Document ID: chunk:federal_register_of_legislation:C2004A04501:schedule:3:p14
Version: federal_register_of_legislation:C2004A04501
Segment Type: schedule
Provision Reference: sch 3 (pt 14/16)
Character Range: 148419–151232

the application of an interested person.

"Division 6—Enforcement

Consequences of giving financial benefit when not permitted

  "243ZE.(1) This section applies if:

     (a)     a related party of a public company receives a financial benefit from the public company, or from a child entity of the public company; and

     (b)     the public company contravenes subsection 243H(1), or the child entity contravenes subsection 243H(2), by giving the benefit.

  "(2) The related party contravenes this subsection.

Note: If the related party is not itself a legal person, see section 243ZG.

"(3) Subject to subsection (4), a person contravenes this subsection if the person:

  (a)     is involved (as defined in section 79) in; or

     (b)     is, by act or omission, directly or indirectly, recklessly concerned in. or party to;

the contravention of subsection 243H(1) or (2), or the contravention of subsection (2) of this section.

  "(4) Neither the public company nor the child entity:

     (a)     is guilty of an offence because of the contravention of subsection 243H(1) or (2); or

  (b)     is taken to be involved in, or concerned in or party to:

       (i) a contravention of subsection (2) of this section by the

         related party or by any of the persons constituting the related party; or

         (ii) a contravention of subsection (3) of this section by a person.

   Note: In the case of a contravention of subsection 243H(2) by a child entity (other than a body corporate) constituted by 2 or more persons, subsection (4) of this section does not prevent any of those persons from contravening this section.

"(5) Subsections (2) and (3) are civil penalty provisions as defined by section 1317DA, so Part 9.4B provides for civil and criminal consequences of contravening, or of being involved in a contravention of, either of them.

  "(6) In a proceeding against a person for:

  (a)     a contravention of subsection (2); or

    (b)     a contravention of subsection (2) because of section 243ZG, 1317DB, 1317DC or 1317DD;

it is a defence if it is proved that the person was unaware of a fact or circumstance essential to the contravention of subsection 243H(1) or (2), as the case requires.

   Note: Section 103 prevents a contravention of section 243H or of this section from invalidating a transaction.

Voting by or on behalf of related party interested in proposed resolution under Division 5

"243ZF.(1) At a general meeting, a vote on a proposed resolution under Division 5 must not be cast (in any capacity) by or on behalf of:

    (a)     a related party of the public company to whom the resolution would permit a financial benefit to be given; or

  (b)     an associate of such a related party.

  "(2) Subsection (1) does not prevent the casting of a vote if: