11BOperational control—nominated person

#### 11B Operational control—nominated person Eligible nomination test (1) For the purposes of this section, a facility passes the eligible nomination test at a particular time if: (a) 2 or more persons (the relevant persons) could satisfy paragraph 11(1)(a) in relation to the facility at that time; and (b) no particular person has the greatest authority to introduce and implement the policies mentioned in subparagraphs 11(1)(a)(i) and (iii) in relation to the facility at that time; and (c) no declaration under section 55 or 55A applies in relation to the facility at that time; and (d) that time occurs in a designated financial year. Nomination (2) 2 or more persons may jointly nominate one of them to be the nominated person in relation to a facility throughout the period: (a) beginning at the start of the day specified in the nomination as the day on which the nomination is to come into force (the start day); and (b) ending at a later time specified in the nomination. (3) The nomination must: (a) be in writing; and (b) be in a form approved by the Regulator; and (c) be accompanied by such information as is specified in the regulations; and (d) be accompanied by such documents (if any) as are specified in the regulations. (4) If: (a) any of those persons is a foreign person; and (b) any of those persons is not a foreign person; a foreign person cannot be nominated. (5) The nomination has no effect unless, at the beginning of the start day: (a) the facility passes the eligible nomination test; and (b) the nominators are the relevant persons. (6) The start day may occur before the nomination is made. (8) If the start day occurs during a particular designated financial year, the nomination must not be made after 31 August next following the designated financial year. (9) The start day may be later than the day on which the nomination is made, so long as: (a) the start day occurs in the same financial year as the day on which the nomination is made; or (b) the start day occurs in the financial year next following the financial year in which the nomination is made. Cancellation of nomination (10) The Regulator may cancel a nomination that relates to a facility if the Regulator is satisfied that: (a) the facility passes the eligible nomination test, but the nominated person is not a relevant person; or (b) the facility does not pass the eligible nomination test; or (c) the nominated person has become a Chapter 5 body corporate; or (d) the nominated person has become an insolvent under administration; or (e) the nominated person has an unsatisfactory compliance record. > Note: For unsatisfactory compliance record, see section 11D. (11) A cancellation of a nomination takes effect on the day specified in the notice of cancellation as the day on which the cancellation is to take effect. (12) If the Regulator cancels a nomination, the Regulator must give written notice of the cancellation to each nominator. Replacement nomination (13) If: (a) a nomination (the original nomination) is in force in relation to a facility; and (b) another nomination is made in relation to the facility; the other nomination has no effect unless it is expressed to replace the original nomination. Revocation of nomination (14) If: (a) a nomination (the original nomination) is in force in relation to a facility; and (b) another nomination is made in relation to the facility; and (c) the other nomination is expressed to replace the original nomination; the original nomination is taken to have been revoked at the beginning of the start day for the other nomination. Operational control—nomination made (15) If: (a) a nomination is in force in relation to a facility throughout a particular period; and (b) the facility passes the eligible nomination test at all times during the period; the nominated person is taken, for the purposes of this Act, to have operational control of the facility throughout the period. Operational control—nomination not made (17) If: (a) no nomination is in force in relation to a facility at any time during a particular period; and (b) the facility passes the eligible nomination test at all times during the period; each of the relevant persons is taken, for the purposes of this Act, to have operational control of the facility throughout the period. Notification (20) If: (a) a nomination is in force in relation to a facility; and (b) the facility ceases to pass the eligible nomination test; each nominator must, within 30 days after the cessation, notify the cessation to the Regulator unless the cessation has previously been notified to the Regulator. Civil penalty: 400 penalty units. Exceptions (21) A person is not required to comply with subsection (20) if the question of who has operational control of the facility is not relevant (whether directly or indirectly) to a requirement under this Act. (22) A person is not required to comply with subsection (20) if the facility ceases to pass the eligible nomination test because of the making of a declaration under section 55 or 55A. Definition (23) In this section: > nomination means a nomination under subsection (2).