Summary of Questions for Submission
- Is the current definition of "relevant interest" appropriate? Is an approach focused on control of voting rights more appropriate?
- Can section 6 (concerning when a relevant interest can be disregarded) be improved?
- Should section 6(1) be amended so as to include similar categories to those in section 609 of the Corporations Act that do not already have corresponding provisions in section 6(1) of the Amendment Act? Should the Securities Commission's power of designation be continued or should there simply be a list of exemptions?
- Should the reference to convertible securities in the definition of "voting security" in section 2 of the Securities Amendment Act be removed or amended?
- If so, what should it be replaced with? Do you favour one of the options identified or something else?
- Should the substantial security holder disclosure regime apply to collective investment schemes?
- What changes should be made to the Amendment Act to reflect your answer to the previous question?
- Is the 5% threshold figure for the substantial security holder disclosure regime still appropriate?
- Should the threshold figure for collective investment schemes be the same as for other substantial security holders?
- Should the definition of "substantial security holder" be amended so as to provide for situations involving differential voting rights?
- If so, should the replacement definition be a relevant interest in any class of voting securities issued by the public issuer or body, or a relevant interest in the total voting rights in the public issuer?
- Should the requirement for a person to give notice that they are a substantial security holder arise only when they have actual knowledge of that fact or when they ought to have had knowledge of that fact? Or should the existing reference to constructive knowledge be removed so that the regime is silent on this issue and subject to common law and therefore consistent with Part I of the Amendment Act and the new continuous disclosure provisions proposed by the SMIB? Should the legislation provide guidance as to when a company has knowledge?
- Should the Act require notice to be given "immediately" or should a particular time period be specified? How long should that time period be and why?
- Should there be a different designated time period for officials of collective investment schemes to give notice?
- Should non-compliance with substantial security holder obligations be a criminal offence?
- Should civil penalties be imposed in cases of non-compliance with the obligations?
- If so, what should the maximum penalty be that the High Court could impose?
- Should the Securities Commission be given the power to impose administrative financial penalties? If so, what should the maximum penalty be?
- Should the Securities Commission be given the power to make orders requiring disclosure of information?
- Should section 32 of the Amendment Act be amended to allow the High Court to make an order requiring securities to be vested in the Securities Commission or an order requiring a body corporate to repeal or modify its constitution?
- Should the standard of proof in section 30 of the Amendment Act be changed or should the "reasonable grounds to suspect" test be retained? If the standard of proof should be changed, what should it be changed to?
- Do changes need to be made to the Securities (Substantial Security Holders) Regulations 1997 to make disclosure easier and reduce compliance costs? If so, what changes do you suggest?
- Should the possibility of mutual recognition of substantial security holder notices in New Zealand and Australia be considered?
- Do you have comments on any other aspects of the substantial security holder disclosure regime?
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