Futures Industry (Application of Laws) Savings and Transitional Provisions Regulation 1986 (NSW)

1Name of Regulation

This Regulation may be cited as the Futures Industry (Application of Laws) Savings and Transitional Provisions Regulation 1986.

2Commencement

This Regulation shall be deemed to have taken effect on and from 1 July 1986.

3Definitions

In this Regulation:

the Code means the Futures Industry (New South Wales) Code.

the Minister means the Minister administering the repealed Act.

the National Commission means the National Companies and Securities Commission established by the National Companies and Securities Commission Act 1979 of the Commonwealth.

the Principal Act means the Futures Industry (Application of Laws) Act 1986.

the repealed Act means the Futures Markets Act 1979.

the State Commission means the Corporate Affairs Commission continued in existence by the Corporate Affairs Commission Act 1981.

4Effect of approval as a futures exchange under the repealed Act

For the purposes of the Code, a futures exchange within the meaning of the repealed Act shall be deemed to be a body corporate approved under section 46 of the Code as a futures exchange.

5International Commodities Clearing House Limited deemed to be approved as a clearing house

For the purposes of the Code, the International Commodities Clearing House Limited shall be deemed to be a body corporate approved under section 48 of the Code as a clearing house for the Sydney Futures Exchange.

6Amendment of business rules of futures exchange(1)

Where the business rules of a futures exchange within the meaning of the repealed Act have been amended and the futures exchange has, within the period of 21 days immediately preceding the commencement of the Principal Act, given notice of the amendment to the Minister in accordance with section 4 of the repealed Act, the provisions of that section shall continue to apply with respect to that amendment as if the Principal Act had not commenced.

(2)

Except as provided by subclause (1), section 54 of the Code shall apply to an amendment made to the business rules of a futures exchange within the meaning of the repealed Act notwithstanding that the amendment was made before the commencement of the Principal Act.

7Certain information deemed to have been given to the National Commission(1)

Where a futures exchange within the meaning of the repealed Act has, before the commencement of the Principal Act, given to the State Commission particulars under section 5 (2) of the repealed Act in relation to a member of the futures exchange whom it has reprimanded, fined, suspended or expelled or against whom it has otherwise taken disciplinary action, those particulars shall be deemed to have been given to the National Commission as required by section 57 of the Code.

(2)

Where a futures exchange within the meaning of the repealed Act has otherwise before the commencement of the Principal Act, reprimanded, fined, suspended, expelled or otherwise taken disciplinary action against a member of the futures exchange but has not before that commencement given to the State Commission particulars of the name of the member, the reason for and nature of the action taken and, where the member was fined, the amount of the fine, the provisions of section 57 (2) of the Code shall apply to the futures exchange with respect to the reprimand, fine, suspension, expulsion or other disciplinary action notwithstanding that it was imposed or taken before the commencement of the Principal Act.

8Enforcement of business rules of futures exchange

Where the Supreme Court has, before the commencement of the Principal Act, made an order under section 6 of the repealed Act and the directions specified in that order have not been complied with before that commencement, the order shall continue to have effect after that commencement as if it were an order made under section 58 of the Code.

9Certain futures contracts not gaming or wagering

Where a futures contract which was made before the commencement of the Principal Act on a futures market maintained by a futures exchange within the meaning of the repealed Act and the futures contract has not been closed out before that commencement, section 59 (2) of the Code shall apply to the futures contract as if the contract had been made after that commencement on a futures market of a futures exchange within the meaning of the Code.

10Fidelity fund(1)

Where:

• (a)

  a futures exchange within the meaning of the repealed Act has, before the commencement of the Principal Act, established and kept a fidelity fund for the purpose of, or for purposes which included, compensating persons for pecuniary loss suffered because of defalcation, or fraudulent misuse of money or other property, by:

  • (i)

    persons who were, at the time of the defalcation or misuse, members of the futures exchange,

  • (ii)

    directors, partners, officers or employees of persons who were at the time members of the futures exchange, or

  • (iii)

    partners in, or employees of, a partnership who were at that time members of the futures exchange, and

• (b)

  immediately before that commencement, the fidelity fund had a credit balance,

that amount shall form part of the fidelity fund of the futures exchange under Part VIII of the Code, after making provision for the total amount of all claims allowed, established or otherwise determined as provided by subclause (3).

(2)

Where the whole or any part of an amount referred to in subclause (1) was, immediately before the commencement of the Principal Act, invested in any manner in which trustees were, at the time of the investment, authorised to invest trust funds on deposit with a corporation in respect of which a declaration under section 97 (7) (b) of the Companies (New South Wales) Code was then in force, that amount, or part, shall be deemed to be invested by the futures exchange in accordance with section 115 of the Code.

(3)

Where a futures exchange within the meaning of section 2 of the repealed Act has, before the commencement of the Principal Act, established and kept a fidelity fund of the kind referred to in subclause (1) and a person who has suffered pecuniary loss has made a claim which has not been determined before that commencement, that claim may be allowed, established or otherwise determined in accordance with the rules of the futures exchange established for the purpose of administering that fund as if the Principal Act had not commenced.

11Proceedings by or against State Commission to be proceedings by or against National Commission(1)

Where, before the commencement of the Principal Act, a proceeding under the repealed Act had been commenced by or against the State Commission, the proceeding may be continued by or against the National Commission.

(2)

Where, but for the enactment of the Principal Act, a proceeding under the repealed Act could have been commenced by or against the State Commission, the proceeding may be commenced by or against the National Commission.