C2004A00818 — Corporations Act 2001

1 Short title This Act may be cited as the Corporations Act 2001 . 2 Commencement This Act commences on a day to be fixed by Proclamation. 3 Constitutional basis for this Act (1) The operation of this Act in the referring States is based on: (a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and (b) the legislative powers that the Commonwealth Parliament has in respect of matters to which this Act relates because those matters are referred to it by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution. Note: The State referrals fully supplement the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament. (2) The operation of this Act in the Territories is based on: (a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of those Territories; and (b) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution. Despite section 2H of the Acts Interpretation Act 1901 , this Act as applying in those Territories is a law of the Commonwealth. (3) The operation of this Act outside Australia is based on: (a) the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and (b) the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution; and (c) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of the external Territories. (4) The operation of this Act in a State that is not a referring State is based on: (a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and (b) the legislative powers that the Commonwealth Parliament has in respect of matters to which this Act relates because those matters are referred to it by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution. 4 Referring States Reference of matters by State Parliament to Commonwealth Parliament (1) A State is a referring State if the Parliament of the State has referred the matters covered by subsections (4) and (5) to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution: (a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and (b) if and to the extent to which the matters are included in the legislative powers of the Parliament of the State. This subsection has effect subject to subsections (6) and (7). (2) A State is a referring State even if the State reference Act includes a provision to the effect that nothing in the State reference Act is intended to enable the making of laws pursuant to the amendment reference with the sole or main underlying purpose or object of regulating industrial relations matters even if, but for that provision in the State reference Act, the law would be a law with respect to a matter referred to the Parliament of the Commonwealth by the amendment reference. (3) A State is a referring State even if a law of the State provides that the reference to the Commonwealth Parliament of either or both of the matters covered by subsections (4) and (5) is to terminate in particular circumstances. Reference covering initial Corporations Act and ASIC Act (4) This subsection covers the matters to which the referred provisions relate to the extent of making laws with respect to those matters by including the referred provisions in the initial Corporations Act and the initial ASIC Act. Reference covering amendments of this Act and ASIC Act (5) This subsection covers the matters of the formation of corporations, corporate regulation and the regulation of financial products and services to the extent of the making of laws with respect to those matters by making express amendments of this Act or the ASIC Act. Effect of termination of reference (6) A State ceases to be a referring State if the State’s initial reference terminates. (7) A State ceases to be a referring State if: (a) the State’s amendment reference terminates; and (b) subsection (8) does not apply to the termination. (8) A State does not cease to be a referring State because of the termination of its amendment reference if: (a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and (b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and (c) that State’s amendment reference, and the amendment reference of every other State, terminates on the same day. Definitions (9) In this section: amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (5). express amendment of this Act or the ASIC Act means the direct amendment of the text of this Act or the ASIC Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by Commonwealth Acts, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act or the ASIC Act. initial ASIC Act means the ASIC Act as originally enacted. initial Corporations Act means this Act as originally enacted. initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4). referred provisions means: (a) the initial Corporations Act; and (b) the initial ASIC Act; to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States. State reference Act for a State is the law under which the initial reference and the amendment reference are given. 5 General territorial application of Act Geographical coverage of “this jurisdiction” (1) Section 9 defines this jurisdiction as the area that includes: (a) each referring State (including its coastal sea); and (b) each Territory (including its coastal sea, if any); and (d) also, for the purposes of the application of a provision of Chapter 7 or an associated provision (see subsection (10))—any external Territory in which the provision applies because of subsection (9) (but only to the extent provided for in that subsection). (2) Throughout this Act, this jurisdiction therefore consists of: (a) either: (i) the whole of Australia (if all the States are referring States); or (ii) Australia (other than any State that is not a referring State) if one or more States are not referring States; and (b) also, when used in or in relation to a provision of Chapter 7 or an associated provision (see subsection (10))—any external Territory in which the provision applies because of subsection (9) (but only to the extent provided for in that subsection). Operation in this jurisdiction (3) Each provision of this Act applies in this jurisdiction. Operation outside this jurisdiction (4) Subject to subsection (8), each provision of this Act also applies, according to its tenor, in relation to acts and omissions outside this jurisdiction. Residence, place of formation etc. (7) Each provision of this Act applies according to its tenor to: (a) natural persons whether: (i) resident in this jurisdiction or not; and (ii) resident in Australia or not; and (iii) Australian citizens or not; and (b) all bodies corporate and unincorporated bodies whether: (i) formed or carrying on business in this jurisdiction or not; and (ii) formed or carrying on business in Australia or not. Note: Paragraph (b)—many of the provisions in this Act apply only in relation to companies (that is, to companies that are registered under this Act). Operation in non ‑ referring States (8) This Act does not apply to an act or omission in a State that is not a referring State to the extent to which that application would be beyond the legislative powers of the Parliament (including powers it has under paragraphs 51(xxxvii) and (xxxix) of the Constitution). Expanded application of provisions of Chapter 7 and associated provisions (9) The regulations may provide that, in specified circumstances, a specified external Territory is included in this jurisdiction for the purposes of a specified provision of Chapter 7 (the applicable provision ). If the regulations do so: (a) the applicable provision applies in that external Territory in those circumstances; and (b) the associated provisions (see subsection (10)) in relation to the applicable provision apply in that external Territory in relation to the applicable provision as so applying. Meaning of associated provisions (10) For the purposes of this section, the associated provisions in relation to a provision of Chapter 7 are: (a) the provisions of Chapters 1, 9 (including the provisions of Division 2 of Part 9.4 that create offences and of Part 9.4B that allow for pecuniary penalty orders) and 10 as they apply or have effect in relation to, or for the purposes of, the provision; and (b) any regulations or other instruments (including any that create offences or allow for pecuniary penalty orders) made under this Act for the purposes of any of the provisions covered by paragraph (a); and (c) if regulations made for the purposes of subsection (9) have been made in relation to the provision—any other provisions of this Act, or any regulations or other instruments made under this Act (including any that create offences or allow for pecuniary penalty orders), specified in those regulations. 5A Application to the Crown (1) To avoid doubt, a reference in this section to the Crown in a particular right includes a reference to an instrumentality or agency (whether a body corporate or not) of the Crown in that right. (2) Chapter 5 (except Part 5.8) binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. (3) Chapters 6, 6A, 6B, 6C and 6D: (a) bind the Crown in right of the Commonwealth; and (b) do not bind the Crown in right of any State, of the Australian Capital Territory or of the Northern Territory. (4) A provision of Chapter 5D, 6CA or 7 only binds the Crown in a particular capacity in circumstances (if any) specified in the regulations. (5) Nothing in this Act makes the Crown in any right liable to a pecuniary penalty or to be prosecuted for an offence. 5B ASIC has general administration of this Act Subject to the ASIC Act, ASIC has the general administration of this Act. 5D Coverage of Part (1) This Part applies only to laws of a State or Territory that is in this jurisdiction. (2) This Part applies only to the following Corporations legislation: (a) this Act (including the regulations made under this Act); and (b) Part 3 of the ASIC Act; and (c) regulations made under the ASIC Act for the purposes of Part 3 of that Act. Note: This Part does not apply in relation to the trustee company provisions: see section 601RAE. (3) This Part does not apply to Part 3 of the ASIC Act, or regulations made under that Act for the purposes of Part 3 of that Act, to the extent to which they operate in relation to a contravention of Division 2 of Part 2 of that Act. 5E Concurrent operation intended (1) The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory. (2) Without limiting subsection (1), the Corporations legislation is not intended to exclude or limit the concurrent operation of a law of a State or Territory that: (a) imposes additional obligations or liabilities (whether criminal or civil) on: (i) a director or other officer of a company or other corporation; or (ii) a company or other body; or (b) confers additional powers on: (i) a director or other officer of a company or other corporation; or (ii) a company or other body; or (c) provides for the formation of a body corporate; or (d) imposes additional limits on the interests a person may hold or acquire in a company or other body; or (e) prevents a person from: (i) being a director of; or (ii) being involved in the management or control of; a company or other body; or (f) requires a company: (i) to have a constitution; or (ii) to have particular rules in its constitution. Note: Paragraph (a)—this includes imposing additional reporting obligations on a company or other body. (3) Without limiting subsection (2), a reference in that subsection to a law of a State or Territory imposing obligations or liabilities, or conferring powers, includes a reference to a law of a State or Territory imposing obligations or liabilities, or conferring powers, by reference to the State or Territory in which a company is taken to be registered. (4) This section does not apply to the law of the State or Territory if there is a direct inconsistency between the Corporations legislation and that law. Note: Section 5G prevents direct inconsistencies arising in some cases by limiting the operation of the Corporations legislation. (5) If: (a) an act or omission of a person is both an offence against the Corporations legislation and an offence under the law of a State or Territory; and (b) the person is convicted of either of those offences; the person is not liable to be convicted of the other of those offences. 5F Corporations legislation does not apply to matters declared by State or Territory law to be an excluded matter (1) Subsection (2) applies if a provision of a law of a State or Territory declares a matter to be an excluded matter for the purposes of this section in relation to: (a) the whole of the Corporations legislation; or (b) a specified provision of the Corporations legislation; or (c) the Corporations legislation other than a specified provision; or (d) the Corporations legislation otherwise than to a specified extent. (2) By force of this subsection: (a) none of the provisions of the Corporations legislation (other than this section) applies in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(a) applies; and (b) the specified provision of the Corporations legislation does not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(b) applies; and (c) the provisions of the Corporations legislation (other than this section and the specified provisions) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(c) applies; and (d) the provisions of the Corporations legislation (other than this section and otherwise than to the specified extent) do not apply in the State or Territory in relation to the matter if the declaration is one to which paragraph (1)(d) applies. (3) Subsection (2) does not apply to the declaration to the extent to which the regulations provide that that subsection does not apply to that declaration. (4) By force of this subsection, if: (a) the Corporations Law, ASC Law or ASIC Law of a State or Territory; or (b) a provision of that Law; did not apply to a matter immediately before this Act commenced because a provision of a law of the State or Territory provided that that Law, or that provision, did not apply to the matter, the Corporations legislation, or the provision of the Corporations legislation that corresponds to that provision of that Law, does not apply in the State or Territory to the matter until that law of the State or Territory is omitted or repealed. (5) Subsection (4) does not apply to the application of the provisions of the Corporations legislation to the matter to the extent to which the regulations provide that that subsection does not apply to the matter. (6) In this section: matter includes act, omission, body, person or thing. 5G Avoiding direct inconsistency arising between the Corporations legislation and State and Territory laws Section overrides other provisions of the Corporations legislation (1) This section has effect despite anything else in the Corporations legislation. Section does not deal with provisions capable of concurrent operation (2) This section does not apply to a provision of a law of a State or Territory that is capable of concurrent operation with the Corporations legislation. Note: This kind of provision is dealt with by section 5E. When this section applies to a provision of a State or Territory law (3) This section applies to the interaction between: (a) a provision of a law of a State or Territory (the State provision ); and (b) a provision of the Corporations legislation (the Commonwealth provision ); only if the State provision meets the conditions set out in the following table: Conditions to be met before section applies [operative] Item Kind of provision Conditions to be met 1 a pre ‑ commencement (commenced) provision (a) the State provision operated, immediately before this Act commenced, despite the provision of: (i) the Corporations Law of the State or Territory (as in force at that time); or (ii) the ASC or ASIC Law of the State or Territory (as in force at that time); that corresponds to the Commonwealth provision; and (b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by: (i) regulations made under this Act; or (ii) a law of the State or Territory. 2 a pre ‑ commencement (enacted) provision (a) the State provision would have operated, immediately before this Act commenced, despite the provision of: (i) the Corporations Law of the State or Territory (as in force at that time); or (ii) the ASC or ASIC Law of the State or Territory (as in force at that time); that corresponds to the Commonwealth provision if the State provision had commenced before the commencement of this Act; and (b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by: (i) regulations made under this Act; or (ii) a law of the State or Territory. 3 a post ‑ commencement provision the State provision is declared by a law of the State or Territory to be a Corporations legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision) 4 a provision that is materially amended on or after this Act commenced if the amendment was enacted before this Act commenced (a) the State provision as amended would have operated, immediately before this Act commenced, despite the provision of: (i) the Corporations Law of the State or Territory (as in force at that time); or (ii) the ASC or ASIC Law of the State or Territory (as in force at that time); that corresponds to the Commonwealth provision if the amendment had commenced before the commencement of this Act; and (b) the State provision is not declared to be one that this section does not apply to (either generally or specifically in relation to the Commonwealth provision) by: (i) regulations made under this Act; or (ii) a law of the State or Territory. 5 a provision that is materially amended on or after this Act commenced if the amendment is enacted on or after this Act commenced the State provision as amended is declared by a law of the State or Territory to be a Corporations legislation displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision) Note 1: Item 1—subsection (12) tells you when a provision is a pre ‑ commencement (commenced) provision. Note 2: Item 1 paragraph (a)—For example, a State or Territory provision enacted after the commencement of the Corporations Law might not have operated despite the Corporations Law if it was not expressly provided that the provision was to operate despite a specified provision, or despite any provision, of the Corporations Law (see, for example, section 5 of the Corporations (New South Wales) Act 1990). Note 3: Item 2—subsection (13) tells you when a provision is a pre ‑ commencement (enacted) provision. Note 4: Item 3—subsection (14) tells you when a provision is a post ‑ commencement provision. Note 5: Subsections (15) to (17) tell you when a provision is materially amended after commencement. State and Territory laws specifically authorising or requiring act or thing to be done (4) A provision of the Corporations legislation does not: (a) prohibit the doing of an act; or (b) impose a liability (whether civil or criminal) for doing an act; if a provision of a law of a State or Territory specifically authorises or requires the doing of that act. Instructions given to directors under State and Territory laws (5) If a provision of a law of a State or Territory specifically: (a) authorises a person to give instructions to the directors or other officers of a company or body; or (b) requires the directors of a company or body to: (i) comply with instructions given by a person; or (ii) have regard to matters communicated to the company or body by a person; or (c) provides that a company or body is subject to the control or direction of a person; a provision of the Corporations legislation does not: (d) prevent the person from giving an instruction to the directors or exercising control or direction over the company or body; or (e) without limiting subsection (4): (i) prohibit a director from complying with the instruction or direction; or (ii) impose a liability (whether civil or criminal) on a director for complying with the instruction or direction. The person is not taken to be a director of a company or body for the purposes of the Corporations legislation merely because the directors of the company or body are accustomed to act in accordance with the person’s instructions. Use of names authorised by State and Territory laws (6) The provisions of Part 2B.6 and Part 5B.3 of this Act do not: (a) prohibit a company or other body from using a name if the use of the name is expressly provided for, or authorised by, a provision of a law of a State or Territory; or (b) require a company or other body to use a word as part of its name if the company or body is expressly authorised not to use that word by a provision of a law of a State or Territory. Meetings held in accordance with requirements of State and Territory laws (7) The provisions of Chapter 2G of this Act do not apply to the calling or conduct of a meeting of a company to the extent to which the meeting is called or conducted in accordance with a provision of a law of a State or Territory. Any resolutions passed at the meeting are as valid as if the meeting had been called and conducted in accordance with this Act. External administration under State and Territory laws (8) The provisions of Chapter 5 of this Act do not apply to a scheme of arrangement, receivership, winding up or other external administration of a company to the extent to which the scheme, receivership, winding up or administration is carried out in accordance with a provision of a law of a State or Territory. State and Territory laws dealing with company constitutions (9) If a provision of a law of a State or Territory provides that a provision is included, or taken to be included, in a company’s constitution, the provision is included in the company’s constitution even though the procedures and other requirements of this Act are not complied with in relation to the provision. (10) If a provision of a law of a State or Territory provides that additional requirements must be met for an alteration of a company’s constitution to take effect, the alteration does not take effect unless those requirements are met. Other cases (11) A provision of the Corporations legislation does not operate in a State or Territory to the extent necessary to ensure that no inconsistency arises between: (a) the provision of the Corporations legislation; and (b) a provision of a law of the State or Territory that would, but for this subsection, be inconsistent with the provision of the Corporations legislation. Note 1: A provision of the State or Territory law is not covered by this subsection if one of the earlier subsections in this section applies to the provision: if one of those subsections applies there would be no potential inconsistency to be dealt with by this subsection. Note 2: The operation of the provision of the State or Territory law will be supported by section 5E to the extent to which it can operate concurrently with the provision of the Corporations legislation. Pre ‑ commencement (commenced) provision (12) A provision of a law of a State or Territory is a pre ‑ commencement (commenced) provision if it: (a) is enacted, and comes into force, before the commencement of this Act; and (b) is not a provision that has been materially amended after commencement (see subsections (15) to (17)). Pre ‑ commencement (enacted) provision (13) A provision of a law of a State or Territory is a pre ‑ commencement (enacted) provision if it: (a) is enacted before, but comes into force on or after, the commencement of this Act; and (b) is not a provision that has been materially amended after commencement (see subsections (15) to (17)). Post ‑ commencement provision (14) A provision of a law of a State or Territory is a post ‑ commencement provision if it: (a) is enacted, and comes into force, on or after the commencement of this Act; and (b) is not a provision that has been materially amended after commencement (see subsections (15) to (17)). Provision materially amended after commencement (15) A provision of a law of a State or Territory is materially amended after commencement if: (a) an amendment of the provision commences on or after the commencement of this Act; and (b) neither subsection (16) nor subsection (17) applies to the amendment. (16) A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if the amendment merely: (a) changes: (i) a reference to the Corporations Law or the ASC or ASIC Law, or the Corporations Law or the ASC or ASIC Law of a State or Territory, to a reference to the Corporations Act or the ASIC Act; or (ii) a reference to a provision of the Corporations Law or the ASC or ASIC Law, or the Corporations Law or ASC or ASIC Law of a State or Territory, to a reference to a provision of the Corporations Act or the ASIC Act; or (iii) a penalty for a contravention of a provision of a law of a State or Territory; or (iv) a reference to a particular person or body to a reference to another person or body; or (b) adds a condition that must be met before a right is conferred, an obligation imposed or a power conferred; or (c) adds criteria to be taken into account before a power is exercised; or (d) amends the provision in way declared by the regulations to not constitute a material amendment for the purposes of this subsection. (17) A provision of a law of a State or Territory is not materially amended after commencement under subsection (15) if: (a) the provision as amended would be inconsistent with a provision of the Corporations legislation but for this section; and (b) the amendment would not materially reduce the range of persons, acts and circumstances to which the provision of the Corporations legislation applies if this section applied to the provision of the State or Territory law as amended. 5H Registration of body as company on basis of State or Territory law (1) A body is taken to be registered under this Act as a company of a particular type under section 118 if a law of a State or Territory in this jurisdiction: (a) provides that the body is a deemed registration company for the purposes of this section; and (b) specifies: (i) the day on which the body is to be taken to be registered (the registration day ) or the manner in which that day is to be fixed; and (ii) the type of company the body is to be registered as under this Act; (iii) the company’s proposed name (unless the ACN is to be used in its name); and subsections (2) and (3) are satisfied. (2) A notice setting out the following details must be lodged before the registration day: (a) the name and address of each person who is to be a member on registration; (b) the present given and family name, all former given and family names and the date and place of birth of each person who is to be a director on registration; (c) the present given and family name, all former given and family names and the date and place of birth of each person who consents in writing to become a company secretary; (d) the address of each person who is to be a director or company secretary on registration; (e) the address of the company’s proposed registered office; (f) for a public company—the proposed opening hours of its registered office (if they are not the standard opening hours); (g) the address of the company’s proposed principal place of business (if it is not the address of the proposed registered office); (h) for a company limited by shares or an unlimited company—the following: (i) the number and class of shares each member agrees in writing to take up; (ii) the amount (if any) each member agrees in writing to pay for each share; (iii) if that amount is not to be paid in full on registration—the amount (if any) each member agrees in writing to be unpaid on each share; (i) for a public company that is limited by shares or is an unlimited company, if shares will be issued for non ‑ cash consideration—the prescribed particulars about the issue of the shares, unless the shares will be issued under a written contract and a copy of the contract is lodged with the application; (j) for a company limited by guarantee—the proposed amount of the guarantee that each member agrees to in writing. (3) If the company: (a) is to be a public company; and (b) is to have a constitution on registration; a copy of the constitution must be lodged before the registration day. (4) On the registration day, the body is taken: (a) to be registered as a company under this Act; and (b) to be registered in the State or Territory referred to in subsection (1). (5) The regulations may modify the operation of this Act to facilitate the registration of the company. (6) Without limiting subsection (5), the regulations may make provision in relation to: (a) the share capital of the company on registration; and (b) the issue of a certificate of registration on the basis of the company’s registration. 5I Regulations may modify operation of the Corporations legislation to deal with interaction between that legislation and State and Territory laws (1) The regulations may modify the operation of the Corporations legislation so that: (a) provisions of the Corporations legislation do not apply to a matter that is dealt with by a law of a State or Territory specified in the regulations; or (b) no inconsistency arises between the operation of a provision of the Corporations legislation and the operation of a provision of a State or Territory law specified in the regulations. (2) Without limiting subsection (1), regulations made for the purposes of that subsection may provide that the provision of the Corporations legislation: (a) does not apply to: (i) a person specified in the regulations; or (ii) a body specified in the regulations; or (iii) circumstances specified in the regulations; or (iv) a person or body specified in the regulations in the circumstances specified in the regulations; or (b) does not prohibit an act to the extent to which the prohibition would otherwise give rise to an inconsistency with the State or Territory law; or (c) does not require a person to do an act to the extent to which the requirement would otherwise give rise to an inconsistency with the State or Territory law; or (d) does not authorise a person to do an act to the extent to which the conferral of that authority on the person would otherwise give rise to an inconsistency with the State or Territory law; or (e) does not impose an obligation on a person to the extent to which complying with that obligation would require the person to not comply with an obligation imposed on the person under the State or Territory law; or (f) authorises a person to do something for the purposes of the Corporations legislation that the person: (i) is authorised to do under the State or Territory law; and (ii) would not otherwise be authorised to do under the Corporations legislation; or (g) will be taken to be satisfied if the State or Territory law is satisfied. (3) In this section: matter includes act, omission, body, person or thing. 5J Simplified outline of this Part This Part sets out the main interpretative provisions for this Act. Particular provisions of this Act may have different or additional interpretative provisions. Terms may be defined only for a particular purpose or have a different definition for different purposes. The Dictionary in section 9 includes a definition for each term that is defined in this Act, except: (a) terms that are defined for the purposes of a single section or part of a single section; and (b) terms that are defined for the purposes of Chapter 10 (transitional provisions), Schedule 2 (the Insolvency Practice Schedule) or Schedule 4 (transfer of financial institutions and friendly societies). To the extent that a term used in a provision is not defined in this Act, it has its ordinary meaning. 6 Effect of this Part (1) The provisions of this Part have effect for the purposes of this Act, except so far as the contrary intention appears in this Act. (2) This Part applies for the purposes of: (a) Part 5.7; and (b) Chapter 5 as applying by virtue of Part 5.7; and (c) Part 9.2; as if a reference in this Part to a person or to a body corporate included a reference to a Part 5.7 body. (4) Where, because of Part 11.2, provisions of this Act, as in force at a particular time, continue to apply: (a) in relation to someone or something; or (b) for particular purposes; then, for the purposes of those provisions as so applying: (c) this Part as in force at that time continues to have effect; and (d) this Part as in force at a later time does not have effect. 7 Identifying defined terms (1) The Dictionary in section 9 includes a definition for each term that is defined in this Act, except: (a) a term that is defined for the purposes of a single section or part of a single section; and (b) a term that is defined for the purposes of Chapter 10 (transitional provisions) or Schedule 4 (transfer of financial institutions and friendly societies); and (c) a term that is defined for the purposes of Schedule 2 (the Insolvency Practice Schedule). In some cases, the definition is a signpost to another provision or Act which defines the term. Note 1: An example for paragraph (a) is a definition that is expressed as being for the purposes of a section or subsection. Note 2: Schedule 2 also has its own Dictionary: see section 5 ‑ 5 of Schedule 2. Subject to Schedule 2, the Dictionary in section 9 also has effect for the purposes of Schedule 2. Note 3: This Part, including the Dictionary in section 9, also has effect for the purposes of the ASIC Act: see subsection 5(2) of that Act. (2) Within a definition, the defined term is identified by bold italics . Note: This Act also uses bold italics to “tag” a concept with a label for use as a narrative device. (3) To the extent that a term used in a provision is not defined in this Act, it has its ordinary meaning. Example 1: The definition of complaint in section 9 defines the term only in Part 7.8A. The term has it its ordinary meaning in all other Parts of this Act. Example 2: The definition of participant in section 9 defines the term only in relation to a clearing and settlement facility and in relation to a financial market. The term has it its ordinary meaning when used in relation to all other persons and things. 9 Dictionary In this Act: 2 ‑ part simple corporate bonds prospectus has the meaning given by section 713B. AASB means the Australian Accounting Standards Board. able to be traded on a market: (a) includes (but is not limited to) admitted to quotation on the market; and (b) for the purposes of Division 3 (insider trading prohibitions) of Part 7.10—has a meaning affected by section 1042E. ABN (short for “Australian Business Number”) has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999 . Aboriginal and Torres Strait Islander corporation means a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 . ACCC means the Australian Competition and Consumer Commission. accounting standard means: (a) an instrument in force under section 334; or (b) a provision of such an instrument as it so has effect. accumulation recovery day means 8 September 2022. ACN (short for “Australian Company Number”) is the number given by ASIC to a company on registration (see sections 118 and 601BD). ACNC means the Australian Charities and Not ‑ for ‑ profits Commission. acquire , in relation to a financial product, has the meaning given by section 761E. act includes thing. Note: See also doing an act or thing. add ‑ on insurance product has the same meaning as in section 12DO of the Australian Securities and Investments Commission Act 2001 . adequate , in relation to compensation arrangements or proposed compensation arrangements, has the meaning given by section 885B. administration , in relation to a company, has the meaning given by section 435C. administrator : (a) in relation to a body corporate but not in relation to a deed of company arrangement: (i) means an administrator of the body or entity appointed under Part 5.3A; and (iii) if 2 or more persons are appointed under that Part as administrators of the body or entity—has a meaning affected by paragraph 451A(2)(b); or (b) in relation to a deed of company arrangement: (i) means an administrator of the deed appointed under Part 5.3A; and (ii) if 2 or more persons are appointed under that Part as administrators of the deed—has a meaning affected by paragraph 451B(2)(b). admit to quotation : financial products are admitted to quotation on a market if the market operator has given unconditional permission for quotation of the financial products on the market. AFCA (short for the Australian Financial Complaints Authority) has the meaning given by section 761A. AFCA regulated superannuation scheme has the meaning given by section 761A. AFCA’s accumulated unpaid fees has the meaning given by subsection 1058B(4). AFCA scheme has the meaning given by section 761A. AFCA staff member has the meaning given by section 761A. AFCA’s unpaid fees , for a month, has the meaning given by subsection 1058B(2). affairs : (a) in relation to a body corporate (other than a CCIV)—has, in the provisions referred to in section 53, a meaning affected by that section; and (b) in relation to a body corporate that is a CCIV—has, in the provisions referred to in section 53AAA, a meaning affected by that section. agency means an agency, authority, body or person. AGM means an annual general meeting of a company that section 250N requires to be held. agreement , in Chapter 6 or 7, means a relevant agreement. amount includes a nil amount and zero. annual transparency report means a report required by section 332A. annual turnover , of a body corporate during a 12 ‑ month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12 ‑ month period, other than: (a) supplies made from any of those bodies corporate to any other of those bodies corporate; or (b) supplies that are input taxed; or (c) supplies that are not for consideration (and are not taxable supplies under section 72 ‑ 5 of the A New Tax System (Goods and Services Tax) Act 1999 ); or (d) supplies that are not made in connection with an enterprise that the body corporate carries on; or (e) supplies that are not connected with Australia. Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act. annuity policy has the meaning given by section 761A. APFRN : see Australian Passport Fund Registration Number . application facility , in relation to a CSF offer, has the meaning given by subsection 738ZA(3). apportionable claim , in Division 2A (proportionate liability for misleading and deceptive conduct) of Part 7.10, has the meaning given by subsection 1041L(1). appropriate , in relation to a target market determination, has the meaning given by subsection 994B(8A). appropriate officer , in Part 5.8 (offences), has the meaning given by subsection 589(5). approved code of conduct means a code of conduct approved by ASIC by legislative instrument under section 1101A, and includes a replacement code of conduct approved under that section. approved deposit fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993 . approved stock exchange has the same meaning as in the Income Tax Assessment Act 1997. APRA means the Australian Prudential Regulation Authority. ARBN (short for “Australian Registered Body Number”) is the number given by ASIC to a registrable body on registration under Part 5B.2. ARFN (short for Australian Registered Fund Number) is the number given by ASIC to a sub ‑ fund of a CCIV on registration of the sub ‑ fund (see subsection 1222S(3)). arrangement : (a) in Part 5.1 (arrangements and reconstructions)— arrangement includes a reorganisation of the share capital of a body corporate by the consolidation of shares of different classes, by the division of shares into shares of different classes, or by both of those methods; and (b) for the purposes of Chapter 7 (financial services and markets)— arrangement has the meaning given by subsection 761B(1). Note: In Part 7.1, see also subsection 761B(2). ARSN (short for “Australian Registered Scheme Number”) is the number given by ASIC to a registered scheme on registration (see section 601EB). ASIC means the Australian Securities and Investments Commission. ASIC Act means the Australian Securities and Investments Commission Act 2001 and includes the regulations made under that Act. ASIC database means so much of the national companies database kept by ASIC as consists of: (a) some or all of a register kept by ASIC under this Act; or (b) information set out in a document lodged under this Act; but does not include ASIC’s document imaging system. ASIC delegate has the same meaning as in the ASIC Act. asset has the meaning given by section 9AB. asset ‑ based fee has the meaning given by section 964F. associate has the meaning given by sections 10 to 17. associated entity has the meaning given by section 50AAA. AUASB means the Auditing and Assurance Standards Board. audit means an audit conducted for the purposes of this Act and includes a review of a financial report for a financial year or a half ‑ year conducted for the purposes of this Act. audit activity : see the definition of engage in audit activity . audit company means a company that consents to be appointed, or is appointed, as auditor of a company, registered scheme or registrable superannuation entity. audit ‑ critical employee , in relation to a company, or the responsible entity for a registered scheme, or a registrable superannuation entity, that is the audited body for an audit, means a person who: (a) is an employee of the company, of the responsible entity for the registered scheme or of the RSE licensee for the registrable superannuation entity; and (b) is able, because of the position in which the person is employed, to exercise significant influence over: (i) a material aspect of the contents of the financial report being audited; or (ii) the conduct or efficacy of the audit. audited body , in relation to an audit of a company, registered scheme or registrable superannuation entity, means the company, registered scheme or registrable superannuation entity in relation to which the audit is, or is to be, conducted. audit firm means a firm that consents to be appointed, or is appointed, as auditor of a company, registered scheme or registrable superannuation entity. auditing standard means: (a) a standard in force under section 336; or (b) a provision of such a standard as it so has effect. auditor for the purposes of the RSE licensee law means an auditor appointed in fulfilment of a requirement imposed by a provision of the RSE licensee law. auditor independence requirements of this Act means the requirements of Divisions 3, 4 and 5 of Part 2M.4. auditor’s report means: (a) an auditor’s report on an annual financial report required by section 308; or (b) an auditor’s report on a half ‑ year financial report required by section 309; or (c) an auditor’s report on an annual sustainability report required by section 301A. Australia means the Commonwealth of Australia and, when used in a geographical sense, includes each Territory. Note: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this section. Australian ADI means: (a) an ADI (authorised deposit ‑ taking institution) within the meaning of the Banking Act 1959 ; and (b) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution. Australian business law means a law of the Commonwealth, or of a State or Territory, that is a law that regulates, or relates to the regulation of, business or persons engaged in business. Australian carbon credit unit has the same meaning as in the Carbon Credits (Carbon Farming Initiative) Act 2011 . Australian court means a federal court or a court of a State or Territory. Australian CS facility licence means a licence under section 824B that authorises a person to operate a clearing and settlement facility. Australian derivative trade repository licence means a licence under section 905C that authorises a body corporate to operate a derivative trade repository. Australian financial services licence means a licence under section 913B that authorises a person who carries on a financial services business to provide financial services. Australian law means a law of the Commonwealth or of a State or Territory. Australian market licence means a licence under section 795B that authorises a person to operate a financial market. Australian member : a person is an Australian member of a notified foreign passport fund if: (a) the person holds an interest in the fund that was acquired in this jurisdiction; or (b) the person is ordinarily resident in this jurisdiction and holds an interest in the fund. Australian passport fund means: (a) a registered scheme that is registered as a passport fund under Part 8A.3; or (b) a sub ‑ fund of a retail CCIV that is registered as a passport fund under Part 8A.3. Australian Passport Fund Registration Number means the number assigned to an Australian passport fund under paragraph 1212A(2)(a). authorised audit company means a company registered under Part 9.2A. authorised clearing and settlement facility has the meaning given by section 761A. authorised representative of a financial services licensee means a person authorised in accordance with section 916A or 916B to provide a financial service or financial services on behalf of the licensee. bank or banker includes, but is not limited to, a body corporate that is an ADI (authorised deposit ‑ taking institution) for the purposes of the Banking Act 1959 . banking corporation means a body corporate that carries on, as its sole or principal business, the business of banking (other than State banking not extending beyond the limits of the State concerned). banning order means an order made under subsection 920A(1). base prospectus has the meaning given by subsection 713C(1). base salary has the meaning specified in regulations made for the purposes of this definition. basic banking product has the meaning given by section 961F. basic deposit product means a deposit product that is a facility in relation to which the following conditions are satisfied: (a) the terms applicable to the facility (the governing terms ) do not permit the amount from time to time standing to the credit of the facility to be reduced otherwise than in consequence of one or more of the following: (i) a withdrawal, transfer or debit on the instruction of, or by authority of, the depositor, not being on account of entry fees, exit fees or charges for the management of the funds (but this does not exclude charges for the maintenance of the facility itself); (ii) a payment of charges or duties on deposits into, or withdrawals from, the facility that are payable under a law of the Commonwealth or of a State or Territory; (iii) a payment that a law of the Commonwealth, or of a State or Territory, requires to be made out of the facility; (iv) a payment that an order of a court requires to be made out of the facility; (v) the exercise of a right to combine accounts; (vi) the correction of an error; (vii) any other circumstances specified in regulations made for the purposes of this subparagraph; and (b) any return to be generated for the depositor on the amount from time to time standing to the credit of the facility is an amount that is set out in, or that is calculated by reference to a rate or rates that are set out in, the governing terms; and (c) either: (i) there is no minimum period before which funds cannot be withdrawn or transferred from the facility without a reduction in the return generated for the depositor; or (ii) if there is such a period, it expires on or before the end of the period of 5 years starting on the day on which funds were first deposited in the facility; and (d) unless subparagraph (c)(ii) applies and the period referred to in that subparagraph expires on or before the end of the period of 2 years starting on the day on which funds were first deposited in the facility—funds are able to be withdrawn or transferred from the facility on the instruction of, or by authority of, the depositor: (i) without any prior notice to the ADI that makes the facility available; or (ii) if the ADI that makes the facility available is included in a class of ADIs specified in regulations made for the purposes of this subparagraph—subject to a prior notice requirement that does not exceed the period specified in those regulations in relation to that class of ADIs; whether or not the withdrawal or transfer will attract a reduction in the return generated for the depositor as mentioned in subparagraph (c)(i); and (e) any other conditions specified in regulations made for the purposes of this paragraph. begin , in relation to a winding up, has the meaning given by Division 1A of Part 5.6. benchmark administrator licence means a licence granted under section 908BC. benchmark administrator licensee means a person who holds a benchmark administrator licence. benefit : (a) means any benefit, whether by way of payment of cash or otherwise; and (b) when used in Division 2 of Part 2D.2 (sections 200 to 200J)—has the meaning given by section 200AB. benefit derived and detriment avoided : (a) because of an offence—has the meaning given by section 1311D; and (b) because of a contravention of a civil penalty provision—has the meaning given by section 1317GAD. benefit ratio has the meaning given by subsection 963B(3A). benefit ratio requirements has the meaning given by subsection 963BA(1). bid class of securities for a takeover bid is the class of securities to which the securities being bid for belong. bidder for a takeover bid means the person who makes or proposes to make, or each of the people who make or propose to make, the offers under the bid (whether personally or by an agent or nominee). Note: A person who announces a bid on behalf of another person is not making the bid, the other person is making the bid. bidder’s statement means a bidder’s statement under sections 636 and 637 as supplemented. bid period : (a) for an off ‑ market bid—starts when the bidder’s statement is given to the target and ends: (i) 1 month later if no offers are made under the bid; or (ii) at the end of the offer period; and (b) for a market bid—starts when the bid is announced to the relevant financial market and ends at the end of the offer period. binder has the meaning given by section 761A. Board , when used in Part 9.2, means the Companies Auditors Disciplinary Board. board limit means a limit described in section 201N. board limit resolution means a resolution described in paragraph 201P(1)(a). body means a body corporate or an unincorporated body and includes, for example, a society or association. body corporate : (a) includes a body corporate that is being wound up or has been dissolved; and (b) in this Chapter (except section 66A) and section 206E includes an unincorporated registrable body; and (c) for the purposes of Chapter 5 and Part 9.2—has a meaning affected by subsection 6(2) (about Part 5.7 bodies). body corporate licensee has the meaning given by section 910A. body regulated by APRA has the meaning given by subsection 3(2) of the Australian Prudential Regulation Authority Act 1998 . books includes: (a) a register; and (b) any other record of information; and (c) financial reports or financial records, however compiled, recorded or stored; and (ca) sustainability reports or sustainability records, however compiled, recorded or stored; and (d) a document; but does not include an index or recording made under Subdivision D of Division 5 of Part 6.5. borrow includes obtain credit and: (a) in relation to a debenture— borrower means the body that is or will be liable to repay money under the debenture; and (b) in Part 7.7A (best interests obligations and remuneration)— borrowed has the meaning given by s ection 964G . business affairs , in relation to an entity, has a meaning affected by sections 53AA, 53AB, 53AC and 53AD. business day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned. Business Names Register means the Register established and maintained under section 22 of the Business Names Registration Act 2011. buy ‑ back by a company means the acquisition by the company of shares in itself. buy ‑ back agreement by a company means an agreement by the company to buy back its own shares (whether the agreement is conditional or not). cancellation time , in relation to a registration prohibition order, has the meaning given by subparagraph 921L(1)(c)(i). capital reserve establishment contribution has the same meaning as in the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023 . carry on , in relation to a business, has a meaning affected by Division 3. Cash Settlement Fact Sheet means a Cash Settlement Fact Sheet required by section 948C to be given in accordance with Division 3A of Part 7.7. CCIV : see corporate collective investment vehicle . certificate of transfer has the meaning given by subsection 601WBG(1). certified means: (a) in relation to a copy of, or extract from, a document—certified by a statement in writing to be a true copy of, or extract from, the document; or (b) in relation to a translation of a document—certified by a statement in writing to be a correct translation of the document into English. CGS depository interest has the meaning given by section 761A. CGS depository interest information website has the meaning given by subsection 1020AH(1). Chapter 5 body corporate means a body corporate: (a) that is being wound up; or (aa) that is a CCIV of which one or more sub ‑ funds is being wound up; or (b) in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; or (c) that is under administration; or (d) that has executed a deed of company arrangement that has not yet terminated; or (da) that is under restructuring; or (db) that has made a restructuring plan that has not yet terminated; or (e) that has entered into a compromise or arrangement with another person the administration of which has not been concluded. charge means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise. chief executive function has the meaning given by section 295A . chief financial officer function has the meaning given by section 295A . child : without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975 . choice product has the same meaning as in the Superannuation Industry (Supervision) Act 1993 . circulating security interest means a security interest that is: (a) a PPSA security interest, if: (i) the security interest has attached to a circulating asset within the meaning of the Personal Property Securities Act 2009 ; and (ii) the grantor (within the meaning of that Act) has title to the asset; or (b) a floating charge. Note: Security interests are either PPSA security interests, or charges, liens or pledges: see security interest . civil matter means a matter other than a criminal matter. civil penalty order means any of the following: (a) a declaration of contravention under section 1317E; (b) a pecuniary penalty order under section 1317G; (baa) a relinquishment order under section 1317GAB; (ba) a refund order under section 1317GA or 1317GB; (c) a compensation order under section 961M, 1317H, 1317HA, 1317HB, 1317HC or 1317HE; (d) an order under section 206C disqualifying a person from managing corporations. civil penalty provision has the meaning given in subsection 1317E(3). claimant intermediary has the meaning given by section 761CAA. claims handling and settling service has the meaning given by section 766G. class has: (a) in relation to shares in a CCIV—a meaning affected by sections 57 and 1230A; and (b) in relation to shares (other than shares in a CCIV) or interests in a managed investment scheme—a meaning affected by section 57; and (c) when used in relation to securities for the purposes of Chapter 6, 6A or 6C—a meaning affected by subsection 605(2); and (d) in relation to financial products or financial services—has a meaning affected by regulations made for the purposes of section 761CA. class of product advice has the meaning given by section 910A. clawback requirements has the meaning given by subsection 963BA(3). clearing and settlement arrangements for transactions effected through a financial market has the meaning given by section 790A. clearing and settlement facility : (a) has the meaning given by section 768A; and (b) in relation to an Australian CS facility licence—has a meaning affected by section 824E. clearing requirements , in relation to derivative transactions, has the meaning given by subsection 901A(7). client : (a) for an issue situation—has the meaning given by paragraph 1012B (2)(c); and (b) for a recommendation situation—has the meaning given by paragraph 1012A(2)(c); and (c) for a sale situation—has the meaning given by paragraph 1012C(2)(c); and (d) of a trustee company—has the m