ASIC Class Order [CO 13/854]

Link to law: https://www.comlaw.gov.au/Details/F2013L01766

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Australian Securities and Investments Commission
Corporations Act 2001 — Subsections 655A(1), 673(1), 741(1) and 1020F(1) — Amendment
 
 
Enabling legislation
 
1.       The Australian Securities and Investments Commission makes this instrument under subsections 655A(1), 673(1), 741(1) and 1020F(1) of the Corporations Act 2001 (Act).
 
Title
 
2.       This instrument is ASIC Class Order [CO 13/854].
 
Commencement
 
3.       This instrument commences on the date it is registered under the Legislative Instruments Act 2003.
 
Note:   An instrument is registered when it is recorded on the Federal Register of Legislative Instruments (FRLI) in electronic form: see Legislative Instruments Act 2003, section 4 (definition of register). The FRLI may be accessed at http://www.frli.gov.au/.
 
Amendments
 
4.       ASIC Class Order [CO 04/523] is amended by:
 
(a)     omitting “after subsection 609(10)” and substituting “after subsection 609(16) (as notionally inserted by ASIC Class Order [CO 12/1209])”; and
 
(b)     in notional subsections 609(11) to (13) of the Act:
 
(i)            renumbering notional subsection (11) as notional subsection (17A) and inserting, as a heading to the subsection, “IDPS operators”; and
 
(ii)          renumbering notional subsection (12) as notional subsection (17B) and in the subsection:
 
(A)    omitting “Subsection (11)” and substituting “If ASIC Class Order [CO 02/294] (old IDPS Class Order) applies to the operator of an IDPS due to the operation of ASIC Class Order [CO 13/763], subsection (17A)”; and
(B)    omitting “of an IDPS”; and
 
(C)    omitting “unable to the rely” and substituting “unable to rely”; and
(D)    before “IDPS Class Order” (wherever occurring), inserting “old”; and
 
(E)     omitting “paragraph (11)(b)” and substituting “paragraph (17A)(b)”; and
(iii)        omitting notional subsection (13) and substituting:
 
“(17C) Subsection (17A) does not apply to a person if ASIC has given a notice in writing to the person stating that subsection (17A) does not apply to the person and has not withdrawn that notice.
 
(17D) In subsections (17A) to (17C), IDPS and operator have the same meaning as in subsection 912AD(42).
 
Note:   Notional subsection 912AD(42) is inserted by ASIC Class Order [CO 13/763].”; and
 
(c)     after the heading “Interpretation”, omitting “subsection 609(13)” and  substituting “subsection 609(17D).”.
 
2.       ASIC Class Order [CO 00/455] is amended by:
 
(a)     omitting “after subsection 609(9)” and substituting “after subsection 609(16) (as notionally inserted by ASIC Class Order [CO 12/1209])”; and
 
(b)     in notional subsections 609(9A) to (9C) of the Act:
(i)            omitting notional subsection (9A) and substituting:
“Collective action by institutions
 
(18A) In this subsection and in subsections (18B) and (18C):
 
 institution means a body corporate whose primary functions are to:
(a)     pool the funds of persons to whom the body corporate owes a fiduciary duty, or a contractual duty under a life insurance policy; and
(b)     invest the funds of any of the following:
(i)      a registered scheme;
(ii)     a regulated superannuation fund, an approved deposit fund, a pooled superannuation trust or a public sector superannuation scheme within the meaning of the Superannuation Industry (Supervision) Act 1993;
(iii)    a statutory fund of a registered life insurance company within the meaning of the Life Insurance Act 1995.
 
subject company means where a voting agreement is entered into, the company whose meeting is the subject of the voting agreement.
 
voting agreement means an agreement between two or more institutions relating to voting in a particular way, on a particular issue, or abstaining from voting, at a specified or a proposed meeting of a company in relation to which the institutions have voting power.”; and
 
(ii)          renumbering notional subsection (9B) as notional subsection (18B); and
 
(iii)        renumbering notional subsection (9C) as notional subsection (18C); and
 
(c)     omitting notional subsection 671B(8) of the Act and substituting:
 
“Collective action by institutions
 
(8)             For the purposes of this section, and of the definition of substantial holding in section 9, disregard any relevant interests or voting power in securities which is disregarded for the purposes of Chapter 6 because of  subsections 609(18A) to (18C)”; and
 
(d)     omitting notional subsection 671B(9) of the Act and substituting:
 
“(9)   In this subsection and in subsections (10) to (16):
institution, subject company and voting agreement have the meanings given in subsection 609(18A).
 
meeting means the meeting of a subject company.
 
relevant event means either:
 
(a)           entering into a voting agreement; or
(b)          a party to a voting agreement becoming aware of a change in relevant interests referred to in subsection (11) or (12).”; and
 
(e)     after the heading “Interpretation”:
 
(i)            omitting ““institution”” and substituting “institution”; and
(ii)          omitting ““voting agreement”” and substituting “voting agreement”; and
(iii)        omitting ““this jurisdiction”” (wherever occurring) and substituting “this jurisdiction”.  
 
3.       ASIC Class Order [CO 12/1209] is amended by:
 
(a)     in paragraph 4, inserting as a heading to notional subsection 609(14) of the Act, “ASIC”; and
 
(b)     in the note after paragraph 4, omitting “[CO 03/634]” and substituting “[CO 13/520]”.
 
4.       ASIC Class Order [CO 09/425] is amended by, in subparagraph 14(a), omitting subparagraph (a)(ii) of the definition of custodian and substituting:
 
“(ii)   covers the operation of an IDPS (as defined in ASIC Class Order [CO 13/763]); or”.
 
5.       ASIC Class Order [CO 11/272] is amended by:
 
(a)           in subparagraph 6(a), in notional subsection 671B(3A) of the Act:
(i)      omitting “Information that need not be given.”; and
 
(ii)     inserting, as a heading to the subsection, “Information that need not be given”; and
(b)          in subparagraph 6(b), in notional subsection 671B(4A) of the Act:
 
(i)            omitting “Information that need not be accompanied by certain securities lending agreements.”; and
 
(ii)     inserting, as a heading to the subsection, “Information that need not be accompanied by certain securities lending agreements”.
 
Dated this 26th day of September 2013
 
 
 
 
Signed by Stephen Yen PSM
as a delegate of the Australian Securities and Investments Commission