Commissioner for Corporate Affairs Act 1980 (TAS)

Commissioner for Corporate Affairs Act 1980

An Act to make provision for the appointment of a Commissioner for Corporate Affairs, and for related matters

[Royal Assent 28 October 1980]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Commissioner for Corporate Affairs Act 1980 . 2Commencement (1)  This section and section 1 shall commence on the date of assent to this Act. (2)  Except as provided in subsection (1) , this Act shall commence on such date as may be fixed by proclamation. 3Interpretation [Section 3 Amended by No. 9 of 1982, s. 7 and Sched. 10 ]In this Act, except in so far as the context or subject-matter otherwise indicates or requires – Commissioner means the Commissioner for Corporate Affairs holding office under section 4 , and includes a person holding that office in an acting capacity; [Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] functions includes duties; [Section 3 Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] securities has the same meaning as in the Corporations Act. 4Appointment, powers, &c., of Commissioner [Section 4 Amended by No. 29 of 1984, s. 3 and Sched. 1 ] (1)  [Section 4 Subsection (1) substituted by No. 5 of 1990, s. 3 and Sched. 1 ][Section 4 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Minister administering the State Service Act 2000 may appoint or employ a State Service officer or State Service employee to be Commissioner for Corporate Affairs and that person shall hold that office in conjunction with State Service employment. (2)  [Section 4 Subsection (2) omitted by No. 5 of 1990, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .   (3)  [Section 4 Subsection (3) amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 4 Subsection (3) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] The person holding office under this section shall have the charge and control of the Corporate Affairs Office of the State and be responsible for carrying out the functions imposed and the powers conferred on the Commissioner by or under any law in force in Tasmania. 5Appointment, powers, &c., of Deputy or Assistant Commissioners and other officers (1)  [Section 5 Subsection (1) substituted by No. 5 of 1990, s. 3 and Sched. 1 ][Section 5 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Minister administering the State Service Act 2000 may appoint or employ State Service officers and State Service employees to be Deputy or Assistant Commissioners and those persons shall hold office in conjunction with State Service employment. (1A)  [Section 5 Subsection (1A) inserted by No. 5 of 1990, s. 3 and Sched. 1 ][Section 5 Subsection (1A) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Subject to and in accordance with the State Service Act 2000 there may be appointed or employed such persons as are required for the purposes of this Act. (2)  [Section 5 Subsection (2) amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 5 Subsection (2) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] Anything authorized or required by or under any law in force in Tasmania to be done or signed by the Commissioner may be done or signed by any Deputy Commissioner or Assistant Commissioner and, if so done or signed, is as valid and effective as if done or signed by the Commissioner. (3)  [Section 5 Subsection (3) inserted by No. 9 of 1982, s. 7 and Sched. 10 ][Section 5 Subsection (3) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] Where by or under any law in force in Tasmania any application or other document or any advice or information is required or permitted to be lodged with, or notified to, the Commissioner, that application, document, advice, or information may be lodged with, or notified to, the Deputy Commissioner or an Assistant Commissioner and the lodgment or notification shall have the same effect as if the application, document, advice, or information had been lodged with or notified to the Commissioner. 6Seal and signature of Commissioner, &c., to be judicially noticed (1) The Commissioner may have and use as the seal of his office a seal in such form as the Minister may approve. (2) Every court, judge, and person acting judicially shall take judicial notice of the signature and seal of the Commissioner. (3) Where any document executed before the commencement of this section contains the signature of a person who, before that commencement, held office as Registrar of Companies or as a Deputy Registrar or an Assistant Registrar, a court, judge, or person acting judicially shall take judicial notice of that signature as if it were the signature of the Commissioner, or, as the case may be, of a Deputy Commissioner or an Assistant Commissioner. (4) Where any document executed before the commencement of this section has affixed to it the seal of the Registrar of Companies, a court, judge, or person acting judicially shall take judicial notice of that seal as if it were the seal of the Commissioner. 6AFunctions, &c., of Commissioner [Section 6A Inserted by No. 9 of 1982, s. 7 and Sched. 10 ] (1) The Commissioner shall have and perform such functions, and may exercise such powers, as may be imposed or conferred on him by or under this Act or by or under any other Act or any law of the Commonwealth, a Territory of the Commonwealth, or another State. (2) The Commissioner shall, as and when directed by the Minister to do so, report to the Minister with respect to the policy that the Commissioner is pursuing or proposes to pursue in the performance or exercise of his functions and powers or such of them as are specified by the Minister when giving the direction. (3) Except as to the contents of a report or recommendation by the Commissioner, the Commissioner is, in the performance or exercise of functions and powers under this Act or any other Act or law (other than those performed or exercised as an inspector pursuant to any law relating to the regulation of companies or the securities industry) subject to the control and direction of the Minister. (4) The Commissioner shall not perform or exercise his functions, powers, or duties in a way that is inconsistent with the Agreement, nor shall the Minister give directions to the Commissioner that are inconsistent with the Agreement. (5)  In this section, Agreement means the agreement made on 22nd December 1978 between the Commonwealth and the States in relation to a proposed scheme for the co-operative regulation of companies and the securities industry, as amended or affected from time to time by any subsequent agreement. 6BRecords to be kept at Corporate Affairs Office [Section 6B Inserted by No. 9 of 1982, s. 7 and Sched. 10 ][Section 6B Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] The Commissioner shall keep the records he is required to keep under any law at his office in Hobart and that office shall be known as the Corporate Affairs Office. 6CDisposal of money by Commissioner [Section 6C Inserted by No. 9 of 1982, s. 7 and Sched. 10 ][Section 6C Amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] Except where otherwise expressly provided by or under this or any other Act or law, all money payable to the Commissioner shall be collected and received by the Commissioner on account of, and shall be paid into, the Public Account. 6DAnnual report of Commissioner [Section 6D Inserted by No. 9 of 1982, s. 7 and Sched. 10 ] (1) As soon as practicable after 30th June, but not later than 31st December, in any year, the Commissioner shall prepare and forward to the Minister a report on the performance and exercise by the Commissioner during the year ended on that 30th June, of the functions and powers conferred or imposed on the Commissioner, by or under this Act or under any other Act or law. (2)  The Minister shall lay the report or cause it to be laid before both Houses of Parliament as soon as practicable after the receipt by him of the report. 6ESecrecy [Section 6E Inserted by No. 9 of 1982, s. 7 and Sched. 10 ] (1)  [Section 6E Subsection (1) amended by No. 67 of 1994, s. 3 and Sched. 1 ]Subject to this section, a person who is, or has at any time been, a Commissioner or a person who is appointed for the purposes of this Act or of any other law in force in Tasmania that confers functions or powers on the Commissioner, or is authorized to perform or exercise any function or power of the Commissioner under this Act or any other Act or law or any such function or power on behalf of the Commissioner, shall not, except to the extent necessary to perform his official duties, or to perform or exercise such a function or power, either directly or indirectly, make a record of, or divulge or communicate to any person, any information that is or was acquired by him by reason of his being or having been so appointed or authorized, or make use of any such information, for any purpose other than the performance of his official duties or the performance or exercise of that function or power.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 1 year, or both.

(2)  Subsection (1) does not preclude a person from – (a) producing a document to a court in the course of proceedings for an offence or in the course of any proceedings under any prescribed Act; (b) divulging or communicating to a court in the course of any proceedings referred to in paragraph (a) any matter or thing coming under his notice in the performance of his official duties, or in the performance of a function or the exercise of a power referred to in that subsection; (c) producing a document, or divulging or communicating information, to a person to whom, in the opinion of the Commissioner, it is in the public interest that the document be produced, or the information be divulged or communicated; or (d) producing a document, or divulging or communicating information that is required or permitted by any law in force in Tasmania, or of another State, or a Territory of the Commonwealth, to be produced, divulged, or communicated, as the case may be. (3)  [Section 6E Subsection (3) omitted by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] .  .  .  .  .  .  .  .   6FRestrictions on dealings in securities [Section 6F Inserted by No. 9 of 1982, s. 7 and Sched. 10 ] (1)  [Section 6F Subsection (1) amended by No. 67 of 1994, s. 3 and Sched. 1 ]A person who is, or has at any time been, a Commissioner or a person who is appointed for the purposes of this Act or any other law in force in Tasmania that confers functions or powers on the Commissioner, or is authorized to perform or exercise any function or power of the Commissioner under this Act or any other law in force in Tasmania, or any such function or power on behalf of the Commissioner, and has, by reason that he is, or has at any time been, a Commissioner or so appointed or authorized, information that is not generally available to members of the public but, if it were, would be likely materially to affect the price of any securities, shall not deal in, or cause or procure any other person to deal in, those securities.

Penalty:  Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 5 years.

(2)  Where a person to whom subsection (1) applies has information as referred to in that subsection and that person deals in any securities in contravention of that subsection, he is liable to compensate any other party to the transaction for any loss sustained by that party by reason of any difference between the price at which the securities were dealt in in that transaction and the price at which they would be likely to have been dealt in in such a transaction at the time the first-mentioned transaction took place if the information had been generally available to members of the public. (3)  The amount of compensation for which a person is liable under subsection (2) is – (a) in a case to which paragraph (b) does not apply – the amount of the loss sustained by the person claiming the compensation; or (b) if the first-mentioned person has been found by a court to be liable to pay an amount or amounts to any other person or persons under subsection (2) or under any other Act or law by reason of the same act or transaction – the amount of that loss less the amount or the sum of the amounts that the first-mentioned person has been so found to be liable to pay. (4)  For the purposes of subsection (3) , the onus of proving that the liability of a person to pay an amount to another person arose from the same act or transaction from which another liability arose lies on the person liable to pay the amount. (5)  Proceedings under this section for recovery of compensation for a loss shall not be commenced after the expiration of 2 years after the date of completion of the transaction in which the loss occurred. (6)  The Attorney-General may, if he considers it to be in the public interest to do so, bring proceedings in the name of, and for the benefit of, a person for the recovery of compensation for a loss referred to in subsection (2) . (7)  Nothing in subsection (2) affects any liability that a person may incur under any other law. (8)  [Section 6F Subsection (8) omitted by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] .  .  .  .  .  .  .  .   6GNotification of interests [Section 6G Inserted by No. 9 of 1982, s. 7 and Sched. 10 ] (1) A Commissioner or a person who is appointed for the purposes of this Act or of any other law of Tasmania that confers functions or powers on the Commissioner, or is authorized to perform or exercise any function or power of the Commissioner under this Act or any other law in force in Tasmania, or any such function or power on behalf of the Commissioner, and who, in the course of his official duties or the performance or exercise of the function or power, is required to consider any matter relating to – (a) a body corporate in the securities of which he has a relevant interest; (b) securities in which he has a relevant interest; (c) securities of the same class as securities in which he has a relevant interest; (d) a person or body – (i) by whom or by which he is employed or has been employed at any time during the immediately preceding 3 years; or (ii) with whom or with which he is associated; or (e) a body corporate that is related to a body corporate by which he is employed or has been employed at any time during the immediately preceding 3 years – shall forthwith in writing inform the Commissioner or, in the case of the Commissioner, the Minister as to that matter and his interest or connection with that matter. (2)  [Section 6G Subsection (2) amended by No. 67 of 1994, s. 3 and Sched. 1 ]Any person to whom subsection (1) applies who fails to comply with that subsection is guilty of an offence and is liable on summary conviction to a fine not exceeding 50 penalty units or to imprisonment for a term not exceeding 1 year, or both. (3)  It is a defence to a prosecution for an offence against subsection (2) in respect of a failure by a person to inform the Commissioner or the Minister that that person is required to consider a matter relating to a particular body corporate, a particular person, or particular securities if that person establishes that, at the time when he was required to consider the matter, he was not aware of a fact or matter the existence of which obliged him to inform the Commissioner or the Minister that he was required to consider the first-mentioned matter. (4)  [Section 6G Subsection (4) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] The questions whether a person has a relevant interest in securities, whether a person is associated with a person or body, and whether 2 bodies corporate are related to each other for the purposes of this section shall be determined as prescribed under the Corporations Act. 6HFees [Section 6H Inserted by No. 97 of 1982, s. 5 and Sched. 5 ] (1) The Commissioner may, for and on behalf of the State – (a) waive or reduce, in a particular case or class of cases, any fees that would otherwise be payable to the Commissioner for or on behalf of the State; or (b) refund in whole or in part, in a particular case or class of cases, fees paid to the Commissioner for or on behalf of the State. (2)  [Section 6H Subsection (2) omitted by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] .  .  .  .  .  .  .  .   7Savings and transitional provisions (1)  In this section, Principal Act means the Companies Act 1962 . (2)  A person holding office as the Registrar of Companies or as a Deputy Registrar or an Assistant Registrar of Companies under section 7 of the Principal Act , as in force immediately before the commencement of this section, shall, on that commencement, be deemed to have been appointed under section 4 to hold office as the Commissioner for Corporate Affairs or, as the case may be, appointed under section 5 as a Deputy Commissioner or an Assistant Commissioner for Corporate Affairs on the same terms and conditions as those under which he was appointed and employed immediately before that commencement. (3)  A reference to the Registrar of Companies or to a Deputy Registrar of Companies or an Assistant Registrar of Companies in any Act, other than the Principal Act , or in any instrument or other document, that is in force or that has effect at the commencement of this section, shall, on and after the commencement, be deemed to be a reference to the Commissioner for Corporate Affairs or, as the case may be, to a Deputy Commissioner or an Assistant Commissioner for Corporate Affairs. (4) All acts, matters, and things done or omitted to be done by, or done or suffered in relation to, the Registrar of Companies before the commencement of this section, shall, on and after that commencement, have the same force and effect as if they had been done or omitted to be done by, or done or suffered in relation to, the Commissioner. (5)  Where, immediately before the commencement of this section, property was vested in the Registrar of Companies by reason of the operation of section 310 of the Companies Act 1962 , the property, on that commencement, vests by force of this section in the Commissioner. (6) Any legal or other proceedings taken by or against the Registrar of Companies before the commencement of this section and pending at that commencement may be continued by or against the Commissioner. (7)  A reference to the Companies Office in any Act, or in any instrument or other document that is in force or that has effect at the commencement of this section, shall, on and after that commencement, be read as a reference to the Corporate Affairs Office. 8References in other Acts, instruments, &c. [Section 8 Inserted by No. 9 of 1982, s. 7 and Sched. 10 ] (1)  [Section 8 Subsection (1) amended by No. 97 of 1982, s. 5 and Sched. 4 ]On and from the day fixed for the commencement of Schedule 10 to the Companies and Securities Legislation (Miscellaneous Amendments) Act 1982 , a reference, however expressed, in any Act, regulation, rule, by-law, order, or proclamation, or any other instrument, whether of a similar kind or not, to – (a) the Registrar of Building Societies, as defined in section 3 of the Building Societies Act 1876 immediately before the commencement of section 7 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1982 ; or (b) the Registrar of Friendly Societies, as defined in section 4 of the Friendly Societies Act 1888 immediately before that commencement – shall be construed as a reference to the Commissioner for Corporate Affairs. (2)  On and from the day fixed for the commencement of Schedule 10 to the Companies and Securities Legislation (Miscellaneous Amendments) Act 1982 , a reference in any instrument made under or for the purposes of, or in connection with, the Co-operative Industrial Societies Act 1928 to the Registrar of the Supreme Court shall be construed as a reference to the Commissioner for Corporate Affairs. (3)  [Section 8 Subsection (3) amended by No. 51 of 1985, s. 4 and Sched. 2 ]Where on or after the commencement of Schedule 10 to the Companies and Securities Legislation (Miscellaneous Amendments) Act 1982 any act or transaction is required or permitted to be done by or in relation to the Commissioner under or for the purposes of, or in connection with, any law of Tasmania and, immediately before that commencement, that act or transaction was required or permitted to be done by or in relation to the Registrar of Building Societies, the Registrar of Friendly Societies, or the Registrar of the Supreme Court, any such act or transaction, or any part of any such act or transaction, that was done before that commencement shall, for the purposes of that law as in force after that commencement, be deemed to have been done by or in relation to the Commissioner.