Corporations Act - Australia

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by way of compensation for, or otherwise in connection with, the loss by the person of the office or position; or

      (ii) in connection with the person’s retirement from the office or position; and

      (e) retirement from an office or position includes:

      (i) loss of the office or position; and

      (ii) resignation from the office or position; and

      (iii) death of a person at a time when they hold the office or position; and

      (f) when working out whether a person has retired from an office or position, disregard whether or not the person’s details are included in a directors’ report in accordance with paragraph 300A(1)(c).

      Rules in regulations

      (1A) Without limiting subsection (1), a benefit is given in connection with a person’s retirement from an office or position if the benefit is given in circumstances specified in regulations made for the purposes of this subsection.

      Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

      Related benefits

      (2) For the purposes of this Division, if:

      (a) a person (person A) gives another person a benefit (benefit A); and

      (b) person A gives benefit A for the purpose, or for purposes including the purpose, of enabling or assisting someone to give a person a benefit in connection with the retirement of a person (person B) from an office or position;

      person A is taken to give benefit A in connection with the person B’s retirement from that office or position.

      200B Retirement benefits generally need membership approval

      Benefits in connection with retirement if person has held a managerial or executive office

      (1) An entity mentioned in subsection (1AA) must not give a person a benefit in connection with a person’s (the retiree’s) retirement from an office, or position of employment, in a company or a related body corporate if:

      (a) the office or position is a managerial or executive office; or

      (b) the retiree has, at any time during the last 3 years before his or her retirement, held a managerial or executive office in the company or a related body corporate;

      unless there is member approval under section 200E for the giving of the benefit.

      Note: 1: This subsection extends to benefits given by way of compensation for, or otherwise in connection with, a person’s loss of an office or position (see subsections 200A(1) and (3)).

      Note: 2: Sections 200F, 200G and 200H provide for exceptions to this subsection.

      Note: 3: The recipient of the benefit need not be the retiree.

      (1AA) The entities are as follows:

      (a) the company;

      (b) an associate of the company (other than a body corporate that is related to the company and is itself a company);

      (c) a prescribed superannuation fund in relation to the company.

      (1A) For an offence based on subsection (1), strict liability applies to the circumstance, that the benefit is in connection with the retiree’s, or someone else’s, retirement.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      Prescribed superannuation funds

      (2) For the purposes of this section:

      (a) a superannuation fund is taken to be a prescribed superannuation fund in relation to a company if the company, or an associate of the company, gives a benefit to the superannuation fund in prescribed circumstances; and

      (b) if a prescribed superannuation fund in relation to a company gives a benefit to another superannuation fund in prescribed circumstances, the other superannuation fund is taken to be a prescribed superannuation fund in relation to the company.

      Prescribed circumstances

      (3) For the purposes of this section, if:

      (a) a company, or an associate of a company, gives a benefit to a superannuation fund solely for the purpose of enabling or assisting the superannuation fund to give to a person a benefit in connection with the retiree’s retirement from an office or position in the company or a related body corporate; or

      (b) a superannuation fund gives a benefit to another superannuation fund solely for the purpose of enabling or assisting the other superannuation fund to give to a person a benefit in connection with the retiree’s retirement from an office or position in a company or a related body corporate;

      the benefit first referred to in paragraph (a) or (b) is taken to be given in prescribed circumstances.

      (4) In this section:

      superannuation fund means a provident, benefit, superannuation or retirement fund.

      20 °C Benefits on transfer of undertaking or property need membership approval

      (1) A person must not give a benefit to a person who:

      (a) holds, or has at any previous time held, a managerial or executive office in a company or a related body corporate; or

      (b) is the spouse of a person referred to in paragraph (a); or

      (c) is a relative of a person referred to in paragraph (a) or of the spouse of such a person; or

      (d) is an associate of a person referred to in paragraph (a) or the spouse of an associate of such a person;

      in connection with the transfer of the whole or any part of the undertaking or property of the company.

      (2) For an offence based on subsection (1), strict liability applies to the circumstance, that the transfer is in connection with the transfer of the whole or any part of the undertaking or property of the company.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      (3) Subsection (1) does not apply to the extent that there is member approval under section 200E.

      Note: A defendant bears an evidential burden in relation to the matter in subsection (3), see subsection 13.3(3) of the Criminal Code.

      200D Contravention to receive benefit without member approval

      (1) A person who:

      (a) holds, or has at any previous time held, a managerial or executive office in a company or related body corporate; or

      (b) is the spouse of a person referred to in paragraph (a); or

      (c) is a relative of a person referred to in paragraph (a) or of the spouse of such a person; or

      (d) is an associate of a person referred to in paragraph (a) or the spouse of an associate of such a person;

      must not receive a benefit if the giving of the benefit contravenes section 200B or 20 °C.

      (2) An offence based on subsection (1) is an offence of strict liability.

      Note: For strict liability, see section 6.1 of the Criminal Code.

      200E Approval by members

      Conditions for member approval

      (1) For the purposes of section 200B, the conditions set out in subsections (1B), (2) and (2A) must be satisfied for there to be member approval under this section for the giving of the benefit to the person in connection with the retiree’s

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