(1) In this Act, unless the contrary intention appears:
accounting records includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up.
approved securities organisation means a body corporate that is approved by the Ministerial Council under section 38A.
arbitrage transaction means a purchase or sale of securities effected in the ordinary course of trading on a stock market together with an offsetting sale or purchase of those securities effected at the same time, or at as nearly the same time as practicable, in the ordinary course of trading on another stock market for the purpose of obtaining a profit from the difference between the prices of those securities in the 2 stock markets.
articles means articles of association.
Australian company law means the Companies Act 1981 or the provisions of:
(a) a previous law of the Territory; or
(b) a law, or a previous law, of a State or of another Territory;
that correspond with that Act.
banker’s books means:
(a) books of a banking corporation, including any documents used in the ordinary business of a banking corporation;
(b) cheques, orders for the payment of money, bills of exchange and promissory notes in the possession or under the control of a banking corporation; and
(c) securities or documents of title to securities in the possession or under the control of a banking corporation whether by way of pledge or otherwise.
banking corporation means:
(a) a bank as defined in section 5 of the Banking Act 1959; or
(c) a bank constituted under a law of a State or Territory.
banning order means an order made under section 62G and in force under Division 5 of Part IV.
books includes any register or other record of information and any accounts or accounting records, however compiled, recorded or stored, and also includes any document.
business rules, in relation to a body corporate, means:
(a) in the case of a body corporate that maintains or provides, or proposes to maintain or provide, a stock market—the provisions of the constituent documents of the body corporate and any other rules, regulations or by‑laws made by the body corporate, other than rules, regulations or by‑laws that are listing rules of the body corporate; and
(b) in any other case—the provisions of the constituent documents of the body corporate and any other rules, regulations or by‑laws made by the body corporate.
committee, in relation to a body corporate, means the committee of management, board of directors, council or other governing authority of the body corporate.
condition, in relation to a licence, means a condition or restriction to which the licence is subject, or will be subject, as the case requires.
Corporation means a body corporate in relation to which a nomination as the National Securities Exchanges Guarantee Corporation is in force under subsection 122BA(1).
dealer means:
(a) a person who carries on a securities business; or
(b) 2 or more persons who together carry on a securities business.
dealers licence means a dealers licence granted under Part IV.
dealing, in relation to securities, means (whether as principal or agent) acquiring, disposing of, subscribing for or underwriting the securities, or making or offering to make, or inducing or attempting to induce a person to make or to offer to make, an agreement:
(a) for or with respect to acquiring, disposing of, subscribing for or underwriting the securities; or
(b) the purpose or purported purpose of which is to secure a profit or gain to a person who acquires, disposes of, subscribes for or underwrites the securities or to any of the parties to the agreement in relation to the securities.
director, in relation to a body corporate, includes:
(a) any person occupying or acting in the position of director of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorized to act in the position;
(b) any person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act; and
(c) in the case of a body corporate incorporated or formed outside the Territory:
(i) a member of the committee of management, council or other governing body of the body corporate;
(ii) any person occupying or acting in the position of member of the committee of management, council or other governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and
(iii) any person in accordance with whose instructions the members of the committee of management, council or other governing body of the body corporate are accustomed to act.
eligible money market dealer means a body corporate in respect of which a declaration is in force under paragraph 97(7)(b) of the Companies Act 1981.
event includes any happening, circumstance or state of affairs.
Exchange means Australian Stock Exchange Limited.
Exchange subsidiary means a securities exchange, or a recognised securities exchange, that is a subsidiary of the Exchange.
executive officer, in relation to a body corporate, means any person, by whatever name called and whether or not he is a director of the body corporate, who is concerned, or takes part, in the management of the body corporate.
exempt dealer has the meaning given by section 6C.
exempt investment adviser has the meaning given by section 6C.
exempt public authority means a body corporate that is incorporated within Australia and is a public authority or an instrumentality or agency of the Crown in right of the Commonwealth or of a State or Territory.
exempt stock market means a stock market in relation to which, or a stock market included in a class of stock markets, being a class in relation to which, a declaration under subsection 37(1A) is in force.
externally‑administered body corporate means a body corporate:
(a) that is being wound up under an Australian company law;
(b) in respect of property of which a receiver, or a receiver and manager, has been appointed under an Australian company law (whether or not by a court) and is acting;
(c) that is under official management under an Australian company law; or
(d) that has, whether in the Territory or elsewhere, entered into a compromise or arrangement with its creditors that is still in operation.
fidelity fund, in relation to a securities exchange, means the fidelity fund (if any) that section 100 requires or required the securities exchange to establish and keep.
function includes a duty.
Fund means the National Guarantee Fund established under subsection 122CA(1).
have, in relation to information, includes be in possession of the information.
hold, in relation to a person, in relation to a document that is, or purports to be, a copy of a licence, means have in the person’s possession.
included, in relation to an official list, has the meaning given by section 6D.
information service means:
(a) a broadcasting service;
(b) an interactive or broadcast videotext or teletext service or a similar service;
(c) an online database service or a similar service; or
(d) any other prescribed service.
insolvent under administration means a person who:
(a) under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which he has not been discharged; or
(b) under the law of a country other than Australia or the law of an external Territory, has the status of an undischarged bankrupt;
and includes:
(c) a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external Territory or of the law of a country other than Australia where the terms of the deed have not been fully complied with; and
(d) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external Territory or of the law of a country other than Australia where a final payment has not been made under that composition.
invalid authority has the meaning given by subsection 6F(2).
investment advice business has the meaning given by section 6E.
investment adviser means a person who carries on, or 2 or more persons who together carry on, an investment advice business.
investment advisers licence means an investment advisers licence granted under Part IV.
investment contract means any contract, scheme or arrangement that, in substance and irrespective of the form of the contract, scheme or arrangement, involves the investment of money in or under such circumstances that the investor acquires or may acquire an interest in or right in respect of property, whether in the Territory or elsewhere, that, under, or in accordance with, the terms of investment will, or may at the option of the investor, be used or employed in common with any other interest in or right in respect of property, whether in the Territory or elsewhere, acquired in or under like circumstances.
licence means a dealers licence or an investment advisers licence.
licensee means a person who holds a licence and, in relation to a licence, means the person who holds the last‑mentioned licence.
liquidator includes a provisional liquidator.
listing rules, in relation to a body corporate that maintains or provides, or proposes to maintain or provide, a stock market, means rules, regulations or by‑laws governing or relating to:
(a) the admission to, or removal from, the official list of the body corporate of bodies corporate, governments, unincorporate bodies or other persons for the purpose of the quotation on the stock market of the body corporate of securities of, or made available by, bodies corporate, governments, unincorporate bodies or other persons and for other purposes; or
(b) the activities or conduct of bodies corporate, governments, unincorporate bodies and other persons who are admitted to that list;
whether those rules, regulations or by‑laws:
(c) are made by the body corporate or are contained in any of the constituent documents of the body corporate; or
(d) are made by another person and adopted by the body corporate.
local Exchange subsidiary means a securities exchange that is an Exchange subsidiary.
lodge means lodge with the Commission.
marketable parcel, in relation to securities that are listed for quotation on the stock market of a securities exchange, means a marketable parcel of those securities within the meaning of the relevant business rules or listing rules of that securities exchange.
member, in relation to a securities exchange or a recognised securities exchange, means, except in the definition of member organisation and in Part IIA, a person who is, or who is a partner in, a member organisation of the securities exchange or recognised securities exchange.
member firm, in relation to a securities exchange or a recognised securities exchange, means a partnership that is a member organisation of the securities exchange or recognised securities exchange.
member organisation, in relation to a securities exchange or a recognised securities exchange, means:
(a) a member of the securities exchange or recognised securities exchange who or that carries on a business of dealing in securities on his, her or its own account and not in partnership; or
(b) a partnership that carries on a business of dealing in securities and is recognised by the securities exchange or recognised securities exchange as a member organisation or member firm.
memorandum means memorandum of association.
non‑dealer means a person who is neither a dealer nor one of 2 or more persons who together constitute a dealer.
officer, in relation to a body corporate, includes:
(a) a director, secretary, executive officer or employee of the body corporate;
(b) a receiver and manager of property of the body corporate appointed under a power contained in an instrument;
(c) an official manager or deputy official manager of the body corporate;
(d) a liquidator of the body corporate appointed in a voluntary winding up of the body corporate; and
(e) a trustee or other person administering a compromise or arrangement made between the body corporate and another person or other persons;
but does not include:
(f) a receiver who is not also a manager;
(g) a receiver and manager appointed by a court; or
(h) a liquidator appointed by a court.
on, in relation to a stock market, includes at or by means of.
participation interest means any right to participate, or any interest:
(a) in any profits, assets or realisation of any financial or business undertaking or scheme whether in the Territory or elsewhere;
(b) in any common enterprise, whether in the Territory or elsewhere, in relation to which the holder of the right or interest is led to expect profits, rent or interest from the efforts of the promoter of the enterprise or a third party; or
(c) in any investment contract;
whether or not the right or interest is enforceable, whether the right or interest is actual, prospective or contingent, whether or not the right or interest is evidenced by a formal document and whether or not the right or interest relates to a physical asset, but does not include:
(d) such a right that is a right to participate in a time‑sharing scheme;
(e) any share in, or debenture of, a corporation;
(f) any interest in, or arising out of, a policy of life insurance; or
(g) an interest in a partnership agreement, unless the agreement or proposed agreement:
(i) relates to an undertaking, scheme, enterprise or investment contract promoted by or on behalf of a person whose ordinary business is or includes the promotion of similar undertakings, schemes, enterprises or investment contracts, whether or not that person is, or is to become, a party to the agreement or proposed agreement; or
(ii) is or would be an agreement, or is or would be within a class of agreements, prescribed by the regulations for the purposes of this paragraph.
prescribed interest means:
(a) a participation interest; or
(b) a right, whether enforceable or not, whether actual, prospective or contingent and whether or not evidenced by a formal document, to participate in a time‑sharing scheme;
but does not include a right or interest, or a right or interest included in a class or kind of rights or interests, declared by the regulations to be an exempt right or interest, or a class or kind of exempt rights or interests.
proper authority has the meaning given by section 6F.
publish includes issue.
quarter day means 31 March, 30 June, 30 September or 31 December.
quotation, in relation to securities, in relation to a stock market of a securities exchange, includes the displaying or providing, on a stock market of the securities exchange, of information concerning:
(a) in a case where offers to sell, purchase or exchange the securities at particular prices, or for particular consideration, are made or accepted on that stock market—those prices or that consideration;
(b) in a case where offers or invitations are made on that stock market, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange the securities at particular prices or for particular consideration—those prices or that consideration; or
(c) in any case—the price at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange the securities.
recognised banning order means a banning order within the meaning of a corresponding law of a participating State or participating Territory.
recognized dealer means, subject to section 6G, a person who is the holder of a dealers licence under the provisions of the law of a participating State or participating Territory that correspond with Part IV.
recognized investment adviser means, subject to section 6G, a person who is the holder of an investment advisers licence under the provisions of the law of a participating State or participating Territory that correspond with Part IV.
recognised licence means, subject to section 6G, a licence within the meaning of a corresponding law of a participating State or participating Territory.
recognised licensee means a recognised dealer or a recognised investment adviser and, in relation to a recognised licence, means the person who holds the recognised licence.
recognised securities exchange means a body corporate that is a securities exchange for the purposes of a corresponding law of a participating State or participating Territory.
recognised stock exchange means a body corporate that is a stock exchange for the purposes of a corresponding law of a participating State or participating Territory.
registered company auditor has the same meaning as in the Companies Act 1981.
relevant agreement means an agreement, arrangement or understanding:
(a) whether formal or informal or partly formal and partly informal;
(b) whether written or oral or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights.
responsible officer, in relation to a body corporate that applies for a licence, means an officer of the body who would perform duties in connection with the holding of the licence.
retirement village scheme means a scheme, undertaking or enterprise (in this definition referred to as the relevant scheme), whether in the Territory or elsewhere, that is being, or is proposed to be, carried out or undertaken with the intention that the participants, or a majority of the participants, in the relevant scheme be provided, in connection with the relevant scheme, with residential accommodation within a retirement community, whether or not the entitlement of a participant to be provided with such accommodation derives from a proprietary interest held by the participant in the premises where the accommodation is provided, but does not include a time‑sharing scheme.
securities means:
(a) debentures, stocks or bonds issued or proposed to be issued by a government;
(b) debentures, stocks, shares, bonds or notes issued or proposed to be issued by a body corporate or unincorporate;
(c) an option contract to which this Act applies; or
(d) a prescribed interest;
but does not include:
(e) bills of exchange;
(ea) a futures contract within the meaning of the Futures Industry Act 1986 or of the provisions of a law of a participating State or participating Territory that correspond with that Act;
(f) promissory notes;
(g) certificates of deposit issued by a banking corporation;
(h) in a case where:
(i) there is attached to a share or debenture a right to participate in a retirement village scheme; and
(ii) each of the other rights, and each interest (if any), attached to that share or debenture is a right or interest that is merely incidental to the right referred to in subparagraph (i);
that share or debenture; or
(j) a prescribed interest that is constituted by a right to participate in a retirement village scheme.
securities adviser means a dealer, an investment adviser or a representative of a dealer or of an investment adviser.
securities business has the meaning given by section 6J.
securities exchange means a stock exchange or an approved securities organisation.
securities law means a provision of, or a provision of a law of a participating State or participating Territory that corresponds with a provision of:
(a) this Act;
(b) the Companies (Acquisition of Shares) Act 1980;
(c) Part IV of the Companies Act 1981; or
(d) section 552 of the Companies Act 1981.
securities recommendation means a recommendation with respect to securities or a class of securities, whether made expressly or by implication.
securities report means an analysis or report about securities.
serious fraud means an offence involving fraud or dishonesty, being an offence:
(a) against a law of the Commonwealth, of a State or of a Territory, or against any other law; and
(b) punishable by imprisonment for life or for a period, or maximum period, of at least 3 months.
share means share in the share capital of a body corporate, and includes stock except where a distinction between stock and shares is expressed or implied.
sole trader means a person who is a member organisation of a securities exchange or of a recognised securities exchange.
stock exchange means:
(a) the Exchange; or
(b) a body corporate that is approved by the Ministerial Council under section 38.
stock market means a market, exchange or other place at which, or a facility by means of which:
(a) offers to sell, purchase or exchange securities are regularly made or accepted;
(b) offers or invitations are regularly made, being offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange securities; or
(c) information is regularly provided concerning the prices at which, or the consideration for which, particular persons, or particular classes of persons, propose, or may reasonably be expected, to sell, purchase or exchange securities.
suspend has a meaning affected by subsections 62D(7) and (8).
time‑sharing scheme means a scheme, undertaking or enterprise, whether in the Territory or elsewhere:
(a) participants in which are, or may become, entitled to use, occupy or possess, for 2 or more periods during the period for which the scheme, undertaking or enterprise is to operate, property to which the scheme, undertaking or enterprise relates; and
(b) that is to operate for a period of not less than 3 years.
trading, in relation to securities, in relation to a stock market, includes:
(a) making or accepting on that stock market offers to sell, purchase or exchange the securities; and
(b) making on that stock market offers or invitations that are intended, or may reasonably be expected, to result, whether directly or indirectly, in the making or acceptance of offers to sell, purchase or exchange the securities.
transmission means a transmission, by means of electric or electromagnetic energy, of:
(a) sounds, including speech and music;
(b) visual images;
(c) signals for the communication, whether as between persons and persons, persons and things or things and things, of any matter otherwise than in the form of sounds or visual images; or
(d) signals for the actuation or control of machinery or apparatus.
trust account means a trust account opened and maintained under section 73.
underwrite includes sub‑underwrite.
voting share, in relation to a body corporate, means an issued share in the body corporate that confers a right to vote, not being a right to vote that is exercisable only in one or more of the following circumstances:
(a) during a period during which a dividend (or part of a dividend) in respect of the share is in arrears;
(b) upon a proposal to reduce the share capital of the body corporate;
(c) upon a proposal that affects rights attached to the share;
(d) upon a proposal to wind up the body corporate;
(e) upon a proposal for the disposal of the whole of the property, business and undertaking of the body corporate;
(f) during the winding up of the body corporate.
(1A) Where a person is, for the purposes of the Companies (Acquisition of Shares) Act 1980, taken to acquire shares in a company, the person shall, for the purposes of the definition of dealing in subsection (1), be taken to acquire those shares.
(1B) For the purposes of this Act, a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a body corporate are accustomed to act by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to his professional capacity or to his business relationship with the directors or the body corporate.
(2) A person who, but for this subsection, would be an exempt dealer by reason that he does not carry on a business of dealing in securities except in his capacity as a personal representative of a deceased dealer ceases to be an exempt dealer at the expiration of the period of 6 months after the date of the death of the dealer or upon his being discharged or removed as such a personal representative or upon the final distribution of the estate of the dealer, whichever first occurs.
(5B) In determining for the purposes of this Act whether a market, exchange, place or facility is a stock market, regard shall not be had to the making at that market, exchange or other place, or by means of that facility, as the case may be, of futures contracts within the meaning of the Futures Industry Act 1986 or the provisions of a law of a participating State or participating Territory that correspond with that Act.
(6) A reference in this Act to a securities exchange permitting trading in securities on the stock market of the securities exchange includes a reference to the securities exchange listing the securities for quotation, or otherwise permitting the securities to be quoted, on the stock market of the securities exchange.
(7) For the purposes of this Act, the question whether bodies corporate are related to each other shall be determined in the same manner as the question whether corporations within the meaning of the Companies Act 1981 are related to each other would be determined under that Act.
(7A) A regulation made for the purposes of subparagraph (g)(ii) of the definition of participation interest in subsection (1) does not apply to an agreement or a class of agreements relating to a partnership:
(a) being a partnership for the carrying on of a profession or trade where a person carrying on that profession or trade is required by any law of the Commonwealth, of a State or of a Territory to be registered, licensed or otherwise authorised in order to do so; and
(b) the business of which does not include any business other than the business of a partnership referred to in paragraph (a).
(8) For the purposes of this Act:
(a) a parcel of securities constitutes an odd lot if the number of securities in that parcel is less than one marketable parcel of those securities; and
(b) if the number of securities in a parcel of securities is greater than one marketable parcel of those securities and, after excluding so many of the securities in that parcel as constitute a marketable parcel or marketable parcels of those securities, a number of securities remains, that remaining number of securities constitutes an odd lot.
(8A) A reference in this Act to an option contract to which this Act applies is a reference to:
(a) a contract under which a party to the contract acquires from another party to the contract an option or right, exercisable at or before a specified time, to purchase from, or to sell to, that other party a specified number of specified securities, or of securities included in a specified class of securities, at a price specified in, or to be determined in accordance with, the contract; or
(b) a contract entered into on a stock market of a securities exchange or on an exempt stock market, being a contract under which a party to the contract acquires from another party to the contract an option or right, exercisable at or before a specified time:
(i) to purchase from, or to sell to, that other party a specified amount of a specified foreign currency, or a specified quantity of a specified commodity, at a price specified in, or to be determined in accordance with, the contract; or
(ii) to be paid by that other party an amount of money to be determined by reference to the amount by which a specified number is greater or less than the number of a specified index, being the Australian Stock Exchanges All Ordinaries Price Index or a prescribed index, as at the time when the option or right is exercised.
(9) In this Act a reference to a body corporate, in relation to securities, includes a reference to a government, unincorporate body or other person that issues or makes available those securities.