Corporations Act - Australia

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      (ii) whether the disqualification would be in the public interest; and

      (iii) any other matters that ASIC considers appropriate.

      (2A) To avoid doubt, the references in subsection (2) to a corporation includes a reference to an Aboriginal and Torres Strait Islander corporation.

      Notice of disqualification

      (3) If ASIC disqualifies a person from managing corporations under this section, ASIC must serve a notice on the person advising them of the disqualification. The notice must be in the prescribed form.

      Start of disqualification

      (4) The disqualification takes effect from the time when a notice referred to in subsection (3) is served on the person.

      ASIC power to grant leave

      (5) ASIC may give a person who it has disqualified from managing corporations under this Part written permission to manage a particular corporation or corporations. The permission may be expressed to be subject to conditions and exceptions determined by ASIC.

      206G Court power to grant leave

      (1) A person who is disqualified from managing corporations may apply to the Court for leave to manage:

      (a) corporations; or

      (b) a particular class of corporations; or

      (c) a particular corporation;

      if the person was not disqualified by ASIC.

      (2) The person must lodge a notice with ASIC at least 21 days before commencing the proceedings. The notice must be in the prescribed form.

      (3) The order granting leave may be expressed to be subject to exceptions and conditions determined by the Court.

      Note: If the Court grants the person leave to manage the corporation, the person may be appointed as a director (see section 201B) or secretary (see section 204B) of a company.

      (4) The person must lodge with ASIC a copy of any order granting leave within 14 days after the order is made.

      (5) On application by ASIC, the Court may revoke the leave. The order revoking leave does not take effect until it is served on the person.

      206GA Involvement of ACCC — leave orders under section 206G

      Scope of section

      (1) This section applies in relation to a person who is disqualified from managing corporations under section 206EA.

      Notice lodged with ASIC before leave application

      (2) If the person lodges a notice with ASIC under subsection 206G(2), ASIC must give the ACCC a copy of the notice.

      Leave orders

      (3) If the person lodges a copy of an order with ASIC under subsection 206G(4), ASIC must give the ACCC a copy of the order.

      Revoking leave

      (4) If ASIC decides to apply for an order under subsection 206G(5) in relation to the person, it must consult the ACCC before making the application.

      Definition

      (5) In this section:

      ACCC means the Australian Competition and Consumer Commission.

      206H Territorial application of this Part

      This Part (except for subsection 206B(6) and section 206EAA) does not apply in respect of an act or omission by a person while they are managing a corporation that is a foreign company unless the act or omission occurred in connection with:

      (a) the foreign company carrying on business in this jurisdiction; or

      (b) an act that the foreign company does, or proposes to do, in this jurisdiction; or

      (c) a decision by the foreign company whether or not to do, or refrain from doing, an act in this jurisdiction.

      206HA Limited application of Part to registrable Australian bodies

      This Part does not apply in respect of an act or omission by a person while they are managing a corporation that is a registrable Australian body unless the act or omission occurred in connection with:

      (a) the body carrying on business outside its place of origin; or

      (b) an act that the body does or proposes to do outside its place of origin; or

      (c) a decision by the body whether or not to do, or refrain from doing, an act outside its place of origin.

      206HB Part does not apply to Aboriginal and Torres Strait Islander corporations

      This Part does not apply, of its own force, to disqualify a person from managing a corporation that is an Aboriginal and Torres Strait Islander corporation.

      Note: 1: Subsection 279‑5(5) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 provides that a person who is disqualified from managing corporations under this Part will be automatically disqualified under Part 6‑5 of that Act from managing Aboriginal and Torres Strait Islander corporations.

      Note: 2: Similarly, subsection 206B(5) of this Act provides that a person who is disqualified from managing Aboriginal and Torres Strait Islander corporations under Part 6‑5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 will be automatically disqualified under this Part from managing corporations.

      Part 2D.7 — Ban on hedging remuneration of key management personnel

      206J No hedging of remuneration of key management personnel

      (1) A member of the key management personnel for a company that is a disclosing entity, or a closely related party of such a member, must not enter into an arrangement (with anyone) if the arrangement would have the effect of limiting the exposure of the member to risk relating to an element of the member’s remuneration that:

      (a) has not vested in the member; or

      (b) has vested in the member but remains subject to a holding lock.

      (2) Without limiting paragraph (1)(a), remuneration that is not payable to a member until a particular day is, until that day, remuneration that has not vested in the member.

      (3) In determining whether an arrangement has the effect described in subsection (1) in relation to an element of remuneration described in that subsection, regard is to be had to the regulations (if any) made for the purposes of this subsection.

      (4) A member of the key management personnel for a company who contravenes subsection (1) commits an offence.

      (5) An offence against subsection (4) is an offence of strict liability.

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

      (6) A person commits an offence if:

      (a) the person is a member of the key management personnel for a company; and

      (b) a closely related party of the member contravenes subsection (1) in relation to the member; and

      (c) the person is reckless as to the contravention.

      (7) A closely related party of a member of the key management personnel for a company commits an offence if the party intentionally contravenes subsection (1) in relation to the member.

      (8) ASIC may by writing declare that subsection (1) does not apply to a specified arrangement, but may do so only if ASIC is satisfied that the operation of that subsection would be unreasonable in the circumstances. The declaration has effect accordingly. The declaration is not a legislative instrument.

      Note: A defendant bears an evidential burden in relation to

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