National Companies and Securities Commission (State Provisions) Act 1980 (WA)
WESTERN AUSTRALIA.
NATIONAL COMPANIES AND
SECURITIES COMMISSION
(STATE PROVISIONS).
No. 60 of 1980.
AN ACT to make provision for the Operation of the National Companies and Securities Commission in the State.
[Assented to 24 November 1980.]
RE it enacted by the Queen's Most Excellent
Majesty, by and with the advice and consent
of the Legislative Council and the Legislative
Assembly of Western Australia, in this present
Parliament assembled, and by the authority of the
same, as follows:-
| 1. This Act may be cited as the National Companies and Securities Commission (State Provisions) Act 1980. | Short title. |
| Commence- |
| This Act shall come into operation on a date to be fixed by proclamation. | ment. |
2.
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Securities Commission (State Provisions).
Interpre-
| tation. | 3. (1) In this Act, unless the contrary intention appears |
"Agreement" means the agreement made on 22 December 1978 between the Common- wealth 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;
"Commission" means the National Companies and Securities Commission established by the National Companies and Securities Commission Act 1979 of the Common- wealth;
"Commission Act" means the National Companies and Securities Commission Act 1979 of the Commonwealth or, if that Act is amended, that Act as amended and in force for the time being;
"deal" has the same meaning as in the Commission Act;
"functions" includes duties;
"investment contract" has the same meaning
as hi. the Commission Act;
"Ministerial Council" means the body known as the Ministerial Council for Companies and Securities that is established by the Agreement;
"paragraph" means a paragraph of the section or subsection in which the term is used;
"power" includes an authority;
"Schedule" means the Schedule to this Act;
"section" means a section of this Act;
"securities" has the same meaning as in the
Commission Act;
"subparagraph" means a subparagraph of the paragraph in which the term is used;
"subsection" means a subsection of the section in which the term is used.
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Securities Commission (State Provisions).
(2) In this Act
| (a) | a reference to an Act includes a reference to this Act and includes a reference to a regulation or other instrument made under, or by virtue of, an Act; |
| (b) | a reference to a Commonwealth Act includes a reference to a regulation or other instrument made under, or by virtue of, a Commonwealth Act; and |
| (c) | a reference to an Act of another State includes a reference to- |
(i) a regulation or other instrument made under, or by virtue of, an Act of another State;
(ii) an enactment of the Australian Capital Territory, the Northern Territory or an external Territory to which the operation of the Agree- ment extends; and
(iii) a regulation or other instrument made under, or by virtue of, an enactment referred to in sub- paragraph (ii).
(3) 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 subsection (1) or subsection (2) of section 24 of the Commission Act; or |
| (c) | a person engaged under subsection (1) of section 25 of the Commission Act. |
(4) In this Act, unless the contrary intention
appears, where a word or phrase is given a
particular meaning, other parts of speech and
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Securities Commission (State Provisions).
grammatical forms of that word or phrase have
corresponding meanings.
(5) This Act, other than sections 1, 2, 3, 4, 20, 21 and 22, is a relevant Code within the meaning of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Application of Laws) Act 1980.
Commission
| acting uncle/ | 4. (1) In the performance of a function or the |
| represents |
| State Act | exercise of a power under an Act, the Commission |
| Crown. | represents the Crown in right of the State of Western Australia. |
| Commission | (2) The Commission shall perform the functions be conferred on it by or under an Act in accordance with the Agreement and shall comply in all respects with the provisions of the Agreement that are applicable to it in the performance of such functions and the exercise of such powers. |
| to comply | |
| with | and exercise the powers conferred or expressed to |
| Agreement. | |
| (3) Any thing done by the Commission which could have been validly done by the Commission if it were a body established by the law of the State with the powers and functions conferred or expressed to be conferred on the Commission by laws of the State, or if it were a delegate of such a body, shall be valid and effective for the purposes of the law of the State. |
No proceedings lie against the Commission to restrain it from acting beyond its capacity or powers if the act or proposed act to which the proceedings relate is one to which subsection (3) applies or would apply.
(4)
Judicisl
| notice. | 5. (1) 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. |
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Securities Commission (State Provisions).
(2) 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.
(3) In this section, a reference to a court shall be construed as including a reference to
| (a) | a judge of a court; and |
| (b) | any other person authorized by law or by consent of parties to receive evidence, |
and, in relation to a person referred to in paragraph (b), the reference to taking judicial notice shall be construed as a reference to taking the like notice as would be taken by a court.
| 6. (1) A member or an acting member of the | Protection of |
| members, |
| Commission has, in the performance of his functions | etc. |
| or the exercise of his powers as such a member or acting member in relation to a hearing before the Commission held for the purposes of the performance of a function or the exercise of a power conferred or expressed to be conferred on it by or under an Act, the same protection and immunity as a Justice of the High Court of Australia. |
A barrister, solicitor or other person appearing on behalf of a person at a hearing referred to in subsection (1) has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court of Australia.
(2)
Subject to this Act, a person summoned to attend, or appearing before, the Commission at a hearing referred to in subsection (1) as a witness has the same protection as a witness in proceedings in the High Court of Australia.
(3)
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Securities Commission (State Provisions).
(4)
The Commission, a person appointed for the purposes of a prescribed Act, the Commission Act, or any Commonwealth Act that is a prescribed Act for the purposes of subsection (4) of section 41 of the Commission 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 an Act.
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 an 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 member in the exercise of a discretion under an Act that the Ministerial Council has, pursuant to clause 25 of the Agreement, authorized him to exercise.
(6)
Hearings
| before | 7. (1) The Commission may hold hearings for |
| Commission | the purpose of the performance of a function or the exercise of a power conferred or expressed to be conferred on it by or under an Act. |
| (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. |
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Securities Commission (State Provisions).
(3) Subject to subsections (4) and (6), if a person who is entitled under an 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 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 subsection (5) or paragraph (a) of subsection (6) prevents the presence at a hearing of
| (a) | a person who is entitled under an Act to be afforded the opportunity to appear at that hearing; |
| (b) | a person representing, pursuant to sub- section (2) of section 9, a person referred to in paragraph (a); or |
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Securities Commission (State Provisions).
| (c) | a person representing, pursuant to sub- section (2) of section 9, a person who, by reason of a direction given by the Commission under subsection (5) or para- graph (a) of subsection (6), 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 of the Commission, 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 subsection (7).
Penalty: $1 000 or imprisonment for 3 months.
Where the Commission is required by an 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.
(9)
(10) Where a person referred to in subsection (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.
Power to
| summon | 8. (1) A member or an acting member of the the Commission at a hearing held for the purpose of the performance of a function or the exercise of |
| witnesses | |
| and take | Commission may summon a person to appear before |
| evidence. |
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Securities Commission (State Provisions).
a power conferred on it by or under an Act to give evidence and to produce such documents (if any) as are referred to in the summons.
(2) The Commission may, at a hearing referred to in subsection (1), take evidence on oath or affirmation and for that purpose a member or an acting member of the Commission 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 answers he will give to the questions asked him will be true.
(4) The preceding provisions of this section have effect notwithstanding anything to the contrary in the Evidence Act 1906.
Proceedings
| 9. (1) At a hearing before the Commission held for the purpose of the performance of a function or the exercise of a power conferred on it by or under an Act | at hearings. |
| (a) | the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of that 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; and |
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Securities Commission (State Provisions).
| (e) | the proceedings shall so far as applicable be conducted as if the hearing were a meeting of the Commission. |
(2) At a hearing before the Commission referred to in subsection (1)-
| (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 or of the Supreme Court of another State or of a Territory or of the High Court. |
(3) A person who attends at a hearing before the Commission pursuant to a summons issued under section 8 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.
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Securities Commission (State Provisions).
Failure of
| 10. (1) A person served, as prescribed, with a | witnesses to attend and |
| summons to appear as a witness at a hearing before | answer questions. |
| the Commission held for the purpose of the performance of a function or the exercise of a power conferred on it by or under an Act 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 attend- ance, by a member or an acting member of the Commission. |
(2) A person appearing as a witness at a hearing referred to in subsection (1) shall not, without reasonable excuse
| (a) | when required pursuant to section 8 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 of the Commission presiding at the hearing; or |
| (c) | refuse or fail to produce a document that he was required to produce by a summons served on him as prescribed. |
(3) A person shall not, at a hearing referred to in subsection (1), 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 referred to in subsection (1); 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, |
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Securities Commission (State Provisions).
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 of the Commission 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.
It is not a reasonable excuse for the purposes of subsection (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 subsection (3) or proceedings in relation to a charge of perjury in respect of the answer.
(5)
(6) A person who contravenes subsection (1), subsection (2), subsection (3) or subsection (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 three 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 referred to in subsection (1) has, without reasonable excuse, failed to attend as required by paragraph (a) or paragraph (b) of subsection (1); or |
| (b) | a person appearing as a witness at a hearing referred to in subsection (1) has, without reasonable excuse- |
(i) when required pursuant to section 8 either to take an oath or make an affirmation;
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Securities Commission (State Provisions).
(ii) when required by the member or acting member of the Commission presiding at the hearing to answer a question; or
(iii) when required to produce a document by a summons served on him as prescribed,
refused or failed to comply with the
requirement,
a member or acting member of the Commission 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.
(8) Where a certificate is given under subsection (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 the Court and, if it thinks fit, also make an order under paragraph (a). |
Contempt of
| 11. A person shall not | Commission. |
| (a) | insult a member or an acting member of the Commission in the performance of his functions or the exercise of his powers as such a member or acting member at a hearing before the Commission held for the purposes of the performance of a function or the exercise of a power conferred on it by or under an Act; |
(b) interrupt such a hearing;
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Securities Commission (State Provisions).
| (c) | create a disturbance or take part in creating or continuing a disturbance, in or near a place where the Commission is holding such 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 three months.
Delegation
| by | 12. (1) The Commission may, either generally |
| Commission. | or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to any person, being an authority of any State, the Australian Capital Territory, the Northern Territory or an external Territory to which the operation of the Agreement extends or an officer of any State, the Australian Capital Territory, the Northern Territory or such an external territory or of such an authority, any functions or powers that are conferred or expressed to be conferred on the Commission by or under any Act (other than functions or powers the delegation of which is prohibited by the Act). |
| (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 subsection (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, an Act of another State or a Commonwealth Act. |
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Securities Commission (State Provisions).
(4) A person to whom a function or power has
been delegated under subsection (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 subsection (4) may be given to
(a) a specified person; or
| (b) | a person for the time being holding a specified office under an Act, an Act of another State or a Commonwealth Act. |
(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 subsection (1) or by a person authorized by a delegate of the Commission under subsection (4) to perform that function or exercise that power has the same force and effect as if it had been done by the Commission.
(7) Where, under any 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 subsection (1), that function or power may be performed or exercised by the delegate or by a person authorized by the delegate under subsection (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 subsection (1) does not prevent the performance of a function or the exercise of a power by the Commission.
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Securities Commission (State Provisions).
The giving of an authority under subsection (4) does not prevent the performance of a function or the exercise of a power by the person by whom the authority was given.
(9)
(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 an Act, an Act of another State or a Commonwealth Act, it shall be presumed, unless the contrary is established, that the person is duly authorized as a delegate of the Commission or as a person duly authorized by such a delegate 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 subsection (1) or by a person authorized by such a delegate under subsection (4) to perform the function or exercise the power
| (a) | the provisions of sections 6 to 11 (other than paragraph (e) of subsection (1) of section 9) apply for the purpose of the performance of the function or the exercise |
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of the power by the person in like manner as they 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 the provisions of those sections in accordance with paragraph (a), references in those provisions 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 (3) of section 7 and first, second and third occurring in subsection (9) of section 7; and
(ii) the reference to the Commission in paragraph (b) of subsection (3) of section 9,
shall be construed as references to the
person.
13. A person, being an authority of the State or :tuct.hry
| perform or exercise any functions or powers that delegate. | an officer of the State or of such an authority, may ru es may |
| are conferred or expressed to be conferred on the Commission by or under any Act, an Act of another State or a Commonwealth Act, being functions or powers |
| (a) | that are delegated to that person pursuant to this Act, an Act of another State or the Commission Act; or |
| (b) | which, pursuant to this Act, an Act of another State or the Commission Act, he is authorized by a delegate to perform or exercise, |
and may perform or exercise those functions or powers in addition to carrying out his duties as an authority of the State or as an officer of the State or of such an authority.
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Securities Commission (State Provisions).
Directions
| by | 14. Where the Commission has delegated a |
| Commissio | function or power to a person under section 12- |
| (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 subsection (4) of section 12, 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.
| Secrecy. | 15. (1) Subject to this section, a person who is, or has at any time been appointed for the purposes of a prescribed Act or authorized to perform or exercise any function or power of the Commission conferred or expressed to be conferred upon the Commission by an Act or a relevant Act or any such 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 or authorized, or make use of any such information, |
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Securities Commission (State Provisions).
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 subsection (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 any prescribed Act or relevant 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 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, Common- wealth Act or Act of another State to be produced, divulged or communicated, as the case may be. |
(3) In this section, "relevant Act" means the Commission Act, any Commonwealth Act that is a prescribed Act for the purposes of subsection (2) of section 47 of the Commission Act, or any Act of another State that is a prescribed Act for the purposes of a provision of an Act or enactment of the relevant State or Territory that corresponds to this section.
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Securities Commission (State Provisions).
Restrictions
| on dealings | 16. (1) A person who is, or has at any time been, |
| in securities. |
appointed for the purposes of a prescribed Act or authorized to perform or exercise any function or power of the Commission conferred or expressed to be conferred on the Commission by an Act, the Commission Act, any Commonwealth Act that is a prescribed Act for the purposes of subsection (2) of section 47 of the Commission Act, or any Act of another State that is a prescribed Act for the purposes of a provision of an Act or enactment of the relevant State or Territory that corresponds to this section or any such function or power on behalf of the Commission and has, by reason that he is, or has at any time been, so appointed or authorized, information that is not generally available 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: $20 000 or imprisonment for five years. (2) Where a person to whom subsection (1) applies has information as mentioned in that subsection and 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 when the first- mentioned transaction took place if the information had been generally available.
(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 an Act of another State or a |
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Securities Commission (State Provisions).
Commonwealth 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 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)
An action under this section for recovery of compensation for a loss shall not be commenced after the expiration of two years after the date of completion of the transaction in which the loss occurred.
(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 subsection (2).
(7)
Nothing in subsection (2) affects any liability that a person may incur under any other law.
Notification
| 17. (1) A person who is appointed for the | of interests. |
purposes of a prescribed Act or is authorized to perform or exercise any function or power of the Commission conferred or expressed to be conferred on the Commission by an Act, the Commission Act, any Commonwealth Act that is a prescribed Act for the purposes of subsection (2) of section 47 of the Commission Act, or any Act of another State that is a prescribed Act for the purposes of a provision of an Act or enactment of the relevant State or Territory that corresponds to this section or any such 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; |
| No. 60.] | National Companies and | [1980. |
Securities Commission (State Provisions).
| (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 three 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 three years,
shall forthwith so inform the Commission in writing.
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 or particular securities 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.
(2)
(3) The questions whether a person has a relevant interest in securities, whether a person is associated with a person or body and whether two bodies corporate are related to each other for the purposes of this section shall be determined as prescribed under the Commission Act for the purposes of subsection (4) of section 49 of that Act.
Penalty: $5 000 or imprisonment for one year, or
both.
| 1980. | ] | National Companies and | [No. 60. |
Securities Commission (State Provisions).
Provsions
| 18. (1) A certificate purporting to be signed by relating to | re terial |
a member of the Ministerial Council, or by a person Council.
authorized by the Ministerial Council to sign
certificates for the purposes of subsection (1) of
section 51 of the Commission Act or of this
subsection, stating that the Ministerial Council
has made any nomination, appointment or
recommendation, given any consent or direction,
passed any resolution, done any other act or formed
any opinion is, upon mere production, receivable
as prima facie evidence of that fact.
(2) A certificate purporting to be signed by a member of the Ministerial Council stating that a specified person is authorized by the Ministerial Council to sign certificates for the purposes of subsection (1) of section 51 of the Commission Act or of subsection (1) is, upon mere production receivable as prima facie evidence that the person is so authorized.
(3) A function or power conferred by an Act on the Ministerial Council may, if the Ministerial Council has authorized a member of the Ministerial Council, or has authorized the Commission, to perform or exercise that function or power, be performed or exercised by that member or by the Commission, as the case may be.
| 19. The Minister shall cause | Report and |
| Annual | |
| financial |
| (a) | copies of the report and financial state- | statements |
| of | ||
| ments of the Commission prepared by the | Commission | |
| to be tabled | ||
| Commission in each year pursuant to | in | |
| Parliament. | ||
| subsection (1) of section 52 of the Commission Act; and | ||
| (b) | a copy of the report of the Auditor-General for the Commonwealth on those financial statements, |
submitted to the Minister by the Commission pursuant to subsection (3) of section 52 of the Commission Act, to be laid before each House of the Parliament within fifteen sitting days of that House after their receipt by him.
| No. 60.] | National Companies and | [1980. |
Securities Commission (State Provisions).
Supreme
| Court may | 20. Subject to the Supreme Court Act 1935, the or with respect to inquiries held by the Court under subsection (8) of section 10 of this Act or under subsection (8) of section 39 of the Commission Act. |
| make rules | |
| relating to | judges of the Supreme Court may make rules for |
| contempt | |
| proceedings. | |
| Regulations. | |
| 21. (1) The Governor may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act. | |
| (2) Regulations providing for allowances and expenses for the purposes of subsection (3) of section 9 may provide for those allowances and expenses by reference to a scale of expenses as in force for the time being for witnesses who attend before a court specified in the regulations, being a federal court or the Supreme Court or the Supreme Court of another State or of a Territory. |
The regulations may be of general or specially
limited application or may differ according to
differences in time, place or circumstance.
(3)
(4) Regulations prescribing matters for the purposes of this Act may prescribe those matters by reference to regulations for the time being in force under the Commission Act.
(5) The power of the Governor to make regulations shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council.
Bearings
| deemed | 22. A hearing before the Commission shall, for |
| Judicial |
| proceedings, | the purposes of Chapter XVI of The Criminal Code, be deemed to be a judicial proceeding. |
| 1980.] | National Companies and | [No. 60. |
Securities Commission (State Provisions).
| SCHEDULE | Section 3 (1) |
AN AGREEMENT made the twenty-second day of December, One thousand nine hundred and seventy-eight, between
THE COMMONWEALTH OF AUSTRALIA of the first part,
THE STATE OF NEW SOUTH WALES of the second part,
THE STATE OF VICTORIA of the third part,
THE STATE OF QUEENSLAND of the fourth part,
THE STATE OF SOUTH AUSTRALIA of the fifth part,
THE STATE OF WESTERN AUSTRALIA of the sixth part and
THE STATE OF TASMANIA of the seventh part.
WHEREAS
(A) it is generally acknowledged in the interests of the public and of persons and authori ties
concerned with the administration of the laws relating to
(a) companies; and
(b) the regulation of the securities industry,
that there should be uniformity both in those laws and in their administration in the States and Territories of Australia in order to promote commercial certainty and bring about a reduction in business costs and greater efficiency of the capital markets and that the confidence of investors in the securities market should be maintained through suitable provisions for investor protection;
| (e) | the Governments of the Commonwealth and of the States of Australia are agreed that such uniformity will be achieved by establishing and implementing a co-operative scheme the objectives of which are to ensure that |
| (a) | the legislation relating to the scheme is, and continues to be, 'uniform throughout Australia at all times; |
(b) the legislation is administered on a uniform basis;
| (c) | the Commonwealth and the States are able to co-operate with each other in regard to the matters to be provided in the legislation and the way in which the legislation is administered; |
| (d) | the legislation is capable of effective administration throughout Australia with the minimum of procedural requirements and is so administered; and |
| (e) | changes in the legislation are proposed for consideration as appropriate from time to time and amendments made when the need for reform arises; |
| (c) | as the result of conferences between their respective Ministers the Governments have reached agreement on a scheme to achieve those objectives; |
| (o) | the essential element of the scheme is an agreement between the Commonwealth and the States to provide for the introduction of legislation, the establishment and operation of a Ministerial Council and of a National Companies and Securities Commission and for matters relating to the functioning of the scheme as hereinafter appears; and |
| (a) | the funds and other resources required for the administration of each State or Territory to carry out its functions in accordance with the scheme are to be provided by the respective parties to that agreement: |
NOW IT IS HEREBY AGREED as follows:
PART I—INTERPRETATION
1. In this agreement, except where a contrary intention appears
| (a) | "the Commonwealth" means the Commonwealth of Australia as a party to this agreement; |
| (b) | " State " means a State of the Commonwealth of Australia that is at the relevant time a party to this agreement; |
(c)
| and | " the States " means MI the States that are for the time being Parties to this agreement; | ||
|
Securities Commission (State Provisions).
SCHEDULE—continued
| (d) | " Territory " includes, in addition to a mainland Territory, an external Territory of the Commonwealth to which the operation of this agreement is at any time and for the time being extended in accordance with clause 50 and "Australia" extends to any such Territory. |
2. In this agreement, unless the contrary intention appears or the context otherwise
requires-
" financial year " means a period of twelve months ending on a thirtieth day of June and, where the relevant provision of this agreement is applicable during part only of any such period, means the portion of the period during which the provision so applies; " the Commonwealth Acts "means the legislation of the Parliament of the Commonwealth
that is provided for by this agreement . as amended from time to time consistently
with this agreement;
" the Interstate Corporate Affairs Agreement " means the agreement so named made the 18th February 1974 between the States of New South Wales, Victoria and Queens- land to which the State of Western Australia has become a party;
" the Ministerial Council " means the Ministerial Council for Companies and Securities established by Part VII;
"the National Commission" means the National Companies and Securities Commission to be established by the Commonwealth Acts; and
" the State Acts " means legislation of the Parliament of a State that is provided for by this agreement as amended from time to time consistently with this agreement.
3. In this agreement, unless a contrary intention appears
| (a) | a reference to a Part is a reference to the relevant Part of this agreement; |
| (b) | a reference to a clause is a reference to the relevant clause of this agreement; and |
| (c) | a reference to a sub-clause is a reference to the relevant sub-clause of the clause in which the reference appears or of such other clause as the reference indicates. |
PART II—OPERATION OF AGREEMENT
4. (1) This agreement shall come into force when it has been executed by all of the parties hereinbefore designated.
(2) This agreement may, after its coming into force, be amended only by the unanimous decision of all parties for the time being with representatives in the Ministerial Council with a right to vote in proceedings of that Council.
5. In the event that a State, including a State which has become a party pursuant to clause 43, ceases to be a party, this agreement shall nevertheless continue in force with respect to the Commonwealth and the States which are parties when the cessation takes effect.
6. A State shall cease to be a party to this agreement if
| (a) | the State, within a period of six months from the passage of the Commonwealth legislation referred to in clause 8, or within such extension or extensions of that period as may be unanimously approved by the Ministerial Council, fails to secure the passage of the legislation of that State provided for by clause 9; or |
| (b) | the State withdraws from this agreement pursuant to Part XVI. |
PART III—ESTABLISHMENT OF SCHEME
7. The Commonwealth and the States will take such action as is provided for by this agreement and is otherwise requisite on their respective parts to achieve the objectives set out in recital (a) by initiating and operating the scheme of legislative and administrative acts and procedures that is contemplated by this agreement.
PART IV—INITIAL LEGISLATION
8. (I) The Commonwealth will
| (a) | submit to the Commonwealth Parliament legislation which has been unanimously |
approved by the Ministerial Council to form the basis of the scheme and take such
| ||||
|
Securities Commission (State Provisions).
SCHEDULE—continued
| (b) | submit to the Federal Executive Council for making by the Governor-General regu- lations under that legislation which have been unanimously approved by the Ministerial Council. |
(2) The legislation and regulations provided for by sub-clause (I) shall
| (a) | constitute the substantive law relating to companies and the regulation of the securities industry that will apply to the Australian Capital Territory and, subject to clause 49 and as contemplated by clause 50, to other Territories; |
| (b) | except to the extent that amendments are agreed upon by the Ministerial Council or are required to give effect to Parts V and VI, be substantially in conformity with the provisions of the Companies Acts, Securities Industry Acts and Marketable Securities Acts in force at the date of this agreement in the States which are the parties to the Interstate Corporate Affairs Agreement; |
| (c) | confer on the Ministerial Council such powers as may appropriately be so conferred to give effect to its functions under and in accordance with this agreement; |
| (d) | establish the National Commission and make provision for and in relation to its members; |
| (e) | confer on the National Commission such functions and powers as, in conjunction with functions and powers which arc conferred on it by the State Acts, will enable it to carry out its functions under and in accordance with this agreement; |
| (f) | make provision for and in relation to the staff of the National Commission; and |
| (g) | include provisions relating to the financial management, proceedings, reports and records of the National Commission and for matters that are necessary or incidental to the performance of its functions. |
9. Each State will as soon as practicable after the passage of the Commonwealth Acts submit to the Parliament of the State and take such steps as are appropriate to secure the passage of legislation which has been unanimously approved by the Ministerial Council and which
| (a) | to the extent necessary for the purposes of this agreement, repeals, amends or modifies the operation of the legislation of the State relating to companies and to the regulation of the securities industry referred to in the Second Schedule and any regulations made under that legislation; |
| (b) | as from the coming into force of that legislation, applies, in place of the legislation so repealed, amended or modified in operation, the legislation relating to companies and to the regulation of the securities industry enacted by the Parliament of the Commonwealth as provided in paragraph (a) of sub-clause 8 (I) and, as from the respective dates of that coming into force, any legislation from time to time enacted in accordance with this agreement which amends, supplements or is substituted for that legislation; |
| (c) | applies, as from the coming into force of the legislation, the regulations referred to in paragraph (b) of sub-clause 8 (1) and any further regulations that amend or supple- ment or are substituted for those regulations; |
(d) authorizes such action as is requisite for the State to take under clause 7; and
| (e) | in the case of the States which are parties to the Interstate Corporate Affairs Agreement, terminates the operation of that agreement. |
10. (1) As at the date of execution of this agreement, the question of the application, in respect of the scheme contemplated by this agreement, of Commonwealth and State laws relating to the review of administrative decisions, freedom of information and archives has not been resolved.
| (2) This question will be the subject of further enquiry and subsequent agreement between the parties. |
| No. 60.] | National Companies and | [1980. |
Securities Commission (State Provisions).
SCHEDULE—continued
PART V—NAMES AND REGISTRATION
11. The legislation of the Commonwealth and of the States provided for by Part IV (in this Part referred to as "the Commonwealth and State legislation ") shall include pro- visions under which, except with the consent of the Ministerial Council
| (a) | a company shall not be incorporated in any State or Territory under a name which is undesirable or is a name of a kind which the Ministerial Council has directed to be unacceptable; |
| (b) | a body formed outside Australia shall not be registered as a foreign company in any State or Territory under a name which is undesirable or is a name or a name of a kind which the Ministerial Council has directed to be unacceptable; and |
| (c) | a body formed within Australia other than a company shall not be entitled to be registered as a foreign company in any State or Territory under a name which is undesirable or is a name or a name of a kind which the Ministerial Council has directed to be unacceptable. |
12. The Commonwealth and State legislation shall include provisions under which
| (a) | a body which immediately before the legislation provided for by clauses 8 and 9 comes into force is- |
(i) a company incorporated in a State or Territory;
(ii) a body formed outside Australia and registered as a foreign company in a State or Territory ;
(iii) a body formed within Australia other than a company and registered as a foreign company in any State or Territory,
may carry on business or establish a place of business under the name by which, and in any State or Territory in which, it is so incorporated or is registered as a foreign company or in which it is a recognised company and has reserved that name;
| (b) | a company incorporated in any State or Territory and a body formed outside Australia which is registered as a foreign company in any State or Territory may reserve its name in any other State or Territory if its name is, in that other State or Territory, not undesirable and not a name of a kind which the Ministerial Council has directed to be unacceptable; |
| (c) | a company or body which has reserved its name in a State or Territory other than the State or Territory of its incorporation or formation will not be required- |
(i) to register in that other State or Territory in order to carry on business or establish a place of business in that other State or Territory; or
(ii) to lodge any documents in that other State or Territory for the purpose of carrying on business or establishing a place of business in that other State or Territory; and
| (d) | a body formed within Australia other than a company shall not be entitled to carry on business or establish a place of business in any State or Territory other than the State or Territory in which it is formed unless it is registered in that other State or Territory as a foreign company. |
13. The Commonwealth and State legislation shall include provisions by virtue of which
| (a) | a company incorporated in a State or Territory; |
| (b) | a body formed outside Australia and registered as a foreign company in any State or Territory; |
| (c) | a body formed within Australia other than a company and registered as a foreign company in any State or Territory, |
shall not, except with the consent of the Ministerial Council, change its name to a name which, in any State or Territory in which it is incorporated or in which its name is reserved, as a
| recognised company, is undesirable or is a name or a name of a kind which the Ministerial | Council has directed to be unacceptable. |
| 1980.] | National Companies and | [No. 60. |
Securities Commission (State Provisions).
SCHEDULE—continued
14. (1) The National Commission shall examine proposals that are from time to time made for an alternative version of the provisions of the Commonwealth and State legislation referred to in this Part, whether or not those provisions have been enacted, or which have been included in the Commonwealth and State legislation pursuant to those clauses and furnish a report to the Ministerial Council on the proposals.
(2) A report by the National Commission on any proposal under sub-clause (1) shall be furnished to the Ministerial Council within two years after the proposal was made.
(3) The Ministerial Council shall give due consideration to a report by the National Commission under sub-clauses (1) and (2) and may modify any provision of the Common- wealth and State legislation or, if the legislation has been enacted, approve an amendment thereof, having regard to the modification proposed.
15. In this Part
| (a) | " company" means a company incorporated under the Companies Act or Companies Ordinance of a State or Territory and does not include a Co-operative Company to which the Companies (Co-operative) Act 1943-1976 of the State of Western Australia (or that Act as subsequently amended) applies. |
| (b) | " body " includes a company except where a body other than a company is referred to in which case the reference is to a corporation (other than a company) or un- incorporated organization which, if it is or were not formed within a State or Territory, is or would be capable of registration in the State or Territory as a foreign company. |
PART VI—SPECIAL INVESTIGATIONS
16. The principles that will be adopted in the legislation of the Commonwealth and of the States with respect to special investigations shall be
| (a) | that the power to order special investigations shall be exercisable exclusively by the members of the Ministerial Council either collectively as the Ministerial Council or individually; and |
| (b) | that the National Commission shall have responsibility for the appointment of inspectors and for the direction and co-ordination of investigatory activities. |
17. The principles in respect of special investigations shall be applied by the legislation to the following effect:
| (a) | the Minister responsible for the administration of the State Acts in respect of a State or the Commonwealth Acts in respect of a Territory shall be empowered to order a special investigation where it appears to that Minister in the public interest in respect of the State or the Territory to do so; |
| (b) | the Minister responsible for the administration of the Commonwealth Acts shall be empowered to order a special investigation where it appears to the Minister to be in the national interest to do so; |
| (c) | the Ministerial Council shall be empowered to order a special investigation where in the circumstances it thinks fit; |
| (d) | the National Commission, in performing its function as appointing authority either where it will undertake the special investigation or will appoint an inspector to do so, will be required- |
(i) where the special investigation has been ordered by a Minister without any request by the National Commission for the Minister to do so, to act in accordance with the wishes of that Minister as to the identity of the inspector and the terms and conditions of the appointment;
(ii) in any other case, to have regard to the views of the individual Minister or of the Ministerial Council, as the authority by which the special investigation was ordered, as to the identity of the inspector and the terms and conditions of the appointment; and
(iii) in the event of a disagreement with the Minister or the Ministerial Council on a matter coming within sub-paragraph (ii), to accept the decision of the Ministerial Council in the relevant respect;
| (e) | the National Commission shall be entitled to request an individual Minister or the |
Ministerial Council, as the appropriate authority, to order a special investigation;
| No. 60.] | National Companies and | [1980. |
Securities Commission (State Provisions).
SCHEDULE—continued
(f) the power to publish the report of an inspector shall reside-
(i) in a case where the costs of the investigation are to be met by the National Commission—in the Ministerial Council;
(ii) in any other case—in the Minister who ordered the investigation,
but, where an opinion of the relevant Law Officer of the Commonwealth or of a State advising that the publication of the report would be prejudicial to the administration of justice in a Territory or the State has been made available to the Ministerial Council or the Minister having the power to publish the report as the case may be, the power shall not be exercised until a further opinion by the relevant Law Officer is similarly made available to the effect that publication would be no longer prejudicial to that administration of justice;
| (g) | where a special investigation has been ordered by a Minister without any request by the National Commission for the Minister to do so, that Minister, not the National Commission, shall, unless and until the Ministerial Council subsequently approves the investigation, have in relation to that investigation those powers and functions of "the Minister" presently expressed in Part VIA of the Companies Act 1961 or Division 2 of Part II of the Securities Industry Act 1975 of the State of New South Wales, whichever is relevant, which are referred to in Part 2 of the First Schedule. |
18. (1) The cost and expenses of and in connection with the carrying out of a special investigation shall be borne
(a) where the investigation was ordered by-
(i) the Ministerial Council;
(ii) an individual Minister at the request of the National Commission; or
(iii) an individual Minister but subsequently approved by the Ministerial Council,
by the National Commission;
| (b) | in all other cases—by the party to this agreement whose Minister ordered the investigation. |
(2) Moneys which are recovered in respect of the costs and expenses of a special investigation shall be paid or credited to the National Commission or to the party to this agreement according to the allocation under sub-clause (I) of responsibility for those costs and expenses.
PART VII—ESTABLISHMENT OF MINISTERIAL COUNCIL
19. For the purposes of the scheme there shall be a Council of Commonwealth and State Ministers to be known as the Ministerial Council for Companies and Securities.
20. (I) The Ministerial Council shall consist of a member representin g each party for the time being to this agreement who, subject to sub-clause (2), shall be the Minister of State of that party who is for the time being responsible for administering the law relating to companies and the regulation of the securities industry.
(2) A member of the Ministerial Council for the time being representing a party to this
agreement
| (a) | may appoint a delegate who is another Minister of State of that party to attend a meeting of the Ministerial Council in place of the member; or |
| (b) | shall, while a Minister of State of the party is for the time being acting as the Minister who is referred to in sub-clause (I), be the Minister who is so acting, |
and references in this agreement (other than in this clause) to a member of the Ministerial Council shall include a delegate in respect of attendance at any such meeting or a Minister who is so acting.
PART VIM—FUNCTIONS OF MINISTERIAL COUNCIL
21. (I) The functions of the Ministerial Council shall be
| (a) | to consider and to keep under review the formulation and operation of the legislation and regulations provided for by this agreement; and |
(b) to exercise general oversight and control over the implementation and operation of
| the scheme. |
| 1980. | ] | National Companies and | [No. 60. |
Securities Commission (State Provisions).
SCHEDULE—continued
(2) To assist the Ministerial Council in discharging its functions under paragraph (a) of the previous sub-clause, there shall be a Companies and Securities LawReview Committee
| (a) | to carry out research into and advise on law reform in relation to the legislation and regulations referred to in that paragraph; |
| (b) | the number of the members of which is to be determined from time to time by the Ministerial Council; |
| (c) | the members of which are to be appointed and may be removed by the Ministerial Council and will be engaged on terms and conditions determined by the Ministerial Council. |
22. (1) Without prejudice to the generality of clause 21, the functions of the Ministerial Council shall include
| (a) | consideration and approval of the Bills which will comprise the Commonwealth legislation referred to in clause 8 and of the regulations under that legislation; |
| (b) | consideration and approval of the Bills of each State which will comprise the State legislation referred to in clause 9 and of any regulations under that legislation; |
| (c) | consideration and approval of any amendments of, or of any legislation proposed to supplement or be substituted for, the Commonwealth Acts and the regulations for the time being in force thereunder; |
| (d) | consideration and approval of any amendments of, or of any legislation proposed to supplement or be substituted for, the State Acts and any regulations for the time being in force thereunder; |
| (e) | general oversight, including budgetary control, over the functioning of the National Commission; and |
| (f) | giving directions to the National Commission in respect of any policy or matter that conies within the functions of the National Commission under the Commonwealth Acts or the State Acts. |
(2) Subject to Part VI and clause 39, the functions of the Ministerial Council under para- graph (f) of sub-clause (1) shall be an exclusive function and the National Commission shall not be required to recognize or acknowledge any other person or authority as empowered to give directions to it in that respect.
23. The Ministerial Council shall be entitled to require the National Commission to furnish a report to the Ministerial Council in relation to
| (a) | any policy which the National Commission is pursuing, or proposes to pursue, |
including a report of the estimated financial effect on State and Territory adminis- trations of any policy or change in policy which the National Commission proposes to pursue; and
| (b) | any other matter within the functions of the Ministerial Council or of the National Commission. |
24. The functions of the Ministerial Council shall not, except as provided in clause 25,
be able to be, and shall not be, delegated to any Minister or to any other person or authority.
25. The Ministerial Council may itself exercise and, without derogation from its power in that respect at any time, may from time to time and for such time as it may determine, authorize any one or more of its members or the National Commission to exercise a discretion arising out of or relating to a matter or to matters specified in, and subject to, Part I of the First Schedule to this agreement.
PART IX—PROCEEDINGS OF MINISTERIAL COUNCIL
26. (1) Ordinary meetings of the Ministerial Council (in this Part called " Council ") shall be held at such times and places as are from time to time decided by Council but not less than four shall be held in each calendar year.
(2) A special meeting of Council may be convened by any member by notice of 14 days
or of such other period as may be accepted by all members for the purpose of the meeting.
(3) A special meeting shall not, except with the agreement of all members of Council,
consider a matter which has not been specified in or at the time of the notice of the meeting.
| 27. The quorum for a meeting of Council shall be five members. |
| No. 60.] | National Companies and | [1980. |
Securities Commission (State Provisions).
SCHEDULE—continued
28. (1) The Chairman of a meeting of Council shall be decided by Council prior to or, if not previously decided, at the meeting.
(2) At a meeting of Council the Chairman shall have a deliberative but not casting vote. 29. (1) Except as otherwise provided in this clause, in paragraph (a) of clause 6 and in clauses 8, 9 and 30, a resolution will be carried by Council by a simple majority of members present and voting on the resolution.
(2) A unanimous vote of all members of Council shall be required for the passage of a resolution which
(a) nominates a person for appointment as a member of the National Commission;
| (b) | approves amendments of the Commonwealth Acts which will change the number of members of the National Commission; or |
(c) cancels the approval of any stock exchange in Australia.
30. A resolution which, without being considered at a meeting of Council, is referred to all members of Council and of which a majority of the members, or, if a unanimous vote is required for the passage of the resolution, all the members indicate by telephone, teleprinter message or other mode of communication to the National Commission that they are in favour shall be as valid and effectual as if it had been passed at a meeting of Council duly convened and held.
31. Subject to the foregoing provisions of this Part, Council may determine its own pro- cedure and for that purpose may make rules of procedure, including rules relating to notices of meetings and conduct of business at meetings and to voting by membersunder clause 30, and may from time to time alter such rules.
PART X—NATIONAL COMPANIES AND SECURITIES COMMISSION
32. (1) Subject to this agreement, the functions of the National Commission to be established by the Commonwealth Acts shall be to have and to exercise, subject only to directions from time to time of the Ministerial Council, responsibility for the entire area of policy and administration with respect to company law and the regulation of the securities industry.
(2) The National Commission shall be required by the Commonwealth Acts to comply' with directions that are from time to time given to it by the Ministerial Council in accordance with the agreement or by a Minister pursuant to sub-paragraph (0) (i) of clause 17, and in conformity with the Commonwealth Acts and the State Acts.
(3) Without prejudice to the generality of sub-clause (1), the functions of the National Commission shall, subject to paragraph 17 (g), include the exercise of discretions in respect of the matters specified in Part 2 of the First Schedule.for the purposes of the operation of the provisions by which those discretions are conferred.
33. (1) The National Commission shall be a body corporate under the name National Companies and Securities Commission and shall consist of not less than three and not more than five members (who shall be known as members) and at least three members shall be full time members.
(2) The members shall be appointed by the Governor-General of the Commonwealth on the nomination of the Ministerial Council.
(3) A Chairman and a Deputy Chairman of the National Commission shall be appointed by the Governor-General from the full-time members for the time being on the nomination of the Ministerial Council.
(4) In the event of a vacancy in the office of Chairman or the absence of the Chairman
from duty or from Australia the Deputy Chairman shall act as Chairman and in the event of
a vacancy in the office of Deputy Chairman or a like absence of the Deputy Chairman a member
who has been nominated by the Ministerial Council to act as Chairman in that event may so act.
(5) The qualifications of a person for appointment as member shall include suitable
experience in business, commerce, law, economics, accounting or public administration.
(6) A member shall, subject to the provisions of the Commonwealth Acts, hold office for such period not exceeding five years as is specified upon appointment and shall be eligible for
| re-appointment. |
| 1980.] | National Companies and | [No. 60. |
Securities Commission (State Provisions).
SCHEDULE—continued
34. (I) The affairs of the National Commission shall be conducted at meetings of members and in such other manner as is provided by the Commonwealth Acts.
(2) The quorum for a meeting of the National Commission shall be three members unless at the time the Commission consists of three members only, in which case the quorum shall be two members.
(3) The Chairman of the National Commission or, in the absence of the Chairman, the Deputy Chairman or Acting Deputy Chairman for the time being will preside at meetings.
(4) The person presiding at a meeting shall have a deliberative but not a casting vote. 35. (1) The National Commission shall have power to delegate any of its functions, including the functions referred to in sub-clause 32 (3), to an administration, or to an officer of an administration, of a State or of a Territory.
(2) In performing its functions and exercising its powers, including the power of delegation, the National Commission shall have regard to the principle of the maximum development of a decentralized capacity to interpret and promulgate the uniform policy and administration of the scheme.
36. (1) The staff of the Commission shall consist of such persons as are employed by it in accordance with the Commonwealth Acts and may include persons who, by arrangement between the Commonwealth and a State in accordance with the Commonwealth Acts and the State Acts, are provided for the performance of services for the National Commission.
(2) The National Commission shall be empowered to arrange with the Commonwealth
or a State for the services of members of its staff to be made available for the administration
by the Commonwealth or the State of company law or the regulation of the securities industry.
PART XI—STATE AND TERRITORY ADMINISTRATIONS
37. (1) The administration of company law and the regulation of the securities industry within each State and Territory in accordance with the scheme established under this agree- ment shall, to the maximum extent practicable, be carried out by the entities and personnel of the State or Territory administration but those entities and personnel shall in the performance of those functions be subject to direction by the National Commission.
(2) The power of the National Commission to give directions to a State or Territory administration shall not apply to functions which that administration performs under legis- lation or regulations other than that of the Commonwealth and of the States provided for by clause S and by paragraphs (b) and (c) of clause 9 respectively.
38. (I) The policy direction and general control over the administration of company law and the regulation of the securities industry throughout Australia by the Ministerial Council and by the Commission in accordance with this agreement shall, subject to Part VI and to clause 25 and to sub-clause t2), be exercised to the exclusion of individual Ministerial direction and control by the responsible Minister of the Commonwealth or of the State.
(2) The exercise of direction and control by the Ministerial Council or by the National Commission referred to in sub-clause (1) shall not extend to matters relating to the Australian Public Service or the Public Service of a State or to the management and provision of facilities and services of the State or Territory administration or to any functions of that administration that are not included within the scope of operation of the scheme established under this
agreement.
39. The Minister of the Commonwealth or of a State who has administrative responsibility for company law and regulation of the securities industry in a State or Territory shall be entitled to be notified of, and to be given information concerning, any matter being dealt with by the National Commission or the administration of the State or the Territory and shall have the right to refer any matter arising out of or in connexion with the Minister's responsibilities directly to the National Commission or to the Ministerial Council for consideration.
40. Each party to this agreement will provide the funds and other resources necessary for its State or Territory administration to carry out the functions of that administration in accordance with the scheme established under this agreement.
PART XII—FUNDING OF NATIONAL COMMISSION
| 41. (I) The funds required for the establishment and functioning of the National Com- mission shall be provided in equal shares by the Commonwealth as to one part and the States |
jointly as to the other part.
| No. 60.] | National Companies and | [1980. |
Securities Commission (State Provisions).
SCHEDULE—continued
(2) The share of the States of the funds required during a financial year shall be apportioned between the States in accordance with the same proportions as the estimated population of each State on the 31st December in the financial year as determined by the Australian Stati- stician under section 9 of the States (Personal Income Tax Sharing) Act 1976 of the Com- monwealth Parliament bears to the total of the estimated populations of all the States on that date as so determined.
(3) If the Northern Territory becomes a party to this agreement under clause 49, the proportion of the share of the States which that Territory is to provide for the purposes of sub-clause (2) shall be calculated according to the population of that Territory as determined from time to time by the Australian Statistician.
42. (1) The parties will, on or before a date to be agreed between them, enter into an agreement relating to the sharing of relevant fees among the parties in appropriate terms similar to those contained in the agreement dated 15 January 1976 between the States of New South Wales, Victoria, Queensland and Western Australia relating to the sharing of fees for the purposes of the Interstate Corporate Affairs Agreement.
(2) The agreement entered into pursuant to the previous sub-clause shall provide that it may be amended by the unanimous decision of the Ministerial Council.
PART XIII—REPORTS AND STATEMENTS
43. (1) The National Commission shall be required by the Commonwealth Acts to prepare, as soon as practicable after each financial year and not later than the 31st October after the financial year, an annual report and financial statements in respect of that year in such form as is approved from time to time by the Ministerial Council.
(2) The report and financial statements in respect of each financial year shall be submitted
to
| (a) | the responsible Minister of the Commonwealth for presentation to the Commonwealth Parliament; |
(b) each responsible Minister of a State for presentation to the State Parliament ; and
(c) the Ministerial Council.
PART XIV—AMENDMENT OF LEGISLATION
44. The following provisions shall apply with respect to the amendment of the legislation of the Commonwealth and of the States provided for by this agreement:
| (a) | The National Commission or any party to this agreement may at any time submit to |
the Ministerial Council for consideration, or the Ministerial Council may at any time
of its own motion consider, a proposal for the amendment of the Commonwealth Acts.
| (b) | In the event that any Bill to amend the Commonwealth Acts is approved by the Ministerial Council, the Commonwealth will submit that Bill to the Commonwealth Parliament and will take such steps as are appropriate to secure the passage of the Bill. |
| (c) | If a Bill has not been passed by the Commonwealth Parliament within six months from the date on which it was approved by the Ministerial Council, any State may submit to its Parliament and secure the passage of separate legislation which amends the State Acts of that State in such a manner as to give effect to the amendment which that Bill would have made to the Commonwealth Acts. |
45. (1) The National Commission or any party to this agreement may at any time submit to the Ministerial Council for consideration, or the Ministerial Council may at any time of its own motion consider, a proposal for the amendment of the regulations made under the Commonwealth Acts.
(2) In the event that any draft regulation to amend the Commonwealth regulations to
give effect to such a proposal is approved by the Ministerial Council, the Commonwealth
will submit the draft regulation to the Executive Council for making by the Governor-General
and will take such steps as are appropriate to secure the making of that amending regulation.
| 1980. | ] | National Companies and | [No. 60. |
Securities Commission (State Provisions).
SCHEDULE—continued
(3) If upon the expiration of six months from the date on which any such amending regulation was approved by the Ministerial Council the amending regulation has not been made or, having been made, is subject to disallowance or has ceased to be in force by dis- allowance or for any other reason, any State may cause a regulation to be made which amends the regulations made under the State Act of the State in accordance with the amending regulation that was approved by the Ministerial Council.
46. The Commonwealth will not
| (a) | submit to the Commonwealth Parliament any Bill to amend the Commonwealth Acts; |
Or
| (b) | cause to be made any regulation which amends the regulations made under the Commonwealth Acts, |
unless the amendment which will be made by the Bill or by the regulations, as the case may be,
has been approved by the Ministerial Council.
47. (1) The Commonwealth will not submit to its Parliament legislation or take action for the making of regulations which will, upon coming into force, negative the operation of the legislation referred to in paragraph (a) of sub-clause 8 (1) or the regulations referred to in paragraph (b) of that sub-clause or that legislation or those regulations as amended from time to time in accordance with this agreement.
(2) Subject to paragraph (c) of clause 44 and to sub-clause 45 (3), a State will not submit to its Parliament legislation or take action for the making of regulations which will, upon coming into force, negative the operation of the legislation of the State which applies
(a) the legislation referred to in paragraph (b) of clause 9; or
(b) the regulations referred to in paragraph (c) of clause 9.
PART XV—ACCESSION OF NEW STATES AND TERRITORIES
48. (1) A new State of the Commonwealth of Australia may become a party to this agreement by signature on its behalf of a copy of this agreement and notifying each party to this agreement in writing of the signature and the date of signature and shall be deemed to have become a party as from that date.
(2) Subject to sub-clause (3), the provisions of this agreement shall apply to a new State which becomes a party as if it were named as a party to this agreement.
(3) Paragraph (a) of clause 6 shall apply to a new State which becomes a party as if the period of six months referred to therein was expressed as commencing on the date that State becomes a party to this agreement.
49. (1) If administrative responsibility for company law and the regulation of the securities industry in respect of the Northern Territory has become vested in a Minister or Executive Officer who is responsible to the Legislative Assembly of the Territory, the Northern Territory shall be entitled to become a party to this agreement on the basis set out in this clause.
(2) If the Northern Territory becomes a party pursuant to the previous sub-clause-
| (a) | the appropriate Northern Territory representative shall be entitled to participate in the proceedings of the Ministerial Council but, subject to paragraph (c), shall not be entitled to vote as a member of the Ministerial Council; |
| (b) | subject to the previous paragraph, the provisions of this agreement shall apply to the Northern Territory so far as is practicable as if the Territory were a State and, to such extent as is appropriate, the provisions of this agreement shall be read and construed and, if necessary, modified to achieve that result; and |
| (c) | the other parties to this agreement may unanimously agree that the representative referred to in paragraph (a) shall be entitled to vote as a member of the Ministerial Council. |
(3) For the purposes of paragraph (b) of the previous sub-clause, references in this agree- ment to the Parliament of a State shall be read as references to the legislature of the Northern Territory and the expression "the State Acts" shall include the legislation of or for the Northern Territory which corresponds to the legislation of a State that is provided for by this agreement.(4) If the Northern Territory is, at the time when it becomes a State, a party to this agree.
| No. 60.] | National Companies and | [1980. |
Securities Commission (State Provisions).
SCHEDULE—continued
50. If the Minister of State of the Commonwealth responsible for the administration of company law and the regulation of the securities industry considers that the operation of this agreement should be extended to the administration of company law and the regulation of the securities industry in an external Territory of the Commonwealth he may notify the Ministerial Council in writing to that effect and, subject to the passage by the Commonwealth Parliament of such legislation and the making of such regulations as are necessary to achieve that result, the provisions of this agreement shall apply to that Territory in the same manner and to the same effect as they apply to the Australian Capital Territory.
PART XVI—WITHDRAWAL OF A PARTY
51. (1) A party to this agreement may at any time by notice in writing to the Ministerial Council withdraw from this agreement and shall cease to be a party when the notice of with- drawal takes effect.
(2) Subject to sub-clause (3), a notice of withdrawal under this clause shall take effect on a date to be specified in the notice which is not less than one year from the date on which the notice is given.
(3) If the Commonwealth acts in breach of clause 46, a State may withdraw from this agreement under sub-clause (I) by giving a notice of withdrawal which refers to that breach and which takes effect forthwith.
FIRST SCHEDULE
| PART 1 | Clause 25 |
The matters for which immediately before the date of its repeal provision was made by- N.sections 22, 69A and 353 and sub-sections 178 (4), 381 (1) and 381 (2) of the Companies
Act 1961 of the State of New South Wales; and
| (b) | section 29 and sub-sections 21 (4), 127 (1) and 127 (2) of the Securities Industry Act 1975 of the State of New South Wales. |
The National Commission shall not be authorized to exercise the discretion arising from section
29 of the said Securities Industry Act 1975.
| PART 2 | Clause 32 (3) |
The matters for which immediately before the date of its repeal provision was made by
| (a) | sections 24, 79, 179, 179n, 180, I80v, 186, 374n and 374e, sub-sections 44 (3), 80 (lA), 88 (1), 176 (5), 178 (1), 178 (1A), 178 (2), 178 (3), 178 (5), 178 (6), 178 (7), 178 (8), 178 (9), 178 (10), 224 (3), 334 (2) and 374 (2) and paragraphs 38 (7) (b), 74 (1) (e), 171 (1) (b) and 339 (b) of the Companies Act 1961 of the State of New South Wales; and |
| (b) | sections 21 (other than sub-section (4)) 22, 24, 26 and 129, sub-section 19 (5) and paragraph 17 (2) (a) of the Securities Industry Act 1975 of the State of New South Wales. |
SECOND SCHEDULE
| STATE LEGISLATION | Clause 9 (a) |
| New South Wales | Companies Act 1961 Marketable Securities Act 1970 Securities Industry Act 1975 |
| Queensland | Companies Act 1961-1975 Marketable Securities Act 1966 Securities Industry Act 1975 |
| South Australia | Companies Act 1962-1974 Marketable Securities Transfer |
Act 1967
Sharebrokers Act 1945
| Tasmania .. | Companies Act 1962 Marketable Securities Act 1971 |
| Victoria | Companies Act 1961 Marketable Securities Act 1970 |
..
Securities Industry Act 1975
| Western Australia | Companies Act 1961-1975 Marketable Securities Transfer |
Act 1970
| Securities Industry Act 1975 |
| 1980. | ] | National Companies and | [No. 60. |
Securities Commission (State Provisions).
IN WITNESS WHEREOF this Agreement has been respectively signed for and on behalf of the parties as at the day and year first above written.
SIGNED by the Right Honourable JOHN MALCOLM
FRASER, Prime Minister of the Commonwealth of MALCOLM FRASER
Australia, in the presence of-
WAL FIFE
SIGNED by the Honourable NEVILLE KENNETH
| WRAN, Premier of the State of New South Wales, in the | NEVILLE WRAN |
| presence of |
B. DALE
SIGNED by the Honourable RUPERT JAMES HAMER,}
| Premier of the State of Victoria, in the presence of— | R. J. HAMER |
K D. GREEN
SIGNED by the Honourable JOHANNES BJELKE-
| PETERSEN, Premier of the State of Queensland, in the | JOH BJELKE-PETERSEN |
| presence of |
H. J TRELOAR
SIGNED by the Honourable DONALD ALLAN
| DUNSTAN, Premier of the State of South Australia, | DON DUNSTAN |
| in the presence of |
Bruce GUERIN
SIGNED by the Honourable SIR CHARLES WALTER
| MICHAEL COURT, Premier of the State of Western | CHARLES COURT |
| Australia, in the presence of |
BRIAN V. JOHNSON
SIGNED by the Honourable DOUGLAS ACKLEY
| LOWE, Premier of the State of Tasmania, in the presence | D. A. LOWE |
| of |
D EwART
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