Corporations Act - Australia

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of the Criminal Code.

      Part 2D.8 — Remuneration recommendations in relation to key management personnel for disclosing entities

      206K Board to approve remuneration consultants

      (1) This section applies to a contract (a remuneration consultancy contract):

      (a) that is for services that include making a remuneration recommendation in relation to one or more members of the key management personnel for a company that is a disclosing entity; and

      (b) that is between the company and a person (the proposed consultant) who, by making the recommendation under the contract, will be a remuneration consultant.

      (2) Before a company enters into a remuneration consultancy contract, the proposed consultant must be approved by:

      (a) the directors of the company; or

      (b) the members of a committee (the remuneration committee) that:

      (i) is a committee of the board of directors of the company; and

      (ii) has functions relating to the remuneration of key management personnel for the company.

      (3) A contravention of subsection (2):

      (a) is not an offence except as provided by subsection (4); and

      (b) does not affect the validity of the contract.

      (4) The company commits an offence if, at the time the company enters into the contract, the proposed consultant has not been approved in accordance with subsection (2).

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

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

      206L Remuneration recommendation by remuneration consultants

      (1) This section applies to a remuneration recommendation made by a remuneration consultant in relation to one or more members of the key management personnel for a company that is a disclosing entity.

      (2) The remuneration consultant must provide the recommendation directly to either or both of the following:

      (a) the directors of the company;

      (b) the members of the remuneration committee (if any).

      (3) However, the remuneration consultant must not provide the recommendation to a person who is an executive director of the company unless all the directors of the company are executive directors of the company.

      (4) The remuneration consultant must not provide the recommendation to a person who is neither a director of the company nor a member of the remuneration committee.

      (5) If the remuneration consultant contravenes subsection (2) the remuneration consultant is not guilty of an offence. This does not prevent the remuneration consultant from being guilty of an offence for contravening subsection (3) or (4).

      Note: Subsection 1311(1) makes it an offence for the remuneration consultant to contravene subsection (3) or (4).

      (6) This section does not prevent someone other than the remuneration consultant from providing the recommendation to a person who is neither a director of the company nor a member of the remuneration committee.

      206M Declaration by remuneration consultant

      (1) This section applies to a remuneration consultant who makes a remuneration recommendation in relation to one or more members of the key management personnel for a company that is a disclosing entity.

      (2) The remuneration consultant must include with the recommendation a declaration about whether the consultant’s recommendation is made free from undue influence by the member or members of the key management personnel to whom the recommendation relates.

      Note: Failure to comply with this subsection is an offence: see subsection 1311(1).

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

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

      Chapter 2E — Related party transactions

      207 Purpose

      The rules in this Chapter are designed to protect the interests of a public company’s members as a whole, by requiring member approval for giving financial benefits to related parties that could endanger those interests.

      Part 2E.1 — Member approval needed for related party benefit

      Division 1 — Need for member approval

      208 Need for member approval for financial benefit

      (1) For a public company, or an entity that the public company controls, to give a financial benefit to a related party of the public company:

      (a) the public company or entity must:

      (i) obtain the approval of the public company’s members in the way set out in sections 217 to 227; and

      (ii) give the benefit within 15 months after the approval; or

      (b) the giving of the benefit must fall within an exception set out in sections 210 to 216.

      Note: 1: Section 228 defines related party, section 9 defines entity, section 50AA defines control and section 229 affects the meaning of giving a financial benefit.

      Note: 2: For the criminal liability of a person dishonestly involved in a contravention of this subsection, see subsection 209(3). Section 79 defines involved.

      (2) If:

      (a) the giving of the benefit is required by a contract; and

      (b) the making of the contract was approved in accordance with subparagraph (1)(a)(i) as a financial benefit given to the related party; and

      (c) the contract was made:

      (i) within 15 months after that approval; or

      (ii) before that approval, if the contract was conditional on the approval being obtained;

      member approval for the giving of the benefit is taken to have been given and the benefit need not be given within the 15 months.

      209 Consequences of breach

      (1) If the public company or entity contravenes section 208:

      (a) the contravention does not affect the validity of any contract or transaction connected with the giving of the benefit; and

      (b) the public company or entity is not guilty of an offence.

      Note: A Court may order an injunction to stop the company or entity giving the benefit to the related party (see section 1324).

      (2) A person contravenes this subsection if they are involved in a contravention of section 208 by a public company or entity.

      Note: 1: This subsection is a civil penalty provision.

      Note: 2: Section 79 defines involved.

      (3) A person commits an offence if they are involved in a contravention of section 208 by a public company or entity and the involvement is dishonest.

      Division 2 — Exceptions to the requirement for member approval

      210 Arm’s length terms

      Member approval is not needed to give a financial benefit on terms that:

      (a) would be reasonable in the circumstances if the public company or entity

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