8Power of Commission to require production of books

##### 8 Power of Commission to require production of books (1A) The powers of the Commission under subsection (1), or the powers of an authorized person under subsection (2), to make a requirement of a corporation or person shall not be exercised except: (a) for the purpose of: (i) the performance of a function, or the exercise of a power, by the Commission under a relevant Act (other than the exercise of a power of the Commission under subsection 6(3) of the National Companies and Securities Commission Act 1979); or (ii) ensuring compliance with the provisions of a relevant Act; or (b) where the requirement relates to a matter that constitutes or may constitute: (i) a contravention of, or failure to comply with, a provision of such a relevant Act; or (ii) an offence relating to securities that involves fraud or dishonesty. (1B) A reference in subsection (1A) to a relevant Act includes a reference to the provisions of a law of a participating State or participating Territory that correspond with a relevant Act. (1) The Commission may, at any time, by notice in writing: (a) give a direction to: (i) a securities exchange; (ii) a member of the committee of a securities exchange; (iii) a person who is or has been (either alone or together with another person or other persons) a dealer or an investment adviser or is or has been a dealer’s representative or an investment representative; (iv) a nominee controlled by a person referred to in subparagraph (iii) or jointly controlled by 2 or more persons at least one of whom is a person referred to in that subparagraph; (v) a person who is or has been an officer or employee of, or an agent, banker, solicitor, auditor or other person acting in any capacity for or on behalf of, a securities exchange or a person referred to in subparagraph (ii), (iii) or (iv); or (va) any other person who, in the opinion of the Commission, has been a party to any dealing in securities; requiring the production, to a person authorized by the Commission to receive them, at such time and place as are specified in the direction, of such books as are so specified, being books relating to: (vi) the business or affairs of a securities exchange; (vii) any dealing in securities; (viii) any advice concerning securities or the issuing or publication of a report or analysis concerning securities; (ix) the character or financial position of, or any business carried on by, a person referred to in subparagraph (iii) or (iv); or (x) an audit of, or any report of an auditor concerning, a dealing in securities or any accounts or records of a dealer or of an investment adviser; or (b) give a direction to any person requiring the production, to a person authorized by the Commission to receive them, at such time and place as are specified in the direction, of any books relating to matters mentioned in subparagraph (a)(vi), (vii), (viii), (ix) or (x) that are in the custody or under the control of the person. (2) The Commission may from time to time authorize a person, on producing (if required to do so) such evidence of his authority as is prescribed: (a) to require by notice in writing a securities exchange or a person referred to in subparagraph (1)(a)(ii), (iii), (iv), (v) or (va) to produce to the authorized person forthwith or, if a time and place at which the books are to be produced are specified in the notice, at that time and place, such books relating to matters mentioned in subparagraph (1)(a)(vi), (vii), (viii), (ix) or (x) as are specified by the authorized person and are in the custody or under the control of the securities exchange or person of whom the requirement is made; or (b) to require by notice in writing a securities exchange or any other person to produce to the authorized person forthwith or, if a time and place at which the books are to be produced are specified in the notice, at that time and place, any books relating to matters mentioned in subparagraphs (1)(a)(vi), (vii), (viii), (ix) and (x) that are in the custody or under the control of the securities exchange or other person. (3) A reference in subsection (1) to a dealing in securities or to a business carried on by a person includes a reference to a dealing in securities by a person as a trustee or to a business carried on by a person as a trustee, as the case may be. (4) An authorization under subsection (2) may be of general application or may be limited to making requirements of a particular securities exchange or other person or particular securities exchanges or other persons. (5) Where the Commission, or a person authorized by the Commission, requires the production of any books under this section and a person has a lien on the books, the production of the books does not prejudice the lien. (6) Where the Commission, or a person authorized by the Commission, exercises a power under this section to require another person to produce books: (a) if the books are produced, the person to whom the books are produced: (i) may take possession of the books and make copies of, or take extracts from, the books; (ii) may require the other person, or any person who was party to the compilation of the books, to make a statement providing any explanation that the person concerned is able to provide as to any matter relating to the compilation of the books or as to any matter to which the books relate; (iii) may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken, by or on behalf of the Commission; and (iv) during that period shall permit a person who would be entitled to inspect any one or more of the books if they were not in the possession of the person to whom the books were produced to inspect at all reasonable times such of the books as that person would be so entitled to inspect; or (b) if the books are not produced, the Commission or the authorized person may require the other person: (i) to state, to the best of his knowledge and belief, where the books may be found; and (ii) to identify the person who, to the best of his knowledge and belief, last had custody of the books and to state, to the best of his knowledge and belief, where that last‑mentioned person may be found. (6A) A person shall not be subject to any liability by reason that the person complies with a direction given or purporting to have been given under subsection (1), or a requirement made or purporting to have been made under subsection (2). (7) A power conferred by this section to make a requirement of a person extends, if the person is a body corporate, including a body corporate that is in the course of being wound up, or was a body corporate, being a body corporate that has been dissolved, to making that requirement of any person who is or has been an officer of the body corporate. (8) For the purposes of subsection (7), officer, in relation to a body corporate, includes: (a) a director, secretary, executive officer or employee of the body corporate; (b) a receiver, or a receiver and manager, of property of the body corporate; (c) an official manager or a deputy official manager of the body corporate; (d) a liquidator or provisional liquidator 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.