Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

As I flagged in my contribution in the second reading debate, I would like to move the amendments that have been circulated in my name in regard to continuous disclosure obligations. I seek leave to move amendments (1) and (2) on sheet 1796 revised together.

Leave granted.

I move amendments (1) and (2) on sheet 1796 revised together:

(1) Clause 2, page 2 (after table item 4), insert:

(2) Page 94 (after line 9), after Schedule 3, insert:

Schedule 3A — Continuous disclosure obligations

Part 1 — Main amendments

Australian Securities and Investments Commission Act 2001

1 Subsections 12DA(3) and (4)

Repeal the subsections.

Corporations Act 2001

2 Section 674 (heading)

Repeal the heading, substitute:

674 Continuous disclosure — listed disclosing entity bound by a disclosure requirement in market listing rules

3 Paragraphs 674(2)(c) and (d)

Repeal the paragraphs, substitute:

(c) that information:

(i) is not generally available; and

(ii) is information that a reasonable person would expect, if it were generally available, to have a material effect on the price or value of ED securities of the entity;

4 Subsection 674(2) (after note 1)

Insert:

Note 2: This subsection is also a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S.

5 After subsection 674(2)

Insert:

(2A) A person who is involved in a listed disclosing entity's contravention of subsection (2) contravenes this subsection.

Note 1: This subsection is a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S.

Note 2: Section 79 defines involved.

(2B) A person does not contravene subsection (2A) if the person proves that they:

(a) took all steps (if any) that were reasonable in the circumstances to ensure that the listed disclosing entity complied with its obligations under subsection (2); and

(b) after doing so, believed on reasonable grounds that the listed disclosing entity was complying with its obligations under that subsection.

6 Subsection 674(5) (notes 1 and 2)

Repeal the notes, substitute:

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

7 Section 674A

Repeal the section.

8 Section 675 (heading)

Repeal the heading, substitute:

675 Continuous disclosure — other disclosing entities

9 Subsection 675(2)

After "If", insert "the disclosing entity becomes aware of information".

10 Paragraphs 675(2)(a) and (b)

Repeal the paragraphs, substitute:

(a) that is not generally available; and

(b) that a reasonable person would expect, if it were generally available, to have a material effect on the price or value of ED securities of the entity; and

11 Subsection 675(2) (after note 1)

Insert:

Note 2: This subsection is also a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S.

12 After subsection 675(2)

Insert:

(2A) A person who is involved in a disclosing entity's contravention of subsection (2) contravenes this subsection.

Note 1: This subsection is a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S.

Note 2: Section 79 defines involved.

(2B) A person does not contravene subsection (2A) if the person proves that they:

(a) took all steps (if any) that were reasonable in the circumstances to ensure that the disclosing entity complied with its obligations under subsection (2); and

(b) after doing so, believed on reasonable grounds that the disclosing entity was complying with its obligations under that subsection.

13 Section 675A

Repeal the section.

14 Section 676 (heading)

Repeal the heading, substitute:

676 Sections 674 and 675 — when information is generally available

15 Subsection 676(1)

Omit "674, 674A, 675 and 675A", substitute "674 and 675".

16 Section 677 (heading)

Repeal the heading, substitute:

677 Sections 674 and 675 — material effect on price or value

17 Subsection 677(1)

Omit "(1)".

18 Subsection 677(2)

Repeal the subsection.

19 Subsection 1041H(3)

Omit "If a person engages in conduct", substitute "Conduct".

20 Subsection 1041H(3)

Omit "the person's engaging in that conduct does not contravene subsection (1) of this section", substitute "does not contravene subsection (1). For this purpose, conduct contravenes the provision even if the conduct does not constitute an offence, or does not lead to any liability, because of the availability of a defence".

21 Subsections 1041H(4) and (5)

Repeal the subsections.

22 Subsection 1317E(3) (table item dealing with subsections 674A(2), 674A(3), 675A(2) and 675A(3)

Repeal the table item, substitute:

23 Subsection 1325(7) (paragraph (c) of the definition of section 1325 order provision)

Omit "(other than sections 674 and 675)".

Part 2 — Consequential amendments

Australian Securities and Investments Commission Act 2001

24 Subparagraph 127(2D)(b)(ii)

Omit "674, 674A, 675 and 675A", substitute "674 and 675".

Corporations Act 2001

25 Section 9 (paragraph (a) of the definition of continuous disclosure notice )

Omit "subsections 674(1) and 674A(1)", substitute "subsection 674(1)".

26 Section 9 (paragraph (b) of the definition of continuous disclosure notice )

Omit "or 675A".

27 Subsection 111AP(1)

Omit "674, 674A, 675 and 675A", substitute "674 and 675".

28 Paragraph 111AR(1)(d)

Omit "674, 674A, 675 and 675A", substitute "674 and 675".

29 Paragraph 708AA(3)(c)

Omit "674, 674A, 675 and 675A", substitute "674 and 675".

30 Subparagraph 708AA(7)(c)(ii)

Omit "sections 674 and 674A", substitute "section 674".

31 Paragraph 708A(2)(c)

Omit "674, 674A, 675 and 675A", substitute "674 and 675".

32 Subparagraph 708A(6)(d)(ii)

Omit "sections 674 and 674A", substitute "section 674".

33 Paragraph 713(6)(aa)

Omit "subsection 674(2), 674A(2), 675(2) or 675A(2)", substitute "subsection 674(2) or 675(2)".

34 Paragraph 713A(23)(c)

Omit "674, 674A, 675 or 675A", substitute "674 or 675".

35 Paragraph 1012DAA(3)(b)

Omit "674, 674A, 675 or 675A", substitute "674 or 675".

36 Paragraph 1012DAA(3)(ba)

Omit "674, 674A, 675 or 675A", substitute "674 or 675".

37 Subparagraph 1012DAA(7)(d)(ii)

Omit "sections 674 and 674A as they", substitute "section 674 as it".

38 Subparagraph 1012DAA(7)(da)(ii)

Omit "sections 674 and 674A as they apply", substitute "section 674 as it applies".

39 Paragraph 1012DA(2)(b)

Omit "674, 674A, 675 or 675A", substitute "674 or 675".

40 Paragraph 1012DA(6)(e)

Omit "sections 674 and 674A", substitute "section 674".

41 Subparagraph 1013F(2)(d)(ii)

Omit "674, 674A, 675 and 675A", substitute "674 and 675".

42 Subparagraph 1013FA(3)(a)(ii)

Omit "subsection 674(2), 674A(2), 675(2) or 675A(2)", substitute "subsection 674(2) or 675(2)".

43 Subsection 1017B(2) (note 1)

After "Chapter 6CA", insert "(sections 674-677)".

44 Section 1200K

Omit "sections 675 and 675A also have the operation they would have if paragraphs 675(2)(c) and 675A(2)(c)", substitute "section 675 also has the operation it would have if paragraph 675(2)(c)".

45 After paragraph 1317DAA(2)(d)

Insert:

(e) references to a civil penalty order under Part 9.4B being made against a disclosing entity in relation to a contravention of subsection 674(2) or 675(2) are taken to be references to such an order being made against the responsible entity in relation to the registered scheme; and

46 After paragraph 1317DAA(3)(d)

Insert:

(e) references to a civil penalty order under Part 9.4B being made against a disclosing entity in relation to a contravention of subsection 674(2) or 675(2) are taken to be references to such an order being made against the operator of the fund in relation to the fund; and

47 Subsection 1317DAA(4)

Repeal the subsection.

48 Subsection 1317DAB(1)

After "675(2)", insert "as an alternative to proceedings for civil penalties under Part 9.4B".

49 After paragraph 1317DAE(1)(e)

Insert:

(f) must state the maximum pecuniary penalty that a Court could impose under Part 9.4B in relation to the alleged contravention; and

50 Paragraph 1317DAE(3)(d)

Omit "(as those subsections applied before the commencement of Part 1 of Schedule 2 to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021)".

51 Paragraph 1317DAE(5)(b)

Omit "(as those subsections applied before the commencement of Part 1 of Schedule 2 to the Treasury Laws Amendment (2021 Measures No. 1) Act 2021)".

52 After subsection 1317DAG(1)

Insert:

Effect of failure to comply with infringement notice

(2) If the disclosing entity fails to do a thing specified in column 2 of the following table within the compliance period for the infringement notice, the disclosing entity is liable to the proceedings specified in column 3 of the following table:

53 Subsection 1317DAG(3)

Omit "no proceedings", substitute "no other proceedings (whether criminal or civil)".

54 After paragraph 1317DAI(6)(c)

Insert:

(d) that civil proceedings under Part 9.4B may be brought against the disclosing entity for a contravention of the provision specified in the infringement notice; and

55 Sections 1683B and 1683C

Repeal the sections.

Part 3 — Application provision

Corporations Act 2001

56 In the appropriate position in Chapter 10

Insert:

Part 10.69 — Application provisions relating to Schedule 3A to the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023

1699 Application of amendments

The amendments made by Parts 1 and 2 of Schedule 3A to the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 apply in relation to conduct that is engaged in on or after the commencement of those Parts.

Part 4 — Review of operation of amendments

57 Review of operation of amendments

(1) The Minister must cause a review of the operation of the amendments made by Schedule 3A to this Act to be conducted by an independent expert within 6 months after the third anniversary of the commencement of this section.

(2) The person who conducts the review must give the Minister a written report of the review.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

Recommendations

(4) The report may set out recommendations to the Commonwealth Government.

(5) If the report sets out one or more recommendations to the Commonwealth Government, the report must set out the reasons for those recommendations.

Government response to recommendations

(6) If the report sets out one or more recommendations to the Commonwealth Government, as soon as practicable, and in any event within 3 months, after the report is first tabled in a House of the Parliament, the Minister must cause:

(a) a statement setting out the Commonwealth Government's response to each of the recommendations to be prepared; and

(b) the statement to be published on the Department's website.

I will be brief. I thank the minister for her response, and I acknowledge the point she made about a review into this. That is, I think, commencing shortly. Notwithstanding that, the arguments put forward by Mr Jones at the time, which I've placed on the record today, are rock solid and, taken as a whole, are absolutely an argument for these amendments to be accepted. I hear the minister's rationale, but I just express my and the Greens' disappointment in the government's position.

Dean Smith (WA, Liberal Party, Shadow Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

The coalition will not be supporting the amendments moved by Senator McKim. The coalition is proud to have supported formalising continuous disclosure laws in government in a manner that got the balance right between informing shareholders and enabling businesses to confidently invest and plan for their businesses. The coalition supports the current statutory independent review mechanism that Senator McCarthy alluded to and will await its conclusion and consider its findings in due course.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.