| C2004C05448 | NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979 [Note: This Act is "repealed" by Act No. 110 of 1991]
(#DATE 29:02:1988)
- Reprinted as at 29 February 1988 *1*The National Companies and Securities Commission Act 1979 as shown in this reprint comprises Act No. 173, 1979 amended as indicated in the Tables below. Table of Acts -------------------------------------------------------------------------------- Application, saving or Number Date Date of transitional Act and year of Assent commencement provisions -------------------------------------------------------------------------------- National Companies and 173, 1979 4 Dec 1979 1 Feb 1980 (see Securities Commission Gazette 1980, Act 1979 No. S7, p.1) National Companies and 1, 1981 5 Mar 1981 5 Mar 1981 - Securities Commission Amendment Act 1981 Companies and Securities 153, 1981 26 Oct 1981 Part II(ss.3 and - Legislation 4): 1 July 1982 (Miscellaneous (see Gazette 1981, Amendments) Act 1981 No. S124, p.2)(a) Companies and Securities 108, 1983 8 Dec 1983 Part I (ss.1 and - Legislation 2): Royal Assent (Miscellaneous Remainder: 1 Jan Amendments) Act 1983 1984 (see Gazette 1983, No. S324, p.1) Public Service Reform 63, 1984 25 June 1984 S. 151 (1): S.151 (9) Act 1984 1 July 1984 (see Gazette 1984, No. S245, p.1) (b) Companies and Securities 192, 1985 16 Dec 1985 Ss. 154-161 and - Legislation 163: 31 Mar 1986 (Miscellaneous (see Gazette Amendments) Act 1985 1986, No. S120, p.1) (c) S.162: (see (c) and Note 2) Companies and Securities 74, 1986 24 June 1986 1 July 1986 (see - Legislation Amendment s.2 and Gazette (Futures Industry) Act 1986, No. S306, 1986 p.1) Australian Stock 6, 1987 13 Mar 1987 Part I (ss. 1 and - Exchange and National 2): Royal Assent Guarantee Fund Remainder: 1 Apr Act 1987 1987 (see Gazette 1987, No. S57, p.1) Statute Law 141, 1987 18 Dec 1987 S. 3: (d) S. 5 (1) (Miscellaneous Provisions) Act 1987 -------------------------------------------------------------------------------- (a) The National Companies and Securities Commission Act 1979 was amended by Part II (sections 3 and 4) only of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1981, subsection 2 (2) of which provides as follows: "(2) Parts II, III, IV and VI shall come into operation on such date as is, or on such respective dates as are, fixed by Proclamation." (b) The National Companies and Securities Commission Act 1979 was amended by subsection 151 (1) only of the Public Service Reform Act 1984, subsection 2 (4) of which provides as follows: "(4) The remaining provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation." (c) The National Companies and Securities Commission Act 1979 was amended by sections 154-163 only of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1985, subsection 2 (1) of which provides as follows: "(1) Subject to this section, the provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation." (See Note 2.) (d) The National Companies and Securities Commission Act 1979 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1987, subsection 2 (24) of which provides as follows: "(24) The amendments of the National Companies and Securities Commission Act 1979 made by this Act shall be deemed to have come into operation on 1 February 1980." Table of Amendments ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted -------------------------------------------------------------------------------- Provision affected How affected -------------------------------------------------------------------------------- S. 3 . . . . . . . am. No. 1, 1981; No. 108, 1983; No. 192, 1985; No. 74, 1986; No. 6, 1987 S. 6 . . . . . . . am. No. 74, 1986 S. 11 . . . . . . . am. No. 192, 1985 S. 14 . . . . . . . am No. 141, 1987 S. 17 . . . . . . . am. No. 192, 1985 S. 19 . . . . . . . am. No. 74, 1986 S. 20 . . . . . . . am. No. 192, 1985 S. 21 . . . . . . . am. No. 1, 1981; No. 192, 1985 S. 24 . . . . . . . am. No. 63, 1984 S. 25 . . . . . . . am. No. 192, 1985 S. 29 . . . . . . . am. No. 1, 1981; No. 108, 1983; No. 141, 1987 S. 34 . . . . . . . am. No. 1, 1981 S. 37 . . . . . . . am. No. 108, 1983 S. 38 . . . . . . . am. No. 192, 1985 S. 39 . . . . . . . am. No. 1, 1981 S. 43A . . . . . . ad. No. 108, 1983 S. 44A . . . . . . ad. No. 1, 1981 S. 45 . . . . . . . am. No. 153, 1981 S. 48 . . . . . . . am. No. 74, 1986 S. 49 . . . . . . . am. No. 74, 1986 S. 50 . . . . . . . rep. No. 192, 1985 -------------------------------------------------------------------------------- NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
-TABLE OF PROVISIONS
TABLE
TABLE OF PROVISIONS
PART I - PRELIMINARY
Section
1. Short title
2. Commencement
3. Interpretation
4. Extension to external Territories
PART II - ESTABLISHMENT, FUNCTIONS AND POWERS OF
COMMISSION
5. Establishment of Commission
6. Functions and powers of Commission
7. Commission to comply with directions of Ministerial Council, Minister
or
State Minister
8. Furnishing of reports and information by Commission
9. Commission to comply with Agreement
PART III - CONSTITUTION AND MEETINGS OF COMMISSION
10. Incorporation
11. Membership of Commission
12. Term of appointment
13. Chairman and Deputy Chairman of Commission
14. Remuneration and allowances
15. Leave of absence
16. Resignation of member
17. Acting appointments
18. Termination of appointment
19. Register of financial interests
20. Meetings of Commission
21. Divisions of Commission
PART IV - STAFF OF COMMISSION
22. Employees
23. Terms and conditions of employment
24. Arrangements relating to staff
25. Engagement of consultants
PART V - FINANCE
26. Payments to Commission by Commonwealth
27. Payments to Commission by States or Territories
28. Moneys of Commission
29. Application of moneys
30. Bank Accounts
31. Estimates
32. Accounts and records
33. Limitation on contracts and leases
34. Audit
35. Liability to taxation
PART VI - HEARINGS BEFORE COMMISSION
36. Hearings before Commission
37. Power to summon witnesses and take evidence
38. Proceedings at hearings
39. Failure of witnesses to attend and answer questions
40. Contempt of Commission
41. Protection of members etc.
42. Hearings deemed to be judicial proceedings
PART VII - MISCELLANEOUS
43. Trust moneys
43A.Accounting Standards Review Board
44. Companies and Securities Law Review Committee
44A.Provision of staff and facilities to Ministerial Council
45. Delegation by Commission
46. Directions by Commission
47. Secrecy
48. Restrictions on dealings in securities and futures contracts
49. Notification of interests
51. Provisions relating to Ministerial Council
52. Annual report and financial statements
53. Regulations
SCHEDULE
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- LONG TITLE
SECT
An Act to establish a National Companies and Securities Commission, and
for purposes connected therewith
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- PART I
PART I - PRELIMINARY
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 1
Short title
SECT
1. This Act may be cited as the National Companies and Securities Commission
Act 1979.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 2
Commencement
SECT
2. This Act shall come into operation on a date to be fixed by
Proclamation.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 3
Interpretation
SECT
3. (1) In this Act, unless the contrary intention appears -
"Accounting Standards Review Board" means the body, known as the Accounting
Standards Review Board, established by the Ministerial Council;
"acting member" means an acting member appointed under sub-section 17 (3);
"Agreement" means the agreement made on 22 December 1978 between the
Commonwealth and the States a copy of which is set out in the Schedule or, if
that agreement is or has been amended or affected by another agreement, that
agreement as so amended or affected;
"approved bank" means the Reserve Bank of Australia or another bank for the
time being approved by the Ministerial Council or by a person authorized by
the Ministerial Council to give approvals for the purposes of this
definition;
"Australia" includes any external Territory to which this Act extends;
"Chairman" means the Chairman of the Commission appointed under sub-section
13 (1);
"Commission" means the National Companies and Securities Commission
established by this Act;
"Companies and Securities Law Review Committee" means the Committee referred
to in sub-clause 21 (2) of the Agreement;
"deal", in relation to securities, means (whether as principal or agent)
acquire, dispose of, subscribe for or underwrite the securities, or make or
offer to make, or induce or attempt to induce a person to make or to offer to
make, an agreement -
(a) for or with respect to acquiring, disposing of, subscribing for or
underwriting the securities; or
(b) the purpose or purported purpose of which is to secure a profit or
gain to a person who acquires, disposes of, subscribes for or underwrites the
securities or to any of the parties to the agreement in relation to the
securities;
"Deputy Chairman" means the Deputy Chairman of the Commission appointed
under sub-section 13 (2);
"full-time member" means a member appointed as a full-time member;
"functions" includes duties;
"futures contract" means a futures contract within the meaning of the
Futures Industry Act 1986 or of the provisions of a law of a participating
State or participating Territory that correspond with that Act;
"member" means a member of the Commission;
"Ministerial Council" means the body known as the Ministerial Council for
Companies and Securities that is established by the Agreement;
"Ministerial Council secretariat" means the staff provided to the
Ministerial Council pursuant to section 44A;
"part-time member" means a member appointed as a part-time member;
"power" includes an authority;
"prescribed interest" means a prescribed interest within the meaning of the
Companies Act 1981 or of the provisions of a law of a participating State or
participating Territory that correspond with that Act;
"securities" has the same meaning as that expression has in the Securities
Industry Act 1980;
"State Minister" means a Minister of the Crown of a State who is a member of
the Ministerial Council and includes a person holding office under section 36
of the Northern Territory (Self-Government) Act 1978 who, in accordance with
the Agreement, is entitled to participate in proceedings of the Ministerial
Council.
(3) In this Act -
(a) a reference to an Act includes a reference to an Ordinance, regulation
or other instrument made under, or by virtue of, an Act but does not include a
reference to a Northern Territory enactment or an instrument made under, or by
virtue of, such an enactment; and
(b) a reference to a State Act includes a reference to a regulation or other
instrument made under, or by virtue of, a State Act.
(4) A reference in this Act to a member of the staff of the Commission shall
be read as a reference to -
(a) an employee of the Commission;
(b) a person whose services are available to the Commission by virtue of
arrangements made under sub-section 24 (1) or (2); or
(c) a person engaged under sub-section 25 (1).
(5) In this Act, unless the contrary intention appears, a reference to
functions or powers of the Commission shall be read as including a reference
to any functions or powers conferred or expressed to be conferred upon the
Commission by any State Act.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 4
Extension to external Territories
SECT
4. This Act extends to such external Territories as are prescribed.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- PART II
PART II - ESTABLISHMENT, FUNCTIONS AND POWERS OF
COMMISSION
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 5
Establishment of Commission
SECT
5. (1) There is established by this Act a Commission by the name of the
National Companies and Securities Commission.
(2) In the performance of a function or the exercise of a power under an
Act, the Commission represents the Crown in right of the Commonwealth.
(3) Nothing in this Act prevents a State Act providing that, in the
performance of a function or the exercise of a power under a State Act, the
Commission is to represent the Crown in right of the State or, in the case of
a State Act being a Northern Territory enactment, the Crown in right of the
Northern Territory.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 6
Functions and powers of Commission
SECT
6. (1) The Commission has such functions and powers as are conferred upon it
by any Act that is a law of a kind referred to in section 122 of the
Constitution.
(2) The Commission shall perform any functions and may exercise any powers
that are conferred or expressed to be conferred upon it by any State Act.
(3) The powers of the Commission include the power to make recommendations
to the Ministerial Council for new laws, or changes in existing laws, for the
Australian Capital Territory relating to companies, the regulation of the
securities industry or the regulation of the futures industry (including
recommendations of a kind that the Companies and Securities Law Review
Committee also has power to make) being laws or changes in laws that are to
have effect in participating States and participating Territories in
accordance with the Agreement.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 7
Commission to comply with directions of Ministerial Council, Minister or
State Minister
SECT
7. Where the Ministerial Council, the Minister or a State Minister gives to
the Commission -
(a) pursuant to the Agreement; or
(b) pursuant to a power conferred or expressed to be conferred by an Act or
a State Act in accordance with the Agreement,
directions with respect to the performance of any of the functions or the
exercise of any of the powers of the Commission, the Commission shall comply
with those directions.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 8
Furnishing of reports and information by Commission
SECT
8. The Commission shall furnish to the Ministerial Council such reports
relating to the performance of its functions or the exercise of its powers,
including reports relating to any policy that the Commission is pursuing or
proposes to pursue, as the Ministerial Council requires.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 9
Commission to comply with Agreement
SECT
9. The Commission shall perform its functions and exercise its powers in
accordance with the Agreement and shall comply in all respects with the
provisions of the Agreement that are applicable to it.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- PART III
PART III - CONSTITUTION AND MEETINGS OF COMMISSION
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 10
Incorporation
SECT
10. (1) The Commission -
(a) is a body corporate, with perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue or be sued in its corporate name.
(2) In addition to the common seal of the Commission there shall be such
duplicates of that seal as the Commission directs and every document to which
such a duplicate seal is affixed shall be deemed to have the common seal of
the Commission affixed to it.
(3) Every court shall take judicial notice of the common seal of the
Commission affixed to a document and, unless the contrary is established,
shall presume that it was duly affixed.
(4) Every court shall take judicial notice of -
(a) the official signature of any person who holds or has held, or is acting
or has acted in, the office of Chairman, Deputy Chairman or other member of
the Commission; and
(b) the fact that that person holds or has held, or is acting or has acted
in, that office,
if a signature purporting to be the signature of that person appears on any
official document.
(5) In this section, a reference to a court shall be construed as including
a reference to -
(a) a federal court and a court of a State or Territory;
(b) a Judge of a court referred to in paragraph (a); and
(c) any other person authorized by law or by consent of parties to receive
evidence,
and, in relation to a person referred to in paragraph (c), the reference to
taking judicial notice shall be construed as a reference to taking the like
notice as would be taken by a court.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 11
Membership of Commission
SECT
11. (1) The Commission shall consist of not less than 3 nor more than 8
members.
(2) The members shall be appointed by the Governor-General on the nomination
of the Ministerial Council.
(3) At least 3 of the members shall be appointed as full-time members and
the remaining members (if any) may be appointed either as full-time members or
as part-time members.
(4) The performance of the functions or the exercise of the powers of the
Commission is not affected by reason only that the number of members, or the
number of full-time members, is less than 3 unless a continuous period of 3
months has elapsed since the number of members, or the number of full-time
members, as the case may be, fell below 3.
(5) For the purposes of sub-section (4), an acting member shall be deemed to
be a member.
(6) The appointment of a person as the Chairman, the Deputy Chairman, a
full-time member or a part-time member is not invalidated and shall not be
called in question by reason of a defect or irregularity in or in connection
with his nomination or appointment.
(7) The validity of anything done by a person purporting to be the Chairman,
the Deputy Chairman, a full-time member or a part-time member shall not be
called in question on the ground that his appointment had not taken effect or
had ceased to have effect.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 12
Term of appointment
SECT
12. (1) Subject to sub-section (2), a member holds office for such period,
not exceeding 5 years, as is specified in the instrument of his appointment,
but is eligible for re-appointment.
(2) A person who has attained the age of 65 years shall not be appointed or
re-appointed as a full-time member and a person shall not be appointed or
re-appointed as a full-time member for a period that extends beyond the date
on which he will attain the age of 65 years.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 13
Chairman and Deputy Chairman of Commission
SECT
13. (1) The Governor-General shall appoint a person who is, or is to be, a
full-time member to be Chairman of the Commission.
(2) The Governor-General shall appoint a person who is, or is to be, a
full-time member (other than the Chairman) to be Deputy Chairman of the
Commission.
(3) The Chairman and the Deputy Chairman shall be appointed on the
nomination of the Ministerial Council.
(4) Subject to this section, a person appointed under this section holds
office as Chairman or Deputy Chairman until the expiration of his period of
appointment as a member or, if he ceases to be a member before the expiration
of that period, until he ceases to be a member.
(5) The Chairman or the Deputy Chairman may resign his office of Chairman or
Deputy Chairman by writing signed by him and delivered to the
Governor-General.
(6) A person who is or has been the Chairman or the Deputy Chairman is
eligible for re-appointment as the Chairman or as the Deputy Chairman, as the
case may be.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 14
Remuneration and allowances
SECT
14. (1) A member shall be paid such remuneration and allowances as are
determined by the Ministerial Council.
(2) The Ministerial Council may, for the purpose of assisting it in making
determinations under sub-section (1), consult with such tribunal or other body
or such tribunals or other bodies as the Ministerial Council considers
appropriate, being a tribunal or other body that has, or tribunals or other
bodies each of which has, experience in fixing rates of remuneration.
(3) The offices of Chairman, Deputy Chairman and member of the Commission
are not public offices for the purposes of Part II of the Remuneration
Tribunals Act 1973.
(4) The Ministerial Council may, by resolution, make a determination about
the provision of superannuation benefits for or in relation to a specified
full-time member who, when the resolution is passed, is not an eligible
employee within the meaning of the Superannuation Act 1976.
(5) The Ministerial Council may, by resolution, vary or revoke a
determination made under subsection (4), including such a determination that
has previously been varied on at least one occasion.
(6) The Ministerial Council shall not make a determination under subsection
(4), or vary or revoke a determination so made, except in accordance with
arrangements approved by the Minister for Finance.
(7) Superannuation benefits may be provided in accordance with a
determination made under subsection (4) as that determination is in force when
the benefits are provided.
(8) In subsections (4) and (7), "superannuation benefits" includes:
(a) benefits in the nature of superannuation benefits; and
(b) benefits similar to benefits provided under the Superannuation Act 1976.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 15
Leave of absence
SECT
15. (1) The Ministerial Council may grant to a full-time member leave of
absence from duty on such terms and conditions as to remuneration or otherwise
as the Ministerial Council specifies.
(2) The Ministerial Council may grant to a part-time member leave of absence
from a meeting of the Commission.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 16
Resignation of member
SECT
16. A member may resign his office by writing signed by him and delivered to
the Governor-General.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 17
Acting appointments
SECT
17. (1) The Deputy Chairman shall act as Chairman during any period when
there is no Chairman or the Chairman is absent from duty or from Australia.
(2) The Governor-General may appoint a member or an acting member (other
than the Chairman or a person acting as Chairman) nominated by the Ministerial
Council to act as Deputy Chairman -
(a) during a vacancy in the office of Deputy Chairman, whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Deputy Chairman is
absent from duty or from Australia or is acting as Chairman.
(3) The Governor-General may -
(a) appoint a person nominated by the Ministerial Council to act as a
full-time member during any period when there are less than 8 persons who are
members or are acting as members in accordance with this paragraph or
paragraph (b);
(b) appoint a person nominated by the Ministerial Council to act as a
part-time member during any period when there are less than 8 persons who are
members or are acting as members in accordance with this paragraph or
paragraph (a) and there are at least 3 persons who are full-time members or
are acting as members in accordance with paragraph (a); or
(c) appoint a person nominated by the Ministerial Council to act as a
full-time member or as a part-time member during any period when a full-time
member (other than the Chairman or the Deputy Chairman) or a part-time member,
as the case may be, is absent from duty or from Australia, is acting as Deputy
Chairman in accordance with sub-section (2) or, in the case of a part-time
member, is, for any reason, unable to perform the functions of his office.
(4) Where a person is acting as Deputy Chairman in accordance with paragraph
(2) (b) and the office of Deputy Chairman becomes vacant while that person is
so acting, that person may continue so to act until the Governor-General
otherwise directs, the vacancy is filled or a period of 12 months from the
date on which the vacancy occurred expires, whichever first happens.
(5) The Governor-General may -
(a) determine the remuneration and allowances of a member or acting member
who is acting as Chairman or as Deputy Chairman in accordance with this
section;
(b) determine the terms and conditions of appointment, including
remuneration and allowances, of a person appointed under subsection (3); and
(c) at any time terminate an appointment under sub-section (2) or (3).
(6) The powers of the Governor-General under sub-sections (4) and (5) shall
be exercised only in accordance with advice that is consistent with
resolutions of the Ministerial Council.
(7) The appointment of a person under this section ceases to have effect if
he resigns the appointment by writing signed by him and delivered to the
Governor-General.
(8) At any time when a person is acting as Chairman, as Deputy Chairman, as
a full-time member or as a part-time member in accordance with this section he
has, and may exercise, all the powers, and shall perform all the functions, of
the Chairman, of the Deputy Chairman, of a full-time member or a part-time
member, as the case may be.
(9) The validity of anything done by a person purporting to act in
accordance with this section shall not be called in question on the ground
that the occasion for him to act or for his appointment had not arisen or that
the occasion for him to act had passed or his appointment had ceased to have
effect.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 18
Termination of appointment
SECT
18. (1) The Governor-General may terminate the appointment of a member by
reason of misbehaviour or physical or mental incapacity.
(2) If -
(a) a member becomes bankrupt, applies to take the benefit of any law for
the relief of bankrupt or insolvent debtors, compounds with his creditors or
makes an assignment of his remuneration or of part of his property for their
benefit;
(b) a full-time member engages in paid employment outside the duties of his
office without the consent of the Ministerial Council;
(c) a full-time member is absent from duty, except on leave granted by the
Ministerial Council in accordance with sub-section 15 (1), for 14 consecutive
days, or for 28 days in any period of 12 months;
(d) a part-time member is absent, except on leave granted by the Ministerial
Council in accordance with sub-section 15 (2), from 3 consecutive meetings of
the Commission; or
(e) a member fails to comply with his obligations under section 19, 47, 48
or 49,
the Governor-General may terminate the appointment of that member.
(3) The powers of the Governor-General under this section shall be exercised
only in accordance with advice that is consistent with resolutions of the
Ministerial Council.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 19
Register of financial interests
SECT
19. (1) In this section, "member" means -
(a) a member or an acting member of the Commission; or
(b) a member of the staff of the Commission.
(2) For the purposes of this section -
(a) a person has a financial interest if, and only if, the person -
(i) is a director of a body corporate;
(ii) has a relevant interest in securities other than securities of a
government, of a government authority or of a local government authority; or
(iii) has a relevant interest in a futures contract; and
(b) the question whether a person has a relevant interest in securities, or
in a futures contract, shall be determined as prescribed.
(3) The Commission shall maintain a register, to be known as the Register of
Financial Interests (in this section referred to as the "Register"), in
accordance with the prescribed form, for the purposes of this section.
(4) The Commission shall appoint a member of the staff of the Commission (in
this section referred to as the "responsible officer") to be the person
responsible for making entries in the Register in accordance with this
section.
(5) Where a person who has a financial interest becomes a member, he shall,
within 7 days after the day on which he becomes a member, if he has not
already done so, cause written particulars of the interest to be delivered to
the responsible officer.
(6) Where there is a change in a financial interest of a member, he shall,
within 7 days after the day on which the change occurs, cause written
particulars of the change to be delivered to the responsible officer.
(7) A person shall be deemed not to have contravened sub-section (5) or (6)
if he establishes that -
(a) he was not, at the time when he became a member, aware that he had a
financial interest or he was not, at the time when the change occurred, aware
of the change, as the case may be; and
(b) he caused written particulars of the financial interest or of the
change, as the case may be, to be delivered to the responsible officer within
7 days after the day on which he became aware that he had the financial
interest or that the change had occurred, as the case may be.
(8) For the purposes of this section, where a member commences or ceases to
have a financial interest, there shall be deemed to be a change in that
financial interest of the member.
(9) Where a member is required by this section to cause to be delivered to
the responsible officer particulars of a financial interest, or particulars of
a change in a financial interest, the particulars to be so delivered shall
include -
(a) the date on which he commenced or ceased to have the financial interest
or on which the change occurred; and
(b) particulars of the nature of the financial interest and, in the case of
a financial interest being a relevant interest in securities, or in a futures
contract, particulars of the extent of that relevant interest.
(10) Where, in accordance with this section, particulars of a financial
interest, or of a change in a financial interest, of a member are delivered to
the responsible officer, that officer shall cause the particulars, or such of
the particulars as are appropriate having regard to the form of the Register,
to be entered in the Register as particulars of a financial interest, or of a
change in a financial interest, of that member.
(11) The Commission shall keep the Register at the principal place of
business of the Commission and shall ensure that the Register is open for
public inspection during normal business hours without payment of any fee.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 20
Meetings of Commission
SECT
20. (1) The Chairman may, at any time, convene a meeting of the Commission
to be held at a place and time determined by him.
(2) The Chairman shall convene such meetings of the Commission as, in his
opinion, are necessary for the efficient performance of its functions.
(3) The Chairman shall, on receipt of a request in writing signed by a
majority of the members, convene a meeting of the Commission.
(3A) If all the members of the Commission who are neither absent from duty
nor absent from Australia so agree, a meeting, or a part of a meeting, of the
Commission may be held by means of any of, or by means of a combination of any
2 or more of, the following methods of communication:
(a) telephone;
(b) closed-circuit television;
(c) a method or methods of communication approved by the Commission for the
purposes of that meeting.
(3B) All the members of the Commission who take part in a meeting held as
mentioned in sub-section (3A) shall be deemed, for the purposes of this
section, to have been present at the meeting, notwithstanding that they were
not all present at the same place at the time when the meeting was so held.
(4) At a meeting of the Commission, a quorum is formed -
(a) where the Commission consists of more than 3 members - by 3 members; or
(b) in any other case - by 2 members.
(5) The Chairman shall preside at all meetings of the Commission at which he
is present.
(6) If the Chairman is not present at a meeting of the Commission but the
Deputy Chairman is present, the Deputy Chairman shall preside.
(7) Questions arising at a meeting of the Commission shall be ed
determined by a majority of the votes of the members present at the meeting.
(8) The member presiding at a meeting of the Commission has a deliberative
vote but does not have a casting vote.
(9) In relation to a time when a person is acting as Chairman, ces
references in this section to the Chairman shall be read as references on. to
that person.
(10) In relation to a time when a person is acting as Deputy Chairman,
references in this section to the Deputy Chairman shall be read as references
to that person.
(11) In this section, a reference to a member shall be read as including a
reference to an acting member.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 21
Divisions of Commission
SECT
21. (1) The Commission may, by resolution, direct that the functions or
powers of the Commission in relation to a matter shall be performed or
exercised by a Division of the Commission, constituted by such members (not
being less than 2 in number) as are specified in the resolution.
(1A) A resolution under sub-section (1) constituting a Division of the
Commission shall, if the Chairman is not a member of the Division, specify a
member of the Division as the Chairman of that Division.
(2) Where the Commission has given a direction under sub-section (1), it
may, by resolution, at any time before the Division of the Commission
specified in the direction has made a determination in relation to the matter,
revoke the direction or amend the direction in relation to the membership of
the Division or in any other respect, and where the membership of a Division
of the Commission is changed, the Division as constituted after the change may
complete the determination of the matter.
(3) The Commission shall -
(a) as soon as practicable after it gives a direction under sub-section (1)
or amends a direction under sub-section (2), furnish to the Ministerial
Council particulars of the direction or of the amendment, as the case may be;
and
(b) as soon as practicable after it revokes a direction under sub-section
(2), notify the Ministerial Council of the revocation of the direction.
(4) For the purposes of the determination of a matter specified in a
direction given under sub-section (1) -
(a) the Commission shall be deemed to consist of the Division of the
Commission specified in the direction;
(b) a meeting of the Division shall be deemed to be a meeting of the
Commission; and
(c) if the Chairman is not a member of the Division, the member specified by
the Commission under sub-section (1A) shall be deemed to be the Chairman.
(4A) If all the full-time members of the Commission who are -
(a) members of a particular Division; and
(b) neither absent from duty nor absent from Australia,
so agree, a meeting, or a part of a meeting, of that Division may be held by
means of any of, or by means of a combination of any 2 or more of, the
following methods of communication:
(c) telephone;
(d) closed-circuit television;
(e) a method or methods of communication approved by that Division for the
purposes of that meeting.
(4B) All the members of a particular Division of the Commission who take
part in a meeting held as mentioned in sub-section (4A) shall be deemed, for
the purposes of this section, to have been present at the meeting,
notwithstanding that they were not all present at the same place at the time
when the meeting was so held.
(5) Notwithstanding sub-section 20 (4), at a meeting of a Division of the
Commission, 2 members form a quorum.
(6) A Division of the Commission may perform functions or exercise powers of
the Commission notwithstanding that another Division of the Commission is
performing functions or exercising powers of the Commission at the same time.
(7) In relation to a time when a person is acting as Chairman, a reference
in this section to the Chairman shall be read as a reference to that person.
(8) In this section, a reference to a member shall be read as including a
reference to an acting member.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- PART IV
PART IV - STAFF OF COMMISSION
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 22
Employees
SECT
22. The Commission may engage such employees as it thinks necessary for the
purposes of this Act.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 23
Terms and conditions of employment
SECT
23. (1) The terms and conditions of employment of employees engaged in
accordance with section 22 are such as are, subject to the approval of the
Public Service Board, determined by the Commission.
(2) In this section, "terms and conditions" include conditions with respect
to the duration of employment or with respect to dismissal from employment.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 24
Arrangements relating to staff
SECT
24. (1) The Commission may arrange with the Secretary of any Department of
the Australian Public Service, or with a body established by an Act, for the
services of officers or employees of the Department or of the body to be made
available to the Commission.
(2) The Commission may enter into an arrangement with the appropriate
authority of a State or of a Territory for the services of officers or
employees of the Public Service of the State or Territory or of an authority
of the State or Territory to be made available to the Commission.
(3) The Commission may arrange for the services of a member of the staff of
the Commission to be made available to a State or Territory or to an authority
of a State or of a Territory for purposes of matters of policy and
administration with respect to laws of the State or Territory relating to
companies or the regulation of the securities industry.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 25
Engagement of consultants
SECT
25. (1) The Commission may engage persons to furnish advice to, or perform
services for, the Commission otherwise than as employees of the Commission.
(2) The terms and conditions of engagement of persons engaged under
sub-section (1) are such as are determined by the Commission.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- PART V
PART V - FINANCE
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 26
Payments to Commission by Commonwealth
SECT
26. There shall be paid to the Commission, out of moneys appropriated by the
Parliament for the purposes of the Commission, such amounts as are payable in
accordance with directions from time to time given by the Minister for
Finance.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 27
Payments to Commission by States or Territories
SECT
27. The Commission may receive moneys paid to it by a State or by a
Territory.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 28
Moneys of Commission
SECT
28. The moneys of the Commission shall consist of -
(a) moneys paid to the Commission under section 26;
(b) moneys received by the Commission in accordance with section 27; and
(c) any other moneys paid to the Commission.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 29
Application of moneys
SECT
29. (1) Subject to sub-section (2), the moneys of the Commission may be
applied only -
(a) in payment or discharge of the expenses, charges, obligations or
liabilities incurred or undertaken by the Commission, by the Accounting
Standards Review Board or by the Companies and Securities Law Review Committee
in or in connection with the performance of the functions or the exercise of
the powers of the Commission or that Board, or the performance of the
functions of that Committee, as the case may be;
(aa) in payment or discharge of the expenses, charges, obligations or
liabilities incurred or undertaken by the Ministerial Council secretariat in
the performance of its function of giving assistance to the Ministerial
Council;
(b) in payment of any remuneration or allowances payable under this Act or
payable to members of the Accounting Standards Review Board or of the
Companies and Securities Law Review Committee;
(ba) without limiting the generality of paragraph (a):
(i) in connection with the provision, in accordance with subsection 14
(7), of superannuation benefits within the meaning of that subsection; and
(ii) in making, in respect of a full-time member who is not an eligible
employee within the meaning of the Superannuation Act 1976, contributions
under a superannuation or retirement scheme, however established; and
(c) in making any payments that the Commission is authorized or required to
make to the Commonwealth, a State or a Territory in accordance with the
Agreement or in accordance with arrangements made under the Agreement.
(2) Moneys of the Commission not immediately required for the purposes of
the Commission may be invested -
(a) on deposit with an approved bank; or
(b) in any other manner approved by the Ministerial Council.
(3) This section has effect subject to any provision made by a law of the
Commonwealth, a law of a State or a law of a Territory passed or made in
accordance with the Agreement in relation to moneys that vest in the
Commission under that law.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 30
Bank Accounts
SECT
30. (1) The Commission may open and maintain an account or accounts with an
approved bank or approved banks and shall maintain at all times at least one
such account.
(2) The Commission shall pay all moneys received by it into an account
referred to in this section.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 31
Estimates
SECT
31. (1) The Commission shall prepare estimates, in such form as the
Ministerial Council directs, of its receipts and expenditure for each
financial year and, if the Ministerial Council so directs, for any other
period specified by the Ministerial Council, and the Commission shall submit
estimates so prepared to the Ministerial Council not later than such date as
the Ministerial Council directs.
(2) Except with the consent of the Ministerial Council, the moneys of the
Commission shall not be expended otherwise than in accordance with estimates
of expenditure approved by the Ministerial Council.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 32
Accounts and records
SECT
32. The Commission shall cause to be kept proper accounts and records of the
transactions and affairs of the Commission and shall do all things necessary
to ensure that all payments out of its moneys are correctly made and properly
authorized and that adequate control is maintained over the assets of, or in
the custody of, the Commission and over the incurring of liabilities by the
Commission.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 33
Limitation on contracts and leases
SECT
33. Except as otherwise provided by the regulations, the Commission shall
not, without the approval of the Ministerial Council -
(a) enter into a contract under which the Commission is to pay or receive an
amount exceeding $50,000 or, if a higher amount is prescribed, that higher
amount; or
(b) enter into a lease of land for a period exceeding 10 years.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 34
Audit
SECT
34. (1) The Auditor-General shall inspect and audit the accounts and records
of financial transactions of the Commission and records relating to assets of,
or in the custody of, the Commission and shall forthwith draw the attention of
the Ministerial Council to any irregularity disclosed by the inspection and
audit that is, in the opinion of the Auditor-General, of sufficient importance
to justify his so doing.
(2) The Auditor-General may, at his discretion, dispense with all or any
part of the detailed inspection and audit of any accounts or records referred
to in sub-section (1).
(3) The Auditor-General shall, at least once in each year, report to he the
Ministerial Council the results of the inspection and audit carried under out
under sub-section (1).
(4) The Auditor-General or a person authorized by him is entitled at all
reasonable times to full and free access to all accounts and records of the
Commission relating directly or indirectly to the receipt or payment of moneys
by the Commission or to the acquisition, receipt, custody or disposal of
assets by the Commission.
(5) The Auditor-General or a person authorized by him may make copies of, or
take extracts from, any such accounts or records.
(6) The Auditor-General or a person authorized by him may require any person
to furnish him with such information in the possession of the person, or to
which the person has access, as the Auditor-General or authorized person
considers necessary for the purposes of the functions of the Auditor-General
under this Act, and the person shall comply with the requirement.
(7) A person who contravenes sub-section (6) is guilty of an offence and is
punishable, upon conviction, by a fine not exceeding $200.
(8) This section does not apply in relation to accounts and records
maintained by an authority of a State or an officer of a State or of such an
authority.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 35
Liability to taxation
SECT
35. (1) Subject to sub-section (2), the Commission is not subject to
taxation under any law of the Commonwealth or of a State or Territory.
(2) The regulations may provide that sub-section (1) does not apply in
relation to taxation under a specified law.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- PART VI
PART VI - HEARINGS BEFORE COMMISSION
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 36
Hearings before Commission
SECT
36. (1) The Commission may hold hearings for the purpose of the performance
of any of its functions or the exercise of any of its powers.
(2) Subject to this section, where the Commission is required or decides to
hold a hearing, the Commission may either direct that the hearing take place
in public or direct that the hearing take place in private.
(3) Subject to sub-sections (4) and (6), if a person who is entitled under
an Act or a State Act to be afforded the opportunity by the Commission to
appear at a hearing before the Commission requests that the hearing take place
in public, the Commission shall direct that the hearing take place in public.
(4) Where the Commission holds a hearing under a provision of an Act or a
State Act that requires the hearing to take place in private, the Commission
shall direct that the hearing take place in private.
(5) Where the Commission directs that a hearing to be held by it take place
in private, the Commission may give directions as to the persons who may be
present at the hearing.
(6) Where, at a hearing by the Commission that is held in public, the
Commission is satisfied that it is desirable to do so by reason of the
confidential nature of any evidence or matter or for any other reason, the
Commission may -
(a) direct that the hearing or a part of the hearing take place in private
and give directions as to the persons who may be present; or
(b) give directions preventing or restricting the publication of evidence
given before the Commission or of matters contained in documents lodged with
the Commission.
(7) Nothing in any direction given by the Commission under sub-section (5)
or paragraph (6) (a) prevents the presence at a hearing of -
(a) a person who is entitled under an Act or a State Act to be afforded the
opportunity to appear at that hearing;
(b) a person representing, pursuant to sub-section 38 (2), a person referred
to in paragraph (a); or
(c) a person representing, pursuant to sub-section 38 (2), a person who, by
reason of a direction given by the Commission under sub-section (5) or
paragraph (6) (a), is entitled to be present at the hearing.
(8) Where the Commission directs that a hearing or part of a hearing before
the Commission take place in private, a person (other than a member or an
acting member, or a member of the staff of the Commission approved by the
Commission) shall not be present at the hearing unless he is entitled to be
present by virtue of the direction or by virtue of sub-section (7).
Penalty: $1,000 or imprisonment for 3 months.
(9) Where the Commission is required by an Act or a State Act to afford a
person an opportunity to appear at a hearing before the Commission and to make
submissions and give evidence to the Commission, the Commission shall appoint
a date, time and place for the hearing and cause notice in writing of the
date, time and place to be given to the person.
(10) Where a person referred to in sub-section (9) does not wish to appear
before the Commission, he may, before the date of the hearing, lodge with the
Commission in writing any submissions that he wishes the Commission to take
into account in relation to the matter.
(11) The Commission shall take into account any submission made or lodged or
evidence given to the Commission when making any decision on the matter to
which the submission or evidence relates.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 37
Power to summon witnesses and take evidence
SECT
37. (1) A member or an acting member may summon a person to appear before
the Commission at a hearing to give evidence and to produce such documents (if
any) as are referred to in the summons.
(2) The Commission may, at a hearing, take evidence on oath or affirmation
and for that purpose a member or an acting member may -
(a) require a person appearing at the hearing to give evidence either to
take an oath or make an affirmation; and
(b) administer an oath or affirmation to a person so appearing at the
hearing.
(3) The oath or affirmation to be taken or made by a person for the purposes
of this section is an oath or affirmation that the evidence he will give will
be true.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 38
Proceedings at hearings
SECT
38. (1) At a hearing before the Commission -
(a) the proceedings shall be conducted with as little formality and
technicality, and with as much expedition, as the requirements of any Act or
State Act and a proper consideration of the matters before the Commission
permit;
(b) the Commission is not bound by the rules of evidence;
(c) the Commission may, upon such conditions as it thinks fit, permit a
person to intervene in the proceedings;
(d) the Commission shall observe the rules of natural justice;
(e) except in the case of a hearing before a Division of the Commission -
the provisions of section 20 (other than sub-sections 20 (3A) and (3B)) apply,
so far as they are capable of application, as if the hearing were a meeting of
the Commission; and
(f) in the case of a hearing before a Division of the Commission - the
provisions of section 20 (other than sub-sections 20 (3A) and (3B)) and of
section 21 (other than sub-section 21 (4A) and (4B)) apply, so far as they are
capable of application, as if the hearing were a meeting of that Division.
(2) At a hearing before the Commission -
(a) a natural person may appear in person or may be represented by an
employee of the person approved by the Commission;
(b) a body corporate may be represented by an employee, or by a director or
other officer, of the body corporate approved by the Commission;
(c) an unincorporated association of persons or a member of an
unincorporated association of persons may be represented by a member or
officer of the association approved by the Commission; and
(d) any person may be represented by a barrister or solicitor of the Supreme
Court of a State or Territory or of the High Court.
(3) A person who attends at a hearing before the Commission pursuant to a
summons issued under section 37 is entitled to be paid -
(a) in the case where the summons was issued at the request of a person - by
that person; or
(b) in any other case - by the Commission,
such allowances and expenses as are provided for by the regulations.
(4) The Commission may permit a person appearing as a witness before the
Commission to give evidence by tendering, and, if the Commission thinks fit,
verifying by oath or affirmation, a written statement.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 39
Failure of witnesses to attend and answer questions
SECT
39. (1) A person served, as prescribed, with a summons to appear as a
witness at a hearing before the Commission shall not, without reasonable
excuse -
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day unless excused, or released from further
attendance, by a member or an acting member.
(2) A person appearing as a witness at a hearing before the Commission shall
not, without reasonable excuse -
(a) when required pursuant to section 37 either to take an oath or make an
affirmation - refuse or fail to comply with the requirement;
(b) refuse or fail to answer a question that he is required to answer by the
member or acting member presiding at the hearing; or
(c) refuse or fail to produce a document that he was required to produce by
a summons under this Act served on him as prescribed.
(3) A person shall not, at a hearing before the Commission, give evidence
that is false or misleading.
(4) Where -
(a) a duly qualified legal practitioner is required to answer a question or
produce a document at a hearing before the Commission; and
(b) the answer to the question would disclose, or the document contains, a
privileged communication made by or to the legal practitioner in his capacity
as a legal practitioner,
the legal practitioner is entitled to refuse to comply with the requirement
unless the person to whom or by whom the communication was made agrees to the
legal practitioner complying with the requirement but, where the legal
practitioner refuses to comply with the requirement, he shall, if so required
by the member or acting member presiding at the hearing and if he knows the
name and address of the person to whom or by whom the communication was made,
forthwith furnish that name and address in writing to the Commission.
(5) It is not a reasonable excuse for the purposes of sub-section (2) for a
person to refuse or fail to answer a question put to him that the answer might
tend to incriminate him but, where the person claims, before answering the
question, that the answer might tend to incriminate him, neither the question
nor the answer is admissible in evidence against him in criminal proceedings
other than proceedings for a contravention of sub-section (3) or proceedings
in relation to a charge of perjury in respect of the answer.
(6) A person who contravenes sub-section (1), (2), (3), or (4) is guilty of
an offence and is punishable, upon conviction, by a fine not exceeding $1,000
or imprisonment for a period not exceeding 3 months.
(7) Where the Commission is satisfied that -
(a) a person served, as prescribed, with a summons to appear as a witness at
a hearing before the Commission has, without reasonable excuse, failed to
attend as required by paragraph (1) (a) or (b); or
(b) a person appearing as a witness at a hearing before the Commission has,
without reasonable excuse -
(i) when required pursuant to section 37 either to take an oath or make an
affirmation;
(ii) when required by the member or acting member presiding at the hearing
to answer a question; or
(iii) when required to produce a document by a summons under this Act
served on him as prescribed,
refused or failed to comply with the requirement,
a member or acting member may, by instrument in writing, certify the failure
to attend or the refusal or failure to comply with the requirement, as the
case may be, to the Supreme Court of a State or Territory.
(8) Where a certificate is given under sub-section (7), the Supreme Court
may inquire into the case and, if it is satisfied that the person to whom the
certificate relates has, without reasonable excuse, failed to attend or
refused or failed to comply with a requirement as mentioned in the certificate
-
(a) may order the person to attend or to comply with the requirement at a
hearing before the Commission to be held at a time and place specified in the
order; or
(b) may punish the person in the same manner as if he had been guilty of
contempt of that Court and, if it thinks fit, also make an order under
paragraph (a).
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 40
Contempt of Commission
SECT
40. A person shall not -
(a) insult a member or an acting member in the performance of his functions
or the exercise of his powers as a member or acting member at a hearing before
the Commission;
(b) interrupt a hearing before the Commission;
(c) create a disturbance, or take part in creating or continuing a
disturbance, in or near a place where the Commission is holding a hearing; or
(d) do any other act that would, if the Commission were a court of record,
constitute contempt of that court.
Penalty: $1,000 or imprisonment for 3 months.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 41
Protection of members etc.
SECT
41. (1) A member or an acting member has, in the performance of his
functions or the exercise of his powers as a member or acting member in
relation to a hearing before the Commission, the same protection and immunity
as a Justice of the High Court.
(2) A barrister, solicitor or other person appearing on behalf of a person
at a hearing before the Commission has the same protection and immunity as a
barrister has in appearing for a party in proceedings in the High Court.
(3) Subject to this Act, a person summoned to attend or appearing before the
Commission as a witness has the same protection as a witness in proceedings in
the High Court.
(4) The Commission, a person appointed for the purposes of this Act or of
any other prescribed Act, a member of the staff of the Commission or a person
authorized to perform or exercise any function or power of the Commission or
any function or power on behalf of the Commission is not liable to an action
or other proceeding for damages for or in relation to an act done or omitted
to be done in good faith in performance or purported performance of any
function, or in exercise or purported exercise of any power, conferred or
expressed to be conferred by or under any Act or State Act.
(5) A member of the Ministerial Council is not liable to an action, suit or
proceeding for or in relation to an act done or omitted to be done by the
Ministerial Council in good faith in performance or purported performance of
any function, or in exercise or purported exercise of any power, conferred on
that Council by or under any Act.
(6) A member of the Ministerial Council is not liable to an action, suit or
proceeding for or in relation to an act done or omitted to be done by the
member in the exercise of a discretion under any Act that the Ministerial
Council has, pursuant to clause 25 of the Agreement, authorized him to
exercise.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 42
Hearings deemed to be judicial proceedings
SECT
42. A hearing before the Commission shall, for the purposes of Part III of
the Crimes Act 1914, be deemed to be a judicial proceeding.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- PART VII
PART VII - MISCELLANEOUS
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 43
Trust moneys
SECT
43. (1) The Commission may accept gifts, bequests and devises made to the
Commission on trust and may act as trustee of moneys or other property vested
in the Commission on trust.
(2) The Commission shall ensure that any moneys received or held by the
Commission on trust are paid into an account referred to in section 30 that
does not, or accounts referred to in that section that do not, contain any
moneys of the Commission not held on trust.
(3) Notwithstanding section 29 -
(a) moneys or other property held by the Commission on trust shall be
applied or dealt with only in accordance with the powers and duties of the
Commission as trustee; and
(b) moneys held by the Commission on trust may be invested -
(i) in any manner in which the Commission is authorized to invest those
moneys by the terms of the trust; or
(ii) in any manner in which trust moneys may, for the time being, be
invested under law,
but not otherwise.
(4) Section 32 has effect as if -
(a) the reference in that section to the transactions and affairs of the
Commission included a reference to transactions and affairs relating to moneys
or property received or held by the Commission on trust; and
(b) the reference in that section to payments out of the moneys of the
Commission included a reference to payments out of moneys held by the
Commission on trust.
(5) Section 34 has effect as if -
(a) the reference in sub-section 34 (1) to financial transactions of the
Commission included a reference to transactions relating to moneys received or
held by the Commission on trust;
(b) the reference in sub-section 34 (4) to the receipt or payment of moneys
by the Commission included a reference to the receipt or payment by the
Commission of moneys received or held by the Commission on trust; and
(c) the reference in sub-section 34 (4) to the acquisition, receipt, custody
or disposal of assets by the Commission included a reference to the
acquisition, receipt, custody or disposal by the Commission of assets received
or held by the Commission on trust.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 43A
Accounting Standards Review Board
SECT
43A. For the purpose of the performance of the functions and the exercise of
the powers of the Accounting Standards Review Board, the Commission shall
provide to the Board such staff and facilities as are approved by the
Ministerial Council.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 44
Companies and Securities Law Review Committee
SECT
44. For the purpose of the performance of the functions of the Companies and
Securities Law Review Committee, the Commission shall provide to the Committee
such staff and facilities as are approved by the Ministerial Council.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 44A
Provision of staff and facilities to Ministerial Council
SECT
44A. For the purpose of the performance of the functions of the Ministerial
Council, the Commission shall provide to the Ministerial Council such staff
and facilities as the Ministerial Council requires.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 45
Delegation by Commission
SECT
45. *2* (1) The Commission may, either generally or as otherwise provided by
the instrument of delegation, by writing under its common seal, delegate to
any person, being an authority of a State or Territory or an officer of a
State or Territory or of such an authority, all or any functions or powers
that are conferred or expressed to be conferred on it by or under any Act or
State Act (other than functions or powers the delegation of which is
prohibited by the Act or State Act concerned.
(2) The Commission may delegate under sub-section (1) a function or power of
the Ministerial Council that the Commission is authorized by that Council to
perform or exercise other than a function or power that the Ministerial
Council has directed the Commission not to delegate.
(3) A delegation under sub-section (1) may be to -
(a) a specified person (whether a natural person or a body corporate); or
(b) the person for the time being holding a specified office under an Act or
a State Act or the person for the time being occupying a position in the
Public Service of the Commonwealth or of a State, being a position that is
specified in the instrument of delegation.
(4) A person to whom a function or power has been delegated under
sub-section (1) may -
(a) in the case of a natural person - by writing under his hand; or
(b) in the case of a body corporate - by writing under its common or
official seal,
authorize another person to perform the function or exercise the power so
delegated.
(5) An authority under sub-section (4) may be given to -
(a) a specified person; or
(b) the person for the time being occupying a position in the Public Service
of the Commonwealth or of a State, being a position that is specified in the
instrument by which the authority is given.
(6) Any act or thing done in the performance of a function or the exercise
of a power by a person to whom that function or that power has been delegated
by the Commission under sub-section (1) or by a person authorized by a
delegate of the Commission under sub-section (4) to perform that function or
exercise that power has the same force and effect as if it had been done by
the Commission but, for the purposes of any prescribed Act, shall not be taken
to have been done by the Commission.
(7) Where, under any Act or State Act that confers or is expressed to confer
functions or powers on the Commission, the performance of a function or the
exercise of a power by the Commission is dependent upon the opinion, belief or
state of mind of the Commission in relation to a matter and that function or
power has been delegated under sub-section (1), that function or power may be
performed or exercised by the delegate or by a person authorized by the
delegate under sub-section (4) upon the opinion, belief or state of mind of
the delegate or of the authorized person, as the case may be, in relation to
that matter.
(8) A delegation under sub-section (1) does not prevent the performance of a
function or the exercise of a power by the Commission.
(9) The giving of an authority under sub-section (4) does not prevent the
performance of a function or the exercise of a power by the person by whom the
authority was given.
(10) Where a person purports to perform a function or exercise a power
conferred or expressed to be conferred on the Commission by or under any Act
or any State Act, it shall be presumed, unless the contrary is established,
that the person is duly authorized by a delegation under sub-section (1), or
by an authority under sub-section (4) given pursuant to such a delegation, to
perform the function or exercise the power.
(11) A document purporting to be signed by a person as a delegate of the
Commission shall be deemed, unless the contrary is established, to have been
signed by such a delegate and to have been so signed pursuant to the
performance of a function or the exercise of a power duly delegated to the
person by the Commission.
(12) A document purporting to be signed by a person authorized by a delegate
of the Commission to sign the document shall be deemed, unless the contrary is
established, to have been signed by a person so authorized and to have been so
signed pursuant to the performance of a function or the exercise of a power
that he is duly authorized by such a delegate to perform or exercise.
(13) Where a function or power of the Commission is, or is to be, performed
or exercised by a person to whom the Commission has delegated the function or
power under sub-section (1) or by a person authorized by such a delegate under
sub-section (4) to perform the function or exercise the power -
(a) Part VI (other than paragraph 38 (1) (e) applies for the purpose of the
performance of the function or the exercise of the power by the person in like
manner as it would apply if the function were being performed or the power
were being exercised by the Commission; and
(b) for the purpose of the application of that Part in accordance with
paragraph (a), references in that Part to the Commission or to a member or
acting member other than -
(i) the references to the Commission first and second occurring in
sub-section 36 (3) and first, second and third occurring in sub-section 36
(9); and
(ii) the reference to the Commission in paragraph 38 (3) (b), shall be
construed as references to the person.
*2*Section 45 is amended by section 162 of the Companies and Securities
Legislation (Miscellaneous Amendments) Act 1985. Section 162 provides as
follows:
"162. Section 45 of the Principal Act is amended -
(a) by inserting after sub-section (1) the following sub-section:
'(1A) Without limiting the generality of sub-section (1), the Commission
may, either generally or as otherwise provided by the instrument of
delegation, by writing under its common seal, delegate to a member or acting
member all or any -
(a) powers of the Commission under Part VI; or
(b) powers that relate to the holding of hearings and that are conferred,
or expressed to be conferred, on the Commission by or under a State Act (other
than powers the delegation of which is prohibited by the State Act
concerned).';
(b) by inserting after sub-section (6) the following sub-section:
'(6A) Any act or thing done in the exercise of a power by a person to whom
that power has been delegated by the Commission under sub-section (1A) shall
be deemed to have been done by the Commission.';
(c) by inserting in sub-sections (7), (8), (10) and (13) 'or (1A)' after
'(1)'; and
(d) by omitting from paragraph (13) (a) 'paragraph 38 (1) (e)' and
substituting 'paragraphs 38 (1) (e) and (f)'."
Subsection 2 (1) of the Companies and Securities Legislation (Miscellaneous
Amendments) Act 1985 provides as follows:
"(1) Subject to this section, the provisions of this Act shall come into
operation on such day as is, or on such respective days as are, fixed by
Proclamation."
As at 29 February 1988 no date had been fixed and the amendments are not
incorporated in this reprint.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 46
Directions by Commission
SECT
46. Where the Commission has delegated a function or power to a person under
section 45 -
(a) the Commission may give directions to the delegate with respect to the
performance of that function or the exercise of that power; and
(b) if the delegate has under sub-section 45 (4) authorized another person
to perform that function or exercise that power, the delegate -
(i) shall, if the Commission has given a direction to the delegate under
paragraph (a) with respect to the performance of that function or the exercise
of that power, give a corresponding direction to the other person; and
(ii) may, subject to any direction given to the delegate by the Commission
under paragraph (a), give directions to the other person with respect to the
performance of that function or the exercise of that power.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 47
Secrecy
SECT
47. (1) Subject to this section, a person who is, or has at any time been -
(a) appointed for the purposes of this Act or any other prescribed Act;
(b) engaged as a member of the staff of the Commission; or
(c) authorized to perform or exercise any function or power of the
Commission or any function or power on behalf of the Commission,
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, engaged 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: $5,000 or imprisonment for one year, or both.
(2) Nothing in sub-section (1) precludes a person from -
(a) producing a document to a court in the course of criminal proceedings or
in the course of any proceedings under this Act, any other prescribed Act or
any prescribed State 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 sub-section;
(c) producing a document or divulging or communicating information to a
person to whom, in the opinion of the Commission, 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 Act or State Act to be produced, divulged or
communicated, as the case may be.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 48
Restrictions on dealings in securities and futures contracts
SECT
48. (1) A person who -
(a) is, or has at any time been -
(i) appointed for the purposes of this Act or any other prescribed Act;
(ii) engaged as a member of the staff of the Commission; or
(iii) authorised to perform or exercise any function or power of the
Commission or any function or power on behalf of the Commission; and
(b) has, by reason that the person is, or has at any time been so appointed,
engaged or authorised, information that is not generally available but, if it
were, would be likely materially to affect -
(i) the price of securities; or
(ii) the price for dealing in a futures contract,
shall not -
(c) in a case where sub-paragraph (b) (i) applies - deal in, or cause or
procure any other person to deal in, those securities; or
(d) in a case where sub-paragraph (b) (ii) applies - deal in, or cause or
procure any other person to deal in, that futures contract or a futures
contract of the same kind as that futures contract.
Penalty: $20,000 or imprisonment for 5 years.
(2) Where a person to whom sub-section (1) applies has information as
mentioned in that sub-section and, in contravention of that sub-section -
(a) deals in, or causes or procures another person to deal in, securities;
or
(b) deals in, or causes or procures another person to deal in, a futures
contract,
the first-mentioned person is liable to compensate any other party to the
transaction for any loss sustained by that party by reason of -
(c) 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 when the first-mentioned
transaction took place if the information had been generally available; or
(d) any difference between the price at which that dealing in that futures
contract took place and the price at which it would be likely to have taken
place if the information had been generally available,
as the case may be.
(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 sub-section (2)
or under any other Act or State Act 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 sub-section (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) An action under this section for recovery of compensation for a loss is
not maintainable after the end of the period of 2 years commencing on the day
of completion of -
(a) the transaction in which securities were dealt in and in which the loss
occurred; or
(b) the dealing in a futures contract, being the dealing in which the loss
occurred,
as the case requires.
(6) The Commission may, if the Commission considers it to be in the public
interest to do so, bring an action in the name of and for the benefit of a
person for recovery of compensation for a loss referred to in sub-section (2).
(7) Nothing in sub-section (2) affects any liability that a person may incur
under any other law.
(8) An expression (other than a reference to a futures contract) used -
(a) in sub-paragraph (1) (b) (ii), or paragraph (1) (d), (2) (b), (2) (d) or
(5) (b), of this section; and
(b) in the Futures Industry Act 1986,
has the same meaning in that sub-paragraph or paragraph, as the case may be,
as in that Act.
NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979
- SECT 49
Notification of interests
SECT
49. (1) A person (other than a member or an acting member of the Commission
or a member of the staff of the Commission) who is appointed for the purposes
of this Act or any other prescribed Act or is authorized to perform or
exercise any function or power of the Commission or any function or power on
behalf of the Commission 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 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;
(ca) a futures contract in which the person has a relevant interest;
(cb) a futures contract that is of the same kind as a futures contract in
which the person 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 so inform the Commission in writing.
(2) A member or acting member of the Commission or a member of the staff of
the Commission who, in the course of his official duties is required to
consider any matter relating to -
(a) 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
(b) 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 so inform the Commission in writing.
(3) It is a defence to a prosecution for an offence against this section in
respect of a failure by a person to inform the Commission that he is required
to consider a matter relating to a particular body corporate, a particular
person, particular securities, or a particular futures contract, if the 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 Commission that he was required to consider the first-mentioned matter.
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