601GCBNotice of modification etc. of constitution for AMIT implementation

Part 3—Declaration

6 Changing the scheme’s constitution to meet AMIT requirements

Chapter 5C of the Act applies to a responsible entity as if Part 5C.3 were modified or varied as follows:

(a) in paragraph 601GC(1)(b), omit “rights.”, substitute “rights; or”;

(b) after paragraph 601GC(1)(b) insert:

“(c) by the responsible entity in accordance with section 601GCA.”;

(c) after section 601GC insert:

“601GCA Changing the constitution to meet AMIT requirements

(1) Subject to subsection (3), a responsible entity of a registered scheme may modify the constitution of the scheme to the extent that the responsible entity reasonably considers that the modification is necessary for or incidental to the scheme being able to be operated in a manner permitted by the ITA Act as an attribution managed investment trust with the responsible entity as its trustee. (2) Without limitation, modifications that may be made under subsection (1) include modifications which have the effect of: (a) enabling the responsible entity to make a choice for the purposes of subparagraph 276-10(1)(e)(i) or
paragraph 276-20(1)(d) of the ITA Act; or (b) where applicable, enabling the responsible entity to treat each separate class of interests in the scheme as a separate attribution managed investment trust; or (c) ensuring that the responsible entity is indemnified out of scheme property for any liability that: (i) is incurred by the responsible entity in relation to the proper performance of its duties; and (ii) either: (A) is an attribution income tax liability of the responsible entity; or (B) results from a member or former member making a claim against the responsible entity in relation to an attribution income tax liability of the member or former member that results from an attribution by the responsible entity under section 276-210 of the ITA Act to the interests held by the member or former member. (3) The responsible entity may modify the constitution under subsection (1) where: (a) in the case where all members of the scheme acquired their interests in the scheme as wholesale clients—the responsible entity has taken reasonable steps to consult with each member of the scheme about the proposed modification of the constitution before making it; or (b) in any case—the responsible entity: (i) has published a notice that complies with subsection (4) on its website: (A) for a period (the relevant period) of not less than 7 days; and (B) in a way that it is likely to come to the attention of a person looking for information about the scheme on the website; and (ii) has not received requests from members with at least 5% of the votes that may be cast on the resolution to call and arrange to hold a meeting as specified in the notice. (4) A notice complies with this subsection if it: (a) sets out a summary of the reason for, and the effect of, the proposed modification of the constitution; and (b) states that the responsible entity will modify the constitution as proposed unless it receives requests to call and arrange to hold a meeting of the scheme’s members to consider and vote on a special resolution to modify the constitution as proposed: (i) from members with at least 5% of the votes that may be cast on the resolution; and (ii) by a specified date that is the last day of the relevant period; and (c) states that a request referred to in paragraph (b) must be made in writing and may be sent to a specified email address of the responsible entity; and (d) is worded and presented in a clear, concise and effective manner. (5) The responsible entity may repeal and replace the constitution instead of modifying it where: (a) the replacement constitution has the effect that the constitution would have had if it had instead been modified in accordance with subsection (1); and (b) subsection (3) had been satisfied as if references in subsections (3) and (4) to modifying the constitution included references to repealing and replacing it. (6) The responsible entity may modify or repeal and replace the constitution under subsections (1) and (5) even if the constitution includes provisions to the effect that it may only be modified or repealed and replaced in accordance with paragraphs 601GC(1)(a) or (b) or provisions to the effect of those paragraphs. (7) For the purposes of this section: