the subject of the recognised offer. Note: Failure to comply with the dispute resolution condition is an offence (see sections 1200Q and 1311). Dispute resolution condition (2) The person must have a dispute resolution process that complies with subsection 1017G(2), if the recognised offer was an offer of: (a) interests in a managed investment scheme; or (b) rights or interests in such interests, or options to acquire such interests by way of issue. Exemption from the dispute resolution condition (3) ASIC may, on application by a person in the prescribed form (if any), grant the person an exemption from the dispute resolution condition in this section, subject to any conditions specified in the exemption. (4) If ASIC grants a person an exemption under subsection (3), then, for the purposes of this Chapter, the person is taken to comply with the dispute resolution condition in this section for so long as the exemption is in force. (5) ASIC may, in relation to an exemption under subsection (3): (a) vary, or impose, a condition in relation to the exemption; or (b) revoke the exemption. (6) A variation, imposition or revocation under subsection (5) takes effect: (a) if the person has an address for service in this jurisdiction—when it is served on the person at that address; or (b) if the person does not have an address for service in this jurisdiction—on publication in the Gazette. Division 4—Modification of provisions of this Act 1200K Additional operation of section 675 (continuous disclosure) In relation to a disclosing entity that has been the offeror of a recognised offer, section 675 also has the operation it would have if paragraph 675(2)(c) were replaced by the following paragraph: (c) the information is not required, by the law of the recognised jurisdiction to which the offer relates, to be included in a supplementary or replacement offer document; and 1200L Pre‑offer advertising Offers that need a disclosure document (1) Subsection 734(4) also has the operation it would have if: (a) the reference in that subsection to a disclosure document that has been lodged with ASIC were a reference to an offer document lodged with ASIC for the purposes of this Chapter; and (b) the reference in that subsection to section 739 were a reference to section 1200N. (2) Subsection 734(5) also has the operation it would have if: (a) references in that subsection to a disclosure document were references to an offer document that complies with the law of a recognised jurisdiction; and (b) references in that subsection to completing an application form were references to completing an application process under the law of that recognised jurisdiction. (3) Subsection 734(6) also has the operation it would have if: (a) references in that subsection to a disclosure document were references to an offer document lodged with ASIC for the purposes of this Chapter; and (b) references in that subsection to completing an application form were references to completing an application process under the law of the recognised jurisdiction to which the offer relates. Offers that need a Product Disclosure Statement (4) Subsection 1018A(2) also has the operation it would have if: (a) a reference in that subsection to a Product Disclosure Statement were a reference to an offer document that complies with the law of a recognised jurisdiction; and (b) a reference in that subsection to sale offers to which section 1012C will apply were a reference to sale offers to which section 1012C would apply if the financial product, when made available, were not made available under a recognised offer. (5) Subsection 1018A(3) also has, in relation to subsection 1018A(2), the operation it would have if: (a) the reference in that subsection to a Product Disclosure Statement were a reference to an offer document that complies with the law of a recognised jurisdiction; and (b) the reference to section 1020E were a reference to section 1200N. 1200M Modification by the regulations The regulations may modify a provision of this Act in relation to its application in respect of a recognised offer or a proposed offer of