Persons who may apply

(1) Section 35(1) is amended by omitting "section 34 of this Act" and substituting "section 33F, 33I, or 33K".

(2) Section 35(3) is amended by omitting "section 34 of this Act" and substituting "section 33F, 33I, or 33K".

(3) Section 35 is amended by repealing subsection (4) and substituting the following subsection:

"(4) If the Panel makes a determination under section 32(3)(b) (a determination that the Panel is not satisfied that a person has acted or is acting or intends to act in compliance with the takeovers code), the Panel may make an application to the Court under section 33M."

Sections 36 and 37 repealed

Sections 36 and 37 are repealed.

Court may have regard to determinations and recommendations by Panel

(1) Section 38(1) is amended by omitting "section 34 of this Act" and substituting "this subpart".

(2) Section 38(2) is amended by omitting "section 36 of this Act" and substituting "section 33I or 33K".

Sections 39 and 40 repealed

Sections 39 and 40 are repealed.

New section 41 substituted

Section 41 is repealed and the following section substituted:

"41 Court may excuse contravention

"(1) If the Court is satisfied that a person has, by any act or omission, contravened the takeovers code, but that the contravention ought to be excused, the Court may (by order) declare that the act or omission was not a contravention of the code.

"(2) In considering whether the contravention should be excused, the Court may have regard to---

"(a) inadvertence or mistake on the part of the person concerned:

"(b) whether the person was aware of a relevant factor or circumstance:

"(c) circumstances beyond that person's control:

"(d) any other matters that the Court thinks fit.

"(3) The order has effect according to its tenor."

Court may require person to give evidence or produce documents relating to interests in securities

(1) Section 42(1) is amended by omitting "section 34 of this Act" and substituting "this subpart".

(2) Section 42(2) is amended by omitting "section 34 of this Act" and substituting "this subpart".

New sections 43 to 43C substituted

Section 43 is repealed and the following sections substituted:

"43 More than 1 civil remedy order may be made for same conduct

The Court may make a civil remedy order of one kind against a person even though the Court has made another civil remedy order of a different kind against the person for the same conduct.

Examples
The Court may make a compensatory order and a pecuniary penalty order for the same conduct.
The Court may make a civil remedy order requiring forfeiture of securities and declaring a previous exercise of voting rights attaching to those securities to be void.

"43A Only 1 pecuniary penalty order may be made for same conduct

If conduct by a person constitutes a contravention of 2 or more provisions of the takeovers code, proceedings may be brought against that person for the contravention of any one or more of the provisions, but no person is liable to more than one pecuniary penalty order for the same conduct.

"43B Standard of proof for civil remedies

The proceedings under this subpart are civil proceedings and the usual rules of the Court and rules of evidence and procedure for civil proceedings apply (including the standard of proof).

"43C Time limit for applying for civil remedies

"(1) An application for a civil remedy order under section 33I or a pecuniary penalty order under section 33M may be made at any time within 2 years after the date on which the matter giving rise to the contravention was discovered or ought reasonably to have been discovered.

"(2) The usual time limits apply to all applications for other civil remedy orders.

"(3) However, an application for a compensatory order in respect of a contravention may be made at any time within 6 months after the date on which a declaration of contravention is made, even if the usual time limit has expired."

New heading and subparts 3, 4, and 5 substituted

Section 44 is repealed and the following heading and subparts substituted:

"44 General offences

"(1) A person must not---

"(a) furnish information, produce a document, or give evidence to the Panel or a member, officer, or employee of the Panel knowing it to be false or misleading; or

"(b) attempt to deceive or knowingly mislead the Panel or a member, officer, or employee of the Panel in relation to any matter before it.

"(2) A person who has been summoned to appear before the Panel or a member, officer, or employee of the Panel must not, without reasonable excuse,---

"(a) refuse or fail to appear before the Panel to give evidence:

"(b) refuse to take an oath or affirmation as a witness:

"(c) refuse to answer any question:

"(d) refuse or fail to provide any document or information that the person is required to provide.

"(3) A body corporate contravenes subsection (2) if its representative refuses or fails to appear before the Panel to give evidence, refuses to take an oath or affirmation as a witness, refuses to answer any question, or refuses or fails to provide any document or information that the body corporate is required to provide.

"(4) A person must not act in contravention of any order made by the Panel under section 31X or section 32.

"(5) Every person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding $300,000 and, if the offence is a continuing one, to a further fine not exceeding $10,000 for every day or part of a day during which the offence is committed.

"44A Conviction of offence under section 44 excluded in certain cases

"(1) A person must not be convicted of an offence under section 44 if, in the opinion of the Court dealing with the case,---

"(a) the contravention related to matters that were immaterial to the relevant matter before the Panel; or

"(b) the contravention ought reasonably to be excused, having regard to all the circumstances of the case.

"(2) A director of a body corporate must not be convicted of an offence under section 44 in relation to a contravention by the body corporate if, in the opinion of the Court dealing with the case, the contravention took place without the director's knowledge and consent.

"False or misleading statement or information

"44B False or misleading statement or information

"(1) A person must not make a statement or disseminate information, in relation to any transaction or event regulated by the takeovers code or incidental or preliminary to a transaction or event that is or is likely to be regulated by the takeovers code, if---

"(a) a material aspect of the statement or information is false or the statement or information is materially misleading; and

"(b) the statement or information is likely to---

"(i) induce a person to trade, or hold, the securities of a specified company; or

"(ii) have the effect of increasing, reducing, maintaining, or stabilising the price for trading in those securities; or

"(iii) induce a person to vote for, or to vote against, a transaction that is or is likely to be regulated by the takeovers code, or to abstain from voting in respect of that transaction.

"(2) In this section, trade means to acquire or dispose of securities.

"44C Criminal liability for false or misleading statement or information

"(1) A person who contravenes section 44B commits an offence if the person has actual knowledge that the statement or information is false in a material aspect or is materially misleading.

"(2) A person who commits an offence against subsection (1) is liable on conviction on indictment to,---

"(a) in the case of an individual, imprisonment for a term not exceeding 5 years or a fine not exceeding $300,000, or to both:

"(b) in the case of a body corporate, a fine not exceeding $1,000,000.

"44D Exception for disclosure by investment advisers or brokers

Section 44B does not apply to conduct in relation to a disclosure under Part 4 of the Securities Markets Act 1988 or to conduct in relation to an advice advertisement, a broker advertisement, or a product advertisement to the extent that that conduct is regulated by Part 4 of that Act.

"44E Fair Trading Act 1986 excluded

The Fair Trading Act 1986 does not apply to conduct in relation to any transaction or event regulated by the takeovers code or incidental or preliminary to a transaction or event that is or is likely to be regulated by the takeovers code.