Before the ACA publishes a notice inviting applications for an auction it must set:
(a) the amount of the entry fee; and
(b) the amount of the eligibility payment required for each unit of eligibility; and
(c) the financial security amount for the auction.
2.2 Publication of notice by ACA
(1) Before holding an auction, the ACA must publish a notice in a newspaper circulating nationally in Australia:
(a) describing the lots to be auctioned; and
(b) giving a brief description of the way the auction will be conducted; and
(c) inviting people to apply to the ACA to take part in the auction; and
(d) stating the date and time by which applications and the entry fee must be received by the ACA (the application closing date); and
(e) stating that lots will be auctioned in accordance with this determination; and
(f) stating that further information (the Applicant Information Package) can be obtained from the ACA at the address given in the notice.
(2) If a matter mentioned in the notice changes, the ACA must publish another notice giving details of the change in a newspaper circulating nationally in Australia.
(3) The ACA may publish other information about auctions and may publish that information, and the notices mentioned in subsections (1) and (2), in other ways.
2.3 Applicant Information Package
(1) The Applicant Information Package must contain the following information and documents:
(a) a guide to the auction process;
(b) this determination;
(c) the application form, with instructions for completing and lodging the form;
(d) the Deed of Financial Security;
(e) information about the performance payment as an alternative to providing a Deed of Financial Security, if required;
(f) the Deed of Acknowledgment;
(g) the amount of the entry fee for the auction set by the ACA under paragraph 2.1 (a);
(h) the amount of the eligibility payment required for each unit of eligibility set by the ACA under paragraph 2.1 (b);
(i) the financial security amount set by the ACA under paragraph 2.1(c);
(j) the application closing date and time for making applications;
(k) the eligibility payment date and time for lodging eligibility payments, and performance payments or Deeds of Financial Security;
(l) the address of the auction centre.
(2) The Applicant Information Package may also contain other information about the auction.
2.4 Applications
(1) A person who wants to obtain an SL under this determination must apply to the ACA for registration and pay the entry fee.
(2) The person must give the ACA the following documents:
(a) a completed application form; and
(b) a completed Deed of Acknowledgment.
(3) The entry fee must be paid in accordance with section 1.9.
Note: By section 1.9, the entry fee may be paid by bank cheque or bank transfer. If paid by bank transfer, the applicant must give the ACA evidence that the payment has been made. If the payment is not in the ACA’s account within 5 working days of the application date, the application ceases to have effect.
2.5 Lodging of applications
(1) The application must be lodged with the ACA, at the auction centre, by the closing time on the advertised application closing date.
(2) If the application is lodged by facsimile, the originals of the documents lodged by facsimile must be received by the ACA no later than 2 working days after the advertised closing date. If they are not, the person’s application ceases to have effect and the person is not entitled to take part in the auction or be allocated a lot.
(3) As soon as practicable after receiving the application documents, the ACA must confirm receipt by facsimile or by letter (if the ACA does not know the applicant’s facsimile number) noting particulars of the applicant’s:
(a) name; and
(b) address; and
(c) ACN or ARBN in accordance with the Corporations Act 2001; or ABN in accordance with the Corporations Regulations 2001; and
(d) initial eligibility.
2.5A Initial eligibility
(1) The ACA must ensure that the application form provides an initial eligibility of 1 unit.
(2) An applicant must not change its initial eligibility.
2.6 Eligibility payment
(1) An applicant must, by the advertised time on the advertised eligibility payment date:
(a) pay the ACA an eligibility payment, worked out in accordance with section 2.7; and
(b) if required under section 2.8, either:
(i) give the ACA a completed Deed of Financial Security; or
(ii) pay the ACA a performance payment.
(2) The eligibility payment and performance payment must be paid in accordance with section 1.9.
Note: By section 1.9, the eligibility payment and performance payment may be paid by bank cheque or bank transfer. If paid by bank transfer, the applicant must give the ACA evidence that the payment has been made. If the payment is not in the ACA’s account within 5 working days of the closing date, the application ceases to have effect.
(3) Acceptance of a payment is not acceptance of the application documents.
2.7 Calculating the eligibility payment
The amount of eligibility payment payable by an applicant is the amount in dollars worked out by multiplying the amount of the applicant’s initial eligibility (namely 1 unit), by the amount set by the ACA under paragraph 2.1 (b).
2.8 Deed of Financial Security or performance payment
(1) A person who wishes to be registered as an applicant must give the ACA a Deed of Financial Security made by a person who complies with subsection (4) or a performance payment unless:
(a) the applicant satisfies the ACA that it is an authority of the Commonwealth, a State or a Territory; or
(b) the applicant satisfies the ACA that it is a subsidiary, within the meaning of the Corporations Act 2001, of an authority of the Commonwealth, a State or a Territory; or
(c) the ACA decides, under subsection (2), that the applicant need not give the ACA a Deed of Financial Security or performance payment.
(2) If a company satisfies the ACA that it does not carry on business for profit, the ACA:
(a) may decide that the company need not give the ACA a Deed of Financial Security or performance payment; and
(b) must notify the company in writing of the decision as soon as practicable after making the decision.
(3) The amount payable to the ACA under the Deed of Financial Security or the performance payment must be at least an amount in dollars calculated by multiplying the initial eligibility (namely 1 unit) by the financial security amount set by the ACA under paragraph 2.1(c).
(4) A person who makes a Deed of Financial Security must be:
(a) a bank licensed to operate in Australia; or
(b) a person authorised to carry on business in Australia as an insurer under the Insurance Act 1973.
(5) For this section, a company makes a Deed of Financial Security by executing the Deed in accordance with section 127 of the Corporations Act 2001.
2.9 Lodging of power of attorney
If a Deed of Financial Security is made under a power of attorney for a company, the applicant must give the ACA a copy of the power of attorney with the Deed.
2.10 Failure to comply with requirements concerning original documents and Deed of Financial Security
(1) This section applies if:
(a) the applicant does not lodge the originals of documents lodged by facsimile in accordance with subsection 2.5(2); or
(b) the ACA is not satisfied that the person who made the Deed is a person who complies with subsection 2.8 (4).
(2) The applicant’s registration is of no effect.
(3) The applicant is excluded from taking part (or any further part) in the price-based allocation system under this determination.
(4) The applicant’s eligibility payment and all repayable performance payments (if any) are refundable.
(5) The applicant’s entry fee is not refundable.
2.11 Performance payments
(1) This section applies if a repayable performance payment is made by or in relation to an applicant.
(2) The ACA must apply repayable performance payment moneys lodged with or paid to the ACA in the timely discharge of the applicant’s financial obligations to the ACA under this determination.
(3) If an applicant defaults in making payment for a successful bid, the repayable performance payment is forfeited to the ACA to meet any undischarged liability of the applicant in accordance with section 5.4.
(4) The ACA must account to the applicant for the repayable performance payment moneys after completion of the auction, as set out in Part 5.
2.12 Forfeiture of repayable performance payments
(1) To meet any undischarged liability owed by an applicant to the ACA for the matters mentioned in subsection (2), repayable performance payments will be forfeited to the ACA.
(2) For subsection (1), the matters include:
(a) any act or omission by the applicant, its officers, employees, agents, volunteers, subcontractors or associates in connection with the applicant’s participation in an allocation process conducted under this determination; or
(b) any breach or default by the applicant of its obligations or warranties under the Deed of Acknowledgment, this determination, or both.
2.12A Withdrawal of applicant
(1) An applicant may withdraw from the allocation process at any time before the auction starts, by written notice given to the ACA.
(2) An applicant who withdraws (a withdrawn applicant) is excluded from taking part in:
(a) the auction; and
(b) the allocation of a lot in any other way as part of the current allocation process (for example, for a predetermined price under Part 3).
(3) The entry fee paid by a withdrawn applicant is not refundable.
(4) The eligibility payment and all repayable performance payments (if any) of a withdrawn applicant are refundable.
2.13 Register of applicants
(1) The ACA must maintain a register of applicants.
(2) The register may be in electronic form.
(3) For each applicant, the register must contain details of:
(a) the name and address of the applicant; and
(b) the applicant’s telephone and facsimile numbers; and
(c) the applicant’s eligibility; and
(d) the applicant’s BIN; and
(e) ACN or ARBN in accordance with the Corporations Act 2001, or ABN in accordance with the Corporations Regulations 2001.
(4) The register may also contain any other information that the ACA considers necessary for the running of the auction.
(5) The ACA must make the changes to the register that the ACA considers necessary or convenient as soon as practicable after:
(a) an applicant tells the ACA of any change of name, address, or telephone or facsimile numbers; or
(b) the ACA becomes aware that any information on the register is not correct.
(6) Except as authorised by this determination or as otherwise authorised by law, the ACA must ensure that any details about applicants are not disclosed until the allocation of lots is made.
2.14 Registration of applicants
(1) The ACA must register an applicant only if:
(a) the applicant has:
(i) lodged completed application documents; and
(ii) paid the entry fee in accordance with section 1.9; and
(iii) paid the eligibility payment in accordance with section 1.9, and
(iv) lodged a Deed of Financial Security or paid a performance payment, in accordance with section 1.9; and
(b) if a Deed of Financial Security is required — the ACA is satisfied that the person who made the Deed is a person who complies with subsection 2.8 (4).
(2) The ACA must assign to each registered applicant:
(a) a BIN; and
(b) a password and encryption keys linked to that BIN to use with the auction computer system; and
(c) a set of transaction code keys to be used if the applicant needs to bid by telephone in an emergency.
(3) At least 5 working days before the start of the auction, the ACA must, by writing, tell each registered applicant:
(a) that the applicant has been registered; and
(b) the applicant’s initial eligibility (namely 1 unit), as shown on the register; and
(c) the starting date and time of the first round of the auction; and
(d) the ACA’s telephone and facsimile numbers available for use by registered applicants; and
(e) the applicant’s BIN, password and transaction code keys.
(4) At least 5 working days before the start of the auction, the ACA must give each registered applicant the relevant encryption keys.
2.15 Publication of bidder identification numbers
(1) After the closing date but at least 5 working days before the start of the auction, the ACA must publish a notice in a newspaper circulating in Australia setting out:
(a) for each registered applicant:
(i) its company name; and
(ii) its registered address; and
(iii) its ACN or ARBN in accordance with the Corporations Act 2001 or its ABN in accordance with the Corporations Regulations 2001; and
(b) the initial eligibility of all registered applicants; and
(c) the BINs of all registered applicants.
(2) After the notice has been published, the ACA may give out the information in the notice in other ways.
2.16 Preparation for bidding
(1) A registered applicant who bids must use software made available by the ACA.
Note See section 4.8 for ways of taking part in the auction.
(2) The ACA will give each applicant:
(a) assistance in installing the software for the auction computer system; and
(b) training in using the software.
(3) However, subsection (2) does not apply to an applicant who proposes to bid from outside Australia.
Note The ACA will make an auction guide available to each registered applicant to help the applicant take part in the auction: see paragraph 2.3 (1) (a).
Division 2 Things the Auction Manager Must Do Before the Auction
2.17 Starting bids and increments
After the application closing date, the ACA must set the following 3 amounts:
(a) the starting bid for each lot;
(b) the increment of price per lot rating;
(c) the increment of percentage of high bid.
Note The Chair may vary the starting bid, and the auction manager may vary the other amounts set under this section: see sections 4.13 and 4.13A.
2.18 Stages of auction, eligibility percentage, waivers and rounds
After the application closing date, the auction manager must:
(a) fix the number of stages for the auction; and
(b) fix a percentage of eligibility as the percentage to be applied in calculating the activity target during each stage of the auction; and
(c) fix the number of waivers for each registered applicant, being the same number for all applicants; and
(d) set the amount of time allocated for the bidding period for each round of the auction; and
(e) set the amount of time allocated for the results period of each round of the auction; and
(f) set the schedule for the first and second rounds, based on the amounts referred to in paragraphs (d) and (e), taking into account the effect of section 4.4; and
(g) tell all registered applicants of these matters.