Transfer of books to ASIC etc
422D Transfer of books to ASIC etc
Transfer of books to ASIC
If a person ceases to act as a controller of property of a corporation, ASIC may, by written notice given to the person, require the person to:
if the person has possession or control of books relating to the control of that property of the corporation in his or her possession or control—transfer possession or control of those books to ASIC within the period specified in the notice; or
otherwise—notify ASIC, within the period and in the manner specified in the notice, that the person does not have books relating to the control of that property of the corporation in the person’s possession or control.
Offence
A person commits an offence if:
the person is subject to a requirement under subsection (1); and
the person intentionally or recklessly fails to comply with the requirement.
Penalty: 50 penalty units.
ASIC must transfer books to new controller
If:
possession or control of books relating to the control of property of a corporation is transferred to ASIC under this section; and
the books are in ASIC’s possession or control; and
a person (the new controller) is or becomes:
the controller of that property of the corporation; or
if the corporation is a company under external administration—the external administrator of the company;
ASIC must, as soon as practicable, transfer possession or control of those books to the new controller.
ASIC must transfer books to company
If:
possession or control of books relating to the control of property of a corporation is transferred to ASIC under this section; and
the books are in ASIC’s possession or control; and
it is unlikely that another person will be appointed as:
the controller of that property of the corporation; or
if the corporation is a company under external administration—the external administrator of the company;
ASIC must, as soon as practicable, transfer possession or control of those books to the relevant corporation.
Lien against books not prejudiced
If asic is entitled to take possession or control of the books under this section:
a person is not entitled, as against ASIC, to claim a lien on the books; and
such a lien is not otherwise prejudiced.
If ASIC is required to give possession or control of the books to the new controller under this section:
a person is not entitled, as against the new controller, to claim a lien on the books; and
such a lien is not otherwise prejudiced.
Notice is not a legislative instrument
A notice under subsection (1) is not a legislative instrument.
Retention period for books
ASIC must retain all books:
that are relevant to the control of property of the corporation; and
possession or control of which is transferred to ASIC under this section; and
possession or control of which is not transferred to another entity under this section, or under any other law;
for a period (the retention period) of 2 years after the day on which ASIC takes possession or control of the books.
Destruction of books at end of retention period
ASIC may destroy the books at the end of the retention period.
Relationship with other laws
Subsections (8) and (9) do not apply to the extent that ASIC is under an obligation to retain the books, or a part of the books, under another provision of this Act or under any other law.
This Act’s bill:Explanatory memorandumSecond reading speech
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