Securities Industry Act 1975 (1976 No 3) (NSW)
SECURITIES I N D U S T R Y A C T . ANNO V1CESIMO QUARTO
ELIZABETHE II REGINE
Act N o . 3 , 1 9 7 6 .
An Act to consolidate and amend the law with respect to the regulation and control of trading in securities, the licensing of persons dealing in securities and the estab lishment and administration by stock exchanges of fidelity funds. [Assented to, 7th January, 1976.]
BE
| Council and Legislative Assembly of New South Wales in | BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative |
| Parliament assembled, and by the authority of the same, as follows:— |
P A R T I .—PRELIMINARY.
1. ( 1 ) This Act may be cited as the "Securities Industry
| Act, | 1 9 7 5 " . |
( 2 ) This section and section 2 commence on the date
of assent to this Act.
( 3 ) Except as provided in subsection ( 2 ) , this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
2 . This Act is divided, as follows :—
P A R T I .—PRELIMINARY—ss . 1 - 6 . P A R T II .—ADMINISTRATION—55. 7 - 2 6 .
DIVISION 1.—General—ss. 7 - 1 5 . DIVISION
2.—Investigations—ss. 1 6 - 2 6 .
P A R T I I I .—STOCK EXCHANGES—SS. 2 7 - 3 1 . P A R T IV .—LICENCES—55. 3 2 - 4 9 . P A R T V .—CONDUCT OF SECURITIES BUSINESS—ss. 5 0 - 5 4 .
P A R T
P A R T V I . — A C C O U N T S AND A U D I T — s s . 5 5 - 7 2 .
PART VII.—REGISTERS OF INTERESTS IN S E C U R I T I E S —
ss. 7 3 - 8 0 . P A R T VIII .—DEPOSITS WITH STOCK EXCHANGES—ss . 8 1 - 8 5 .
PART IX.—FIDELITY F U N D S — S S . 8 6 - 1 0 8 .
P A R T X.—TRADING IN SECURITIES—ss. 1 0 9 - 1 1 6 . PART
XI .—MISCELLANEOUS—ss . 1 1 7 - 1 3 2 . PART
X I I . — T H E CORPORATE AFFAIRS COMMISSION —ss. 1 3 3 - 1 4 4 . SCHEDULES.
( 1 ) Each Act specified in Column 1 of Schedule 1 is,
to the extent specified opposite that Act in Column 2 of
Schedule 1 , repealed.
3.
( 2 ) Schedule 2 has effect.
4.
( 1 ) In this Act unless the contrary intention appears— "arbitrage transaction" means a purchase or sale of
securities effected in the ordinary course of trading on a stock market together with an offsetting sale or purchase of those securities effected at the same time, or at as nearly the same time as practicable, in the ordinary course of trading on another stock market for the purpose of obtaining a profit from the difference between the prices of those securities in the two stock markets;
"banker's
"banker's books" means—
(a) books of a banker;
(b) cheques, orders for the payment of money, bills of exchange and promissory notes in the possession or under the control of a banker; and (c) securities or documents of title to securities in the possession or under the control of a banker whether by way of pledge or other wise;
"books" includes any account, deed, writing or document and any other record of information however com piled, recorded or stored, whether in written or printed form or on microfilm or by electronic pro cess or otherwise;
"business rules" in relation to a body corporate that maintains or provides, or proposes to maintain or provide, a stock market, means rules, regulations or by-laws—
(a)
governing the activities or conduct of the body corporate or of its members; or
(b) governing the activities or conduct of other persons in relation to that stock market— being rules, regulations or by-laws made by the body corporate or contained in the memorandum of association or the articles of association of the body corporate;
"Commission" means the Corporate Affairs Commission constituted under Part XII ;
"Commissioner"
"Commissioner" means the Commissioner for Corporate Affairs holding office under Part XII ;
"committee", in relation to a stock exchange, being a body corporate, means the committee of manage ment, board of directors or other governing authority of the stock exchange;
"corresponding law" means a law of another State or of a Territory of the Commonwealth, being a law in respect of which a declaration referred to in sub section ( 1 0 ) is in force;
"Court" means the Supreme Court of New South Wales;
"dealer" means—
(a)
a person who carries on a business of dealing in securities; or
(b)
two or more persons who together carry on a business of dealing in securities—
whether or not that business is part of, or is carried
on in conjunction with, any other business;
"dealers licence" means a dealers licence granted under Part IV; "dealer's representative" means a person who is employed by, or acts for or by arrangement with a dealer, other than an exempt dealer, in connection with a business of dealing in securities carried on by the dealer;
"dealer's
"dealer's representatives licence" means a dealer's representatives licence granted under Part IV;
"dealing", in relation to securities, means (whether as principal or agent) acquiring, disposing of, sub scribing for or underwriting securities or making or offering to make or inducing or attempting to induce a person to make or to offer to make an agree ment—
(a) for or with respect to acquiring, disposing of, subscribing for or underwriting 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 securities;
"declared law" means a law of a participating State, being a law in respect of which a declaration referred to in subsection (9) (b) is in force;
"director" includes a person occupying the position of a
director of a body corporate by whatever namecalled and includes a person in accordance with
"exempt dealer" means— whose directions or instructions the directors of a body corporate are accustomed to act; (a) a corporation that is declared, pursuant to section 38 (7) (b ) of the Companies Act, 1961, to be an authorised dealer in the short term money market; (b)
(b)
a body corporate that is incorporated within the Commonwealth and is a public authority or an instrumentality or agency of the Crown in right of any State or the Commonwealth;
(c)
a person who carries on a business of deal ing in securities by reason that he is an official receiver or trustee within the mean ing of the Bankruptcy Act 1966 of the Commonwealth;
(d)
a person who carries on a business of dealing in securities by reason that he is a receiver or a receiver and manager or other person appointed by a court to carry on that business;
(e)
subject to subsection (2), a person who is a personal representative of a deceased dealer and carries on a business of dealing in securities by reason of his appointment as such a personal representative;
(f)
a person who, as Master or Protective Com missioner within the meaning of the Mental
Health Act, 1958, carries on a business of dealing in securities by reason of his powers
under that Act; and
(g)
a body corporate that carries on, or holds itself out as carrying on, a business of deal ing in debentures of that body corporate but does not carry on a business of dealing in any other securities;
"investment
"investment adviser" means a person who carries on a business of advising other persons, or in the course of a business carried on by him, issues or publishes analyses or reports concerning securities, but does not include—
(a) a bank within the meaning of section 5 of the Banking Act 1959 of the Common wealth or a bank constituted under a law of a State; (b) a body corporate authorised by a law of a State or Territory of the Commonwealth to take in its own name a grant of probate of the will of a deceased person or of letters of administration of the estate of a deceased person; (c) a body corporate registered under the law of the Commonwealth relating to life insur ance ; (d) a solicitor or accountant in public practice as such whose carrying on of that business is solely incidental to the practice of his profession; or (e) a person who is the proprietor or publisher of a newspaper or periodical that is gener ally available to the public otherwise than only on subscription who, only in such a
newspaper or periodical of which he is the
proprietor or publisher, advises other persons concerning securities or issues or publishes analyses or reports concerning securities, not being the proprietor or pub lisher of a newspaper or periodical whose principal or only object is to advise other persons concerning securities or to issue or publish analyses or reports concerning securities;
"investment
"investment advisers licence" means an investment advisers licence granted under Part I V ;
"investment representative" means a person who is employed by, or acts for or by arrangement with, an investment adviser, other than an investment adviser who is the holder of a dealers licence or is an exempt dealer, in connection with a business carried on by the investment adviser of advising other persons, or in the course of which analyses or reports are issued or published, concerning securities;
"investment representatives licence" means an investment representatives licence granted under Part I V ;
"licence" means—(a) a dealers licence;
(b) a dealer's representatives licence;
(c) an investment advisers licence; or
(d) an investment representatives licence;
"listing rules", in relation to a stock exchange, means rules governing or relating t o—
(a)
the admission to, or removal from, the list of the stock exchange of bodies corporate, governments, unincorporate bodies or other
persons for the purposes of the quotation by the stock exchange of securities of bodies
corporate, governments, unincorporate bodies or other persons and for other
purposes; or
(b) the activities or conduct of bodies
corporate, governments, unincorporate bodies and other persons who are admitted
to that list,
whether
whether those rules—
(c) are made by the stock exchange or are contained in the memorandum of associa tion, or the articles of association, of the stock exchange; or (d) are made by another person and adopted by the stock exchange;
"marketable parcel" in relation to the disposal or acquisition of securities by a member of a stock exchange means a marketable parcel of those securities within the meaning of the business rules or listing rules of that stock exchange;
"member" in relation to a stock exchange means a person
who i s— (a)
a member of the stock exchange who carries on a business of dealing in securities on his own account and not in partnership; or
(b)
a partner in a partnership that carries on a business of dealing in securities and is recognised by the stock exchange as a member firm;
"member firm", in relation to a stock exchange, means a
partnership that carries on a business of dealingin securities and is recognised by the stock exchange
as a member firm;
"odd lot", in relation to securities, means a number of securities other than a marketable parcel or a multiple of a marketable parcel of securities;
"officer", in relation to a body corporate, includes—
(a)
a director, secretary or employee of the body corporate;
(b)
P 91375—54
(b)
a receiver and manager of the undertaking or any part of the undertaking of the body corporate appointed under a power contained in an instrument;
(c)
an official manager or a deputy official manager of the body corporate; and
(d)
a liquidator of the body corporate appointed in a voluntary winding up of the body corporate;
"participating State" means a State or Territory of the Commonwealth in respect of which a declaration referred to in subsection (9) (a) is in force;
"quarter day" means 31st March, 30th June, 30th September or 31st December;
"recognised dealer" means, subject to subsection ( 3 ) , a person who is the holder of a dealers licence under a declared law of a participating State or under a corresponding previous law of that State;
"recognised dealer's representative" means, subject to subsection ( 4 ) , a person who is the holder of a dealer's representatives licence under a declared law of a participating State or under a corresponding previous law of that State;
"recognised investment adviser" means, subject to subsection ( 3 ) , a person who is the holder of an investment advisers licence under a declared law of a participating State or under a corresponding previous law of that State; "recognised investment representative" means, subject to subsection ( 4 ) , a person who is the holder of an investment representatives licence under a declared law of a participating State or under a corresponding previous law of that State;
"recognised
"recognised licensee" means, subject to subsections (3 )
and ( 4 ) , a person who is a recognised dealer,recognised dealer's representative, recognised
investment adviser or recognised investment representative;
"representatives licence" means a dealer's representatives licence or an investment representatives licence;
"securities" means—
(a)
debentures, stocks or bonds granted, issued or proposed to be issued by a government;
(b)
debentures, stocks, shares, bonds or notes issued or proposed to be issued by a body corporate or unincorporate;
(c)
any right or option in respect of any such debentures, stocks, shares, bonds or notes; or
(d)
an interest as defined in section 76 of the Companies Act, 1961 ;
"share" has the same meaning as in the Companies Act,
1961 ;
"sole trader" means a member of a stock exchange who carries on a business of dealing in securities on his own account and not in partnership;
"stock exchange" means—
(a) The Sydney Stock Exchange Limited; (b) Stock Exchange of Newcastle Limited; or
(c) any other body corporate that is approved by the Minister under section 28 ;
"stock market" means a market, exchange or other place (whether or not in the State) at which, or a facility by means of which, securities are regularly offered for sale, purchase or exchange;
"trust
"trust account" means a trust account opened and maintained under section 59 or a corresponding previous enactment;
"underwrite" includes sub-underwrite.
(2) A person who is a personal representative of a deceased dealer and carries on a business of dealing in securities by reason of his appointment as such a personal representative is an exempt dealer until the expiration of the period of six months after the date of the death of the dealer or until he is discharged or removed as such a personal representative or until the final distribution of the estate of the dealer, whichever first occurs.
(3) For the purposes of this Act, a person, being the holder of a dealers licence or an investment advisers licence under a law of a participating State, is not a recognised licensee unless—
(a)
in the case of a natural person, not being a partner in a firm, he is ordinarily resident in that State;
(b)
in the case of a natural person who is a partner in a firm, the principal place of business of the firm is in that State; or
(c)
in the case of a body corporate, the body corporate was incorporated in that State.
(4 ) For the purposes of this Act, a person, being the
holder of a representatives licence under a law of a partici
pating State, is not a recognised licensee unless the dealer or
investment adviser by whom he is employed or for or byarrangement with whom he acts holds a licence as a dealer or
investment adviser under a law of that State.
( 5 ) In determining for the purposes of this Act
whether a person carries on a business, or holds himself out as carrying on a business, of dealing in securities, regard shall not be had to an act done on behalf of the person by the holder of a dealers licence or by an exempt dealer or by a recognised dealer.
(6)
(6) The provisions of section 12 (2) of the Com panies Act, 1961, do not apply to or in respect of documents filed or lodged with the Commission under this Act.
(7 ) In this Act, a reference to a Commonwealth Act shall be construed as including a reference to that Act as amended from time to time and to an Act passed in sub stitution for that Act.
(8) A reference to a body corporate in relation to securities includes a reference to a government, unincorporate body or other person that issues or makes available those securities.
(9) The Governor may by order declare—
(a) a State or Territory of the Commonwealth to be a participating State for the purposes of this Act if— (i) the Interstate Corporate Affairs Agreement within the meaning of the Companies Act, 1961, has been signed on behalf of that State or Territory; and
(ii)
there are in force in that State or Territory laws relating to the securities industry that, in the opinion of the Governor enable that State or Territory to have uniformity in administration and to enter into reciprocal arrangements as a participating State in
accordance with the provisions of clause 2
(1) of that agreement; and
(b) any law of that State or Territory to be a declared law for the purposes of this Act.
(10) The Governor may by order declare a law of another State or of a Territory of the Commonwealth to be a corresponding law for the purposes of this Act.
(1 ) Subject to this section, a person has an interest in
securities if he has any legal or equitable interest in those
securities.
5.
(2 ) Where a person—
(a) has entered into a contract to purchase securities;
(b)
has a right, otherwise than by reason of having an interest under a trust, to have securities transferred to himself or to his order, whether the right is exercisable presently or in the future and whether on the fulfilment of a condition or not ;
(c)
has a right to acquire securities, or an interest in securities, under an option, whether the right is exercisable presently or in the future and whether on the fulfilment of a condition or not; or
(d)
is entitled (otherwise than by reason of his having been appointed a proxy or representative to vote at a meeting of members of a body corporate or of a class of its members) to exercise or control the exercise of a right attached to securities, not being securities of which he is the registered holder—
that person shall be deemed to have an interest in those
securities.
(3 ) Where—
(a )
a take-over offer within the meaning of Part V I B of the Companies Act, 1961, or an enactment of another State or of a Territory of the Common wealth that corresponds to that Part has been accepted in respect of a share, whether or not the take-over offer is subject to a condition; or
(b )
(b)
an offer in respect of a share has been made in pursuance of an invitation within the meaning of that Part or such an enactment whether or not the offer is subject to a condition—
the person who made the take-over offer or issued the invita tion, as the case may be, shall be deemed to have an interest in that share.
(4 ) Where the property subject to a trust consists of or
includes securities and a person knows or ought reasonably
to know—
(a) that he has an interest under the trust; and
(b)
that the property subject to the trust consists of or includes those securities—
he shall be deemed to have an interest in those securities.
( 5 ) Where a body corporate has an interest in
securities and—
(a) the body corporate is, or its directors are, accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of a person in relation to those securities; or (b) a person is, persons associated with a person are, or a person and persons associated with him are, in a position to cast, or control the casting of, not less
than three-twentieths of the maximum number of votes that might be cast at a general meeting of the body corporate—•
that person shall be deemed to have an interest in those
securities.
(6 ) A person shall not be deemed not to have an interest in securities by reason only that he has the interest in the securities jointly with another person.
(7 )
(7 ) It is immaterial for the purposes of determining whether a person has an interest in securities, that the interest cannot be related to particular debentures, stocks, shares, bonds or notes or interests as defined in section 76 of the Companies Act, 1961.
(8) There shall be disregarded—
(a)
an interest in securities if the interest is that of a person who holds the securities as bare trustee;
(b)
an interest in securities of a person whose ordinary business includes the lending of money if he holds the interest only by way of security for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money;
(c)
an interest of a person in securities, being an interest held by him by reason of his holding a prescribed office; and
(d)
a prescribed interest in securities, being an interest of such person, or of the persons included in such class of persons, as is prescribed.
(9 ) An interest in securities shall not be disregarded
by reason only of—
(a) its remoteness; or
(b) the manner in which it arose.
( 1 ) For the purposes of this Act, the following persons are associated with a person :—
6.
(a)
a person who carries on a business of dealing in securities in partnership with the person;
(b)
subject to subsection ( 2 ) , a person who is a partner of the person otherwise than by reason that he carries on a business of dealing in securities in partnership with the person;
(c)
(c)
a trustee of a trust in relation to which the person benefits or is capable of benefiting otherwise than by reason of transactions entered into in the ordinary course of business in connection with the lending of money;
(d)
a person who is a director of a body corporate that carries on a business of dealing in securities of which the person is also a director;
(e)
subject to subsection ( 2 ) , a person who is a director of a body corporate of which the person is a director, not being a body corporate that carries on a business of dealing in securities;
(f)
a corporation that by virtue of section 6 (5) of the Companies Act, 1961, is deemed to be related to the person;
(g)
a person in accordance with whose directions, instructions or wishes the person is accus tomed, or is under an obligation, whether formal or informal, to act, in relation to the securities;
(h)
a person who is accustomed, or is under an obliga tion, whether formal or informal, to act, in accordance with the directions, instructions, or wishes of the person in relation to the securities;
(i) a body corporate that is, or the directors of which
whether formal or informal, to act, in accordance are, accustomed, or are under an obligation, with the directions, instructions or wishes of the
person in relation to the securities; or(j) a body corporate in accordance with the directions, instructions, or wishes of which or of the directors of which the person is accustomed, or is under an obligation, whether formal or informal, to act, in relation to the securities. (2 )
(2 ) Where, in proceedings under this Act, it is alleged
that a person referred to in subsection (1 ) (b ) or (e) was
associated with another person at a particular time, that
person shall be deemed not to have been so associated in
relation to a matter to which the proceedings relate unless
the person alleging the association proves that the first-
mentioned person at that time knew or ought reasonably to
have known the material particulars of that matter.(3 ) For the purposes of this Act, where two or more persons constitute a dealer, a person is associated with the dealer if he is associated with any of those persons.
P A R T II .—ADMINISTRATION. DIVISION 1.—General.
(1 ) Except as otherwise expressly provided by this Act or any other Act, a power, authority, duty or function con ferred or imposed by this Act or that other Act on the Commissioner or the Commission may be exercised or per formed by a person authorised by the Commissioner or the Commission to exercise or perform that power, authority, duty or function.
7.
(2 ) Without limiting the generality of subsection ( 1 ) , a reference to the Commissioner or the Commission in subsec tion (3 ) or in section 8, 9, 30, 70, 78, 79, 118, 124 or 132 includes a reference to any person who is or has been
a relevant power, authority, duty or function conferred or authorised by the Commissioner or the Commission to perform imposed by this Act on the Commissioner or the Commission. (3) In the exercise or performance of its powers, authorities, duties and functions under this Act in relation to any of the matters referred to in clause 2 (1 ) of the Interstate Corporate Affairs Agreement within the meaning of the Companies Act, 1961, the Commission shall have regard to any determinations made by the Interstate Corporate Affairs Commission constituted under that agreement.
(1) For the purpose of ascertaining whether a person who is, or at any time has been, a dealer, an investment adviser, a dealer's representative or an investment representa tive is complying or has complied with the provisions of this Act that are or were applicable to him in that capacity and, where such a person is or was the holder of a licence, the conditions or restrictions (if any) subject to which the licence was granted, the Commissioner may inspect and make copies of or take extracts from any—
8.
(a) books, required by this Act or, in the case of a person who is or was the holder of a licence, by the conditions and restrictions to which the licence is or has been subject, to be kept by that person; and (b) banker's books, and the books of a dealer in so far as they relate to the business carried on by the first-mentioned person in his capacity as a dealer, an investment adviser, a dealer's representative or an investment representative.
(2) A person shall not make an inspection under this section unless he has made a declaration in the prescribed form to the effect that he will not make, except for the purposes of this Act or in the course of criminal proceedings or proceed ings under this Act or the Companies Act, 1961, a record of, or divulge or communicate to another person, any information that he acquires by reason of the making of the inspection.
(3) Where, under a provision of a declared law of a participating State corresponding to this section, a person is
| by or under that declared law to be kept by a person, the first- | authorised to inspect any books or banker's books required |
| mentioned person— |
(a)
shall have the same powers in the State in relation to any such books or banker's books in the State as he would have had if he had been authorised under subsection (1), the reference in that subsection to this Act were a reference to that declared law, the reference in that subsection to a licence were a
reference
reference to a licence within the meaning of that declared law and the books or banker's books were books or banker's books referred to in that subsection; and
(b) shall not exercise those powers in the State unless he has made a declaration under a provision of a declared law of the participating State corresponding to subsection (2) .
(4) The powers that a person has under the declared law of a participating State that, by reason of subsection (3) , may be exercised in New South Wales, may be exercised by the Commissioner or a person authorised by him where, in any particular case, the corresponding interstate officer of the participating State has authorised the Commission or person so to do.
(5) A person who—
(a)
makes an inspection under this section before he has made a declaration referred to in subsection (2) or (3) ;or
(b)
except for the purposes of this Act or in the course of criminal proceedings or proceedings under this Act or the Companies Act, 1961, after making such a declaration makes a record of or divulges or com municates to another person any information that he has acquired by reason of the making of the inspection—
is guilty of an offence and liable to a penalty not exceeding
$200.(6) It is not an offence under subsection (5) to divulge or communicate information to the holder of a prescribed office.
(7) In this section, "prescribed office" means an office held under the law of a State or Territory of the Common wealth that is declared by the regulations to be a prescribed office for the purposes of this section.
9. The Commission may require—
(a) a dealer;
(b) a recognised dealer;
(c) an authorised trustee corporation within the mean ing of the Marketable Securities Act, 1971; or (d) a person whom the Commission has reasonable cause to believe has acquired or disposed of securities as trustee for, or for or on behalf of, another person—
to disclose to the Commission, in relation to any acquisition or disposal of securities, the name of the person from or to or through whom or on whose behalf the securities were acquired or disposed of and the nature of the instructions given to the person referred to in paragraph (a) , (b), (c) or (d) in respect of the acquisition or disposal.
1 0 . (1) If, on an application made by the Commission to
the Court, there is shown to be reasonable cause to believe that a person has committed an offence in connection with dealing in securities and that evidence of the commission of an offence is to be found in any banker's books or in any books of or under the control of a dealer, investment adviser, dealer's representative or investment representative, whether
| dealer, investment adviser, dealer's representative or investor not those books or any of them relate to the business of a | ment representative, an order may be made— |
(a) authorising the Commissioner or a person nomin ated by the Commission and named in the order to inspect those books or any of them and make copies thereof or take extracts therefrom for the purpose of investigating and obtaining evidence of the offence; or
(b)
(b)
requiring a person who is specified in the order to produce to the Commissioner or a person so nomin ated and named in the order, at a place specified in the order, those books or such of them as are so specified in order to enable the Commissioner or that person to inspect them and make copies of them or take extracts from them for the purpose of investigating and obtaining evidence of the offence.
(2) An order under this section may not require books to be produced at a place other than the place of business of the person named in the order unless the Court is satisfied that the books are not required in the conduct of the business or that there are special reasons requiring the books to be produced at some other place.
(3) An appeal does not he against an order or decision of the Court on or in relation to an application under this section.
Where the Commission has reason to suspect that a person has committed an offence under a provision of this Act or has been guilty of fraud or of an offence against any other law with respect to dealing in securities, the Commission may make such investigation as the Commission thinks expedient for the due administration of this Act.
1 1 .
1 2 . (1) Where—
(a)
on the application of the Commission, it appears to the Court that a person has committed an offence under this Act or any other Act or law relating to trading or dealing in securities or has contravened the conditions or restrictions of a licence or the business rules of a stock exchange or is about to do an act with respect to trading or dealing in securities that, if done, would be such an offence or contravention; or
(b)
(b)
on the application of a stock exchange, it appears to the Court that a person has contravened the business rules of the stock exchange—
the Court may, without prejudice to any orders it would be entitled to make otherwise than pursuant to this section, make one or more of the following orders, namely :—
(c) in the case of persistent or continuing breaches of this Act or any other Act or law relating to trading or dealing in securities or the conditions or restrictions of a licence—an order restraining a person from carrying on a business of dealing in securities, acting as an investment adviser or as a dealer's representative or investment representative, or from holding himself out as so carrying on business or so acting; (d) an order restraining a person from acquiring, dis posing of or otherwise dealing with any securities that are specified in the order; (e) an order appointing a receiver of the property of a dealer or of property that is held by a dealer for or on behalf of another person, whether on trust or otherwise; (f) an order declaring a contract relating to securities to be void or voidable; (g) for the purpose of securing compliance with any other order under this section, an order directing a person to do or refrain from doing a specified
act; and (h) any ancillary order deemed to be desirable in consequence of the making of an order under any of the preceding provisions of this subsection.
(2) The Court shall, before making an order under subsection (1) , satisfy itself, so far as it can reasonably do so, that the order would not unfairly prejudice a person.
(3)
(3) The Court may, before making an order under subsection (1) , direct that notice of the application be given to such persons as it thinks fit or direct that notice of the application be published in such manner as it thinks fit, or both.
(4) A person appointed by order of the Court under subsection (1) as a receiver of the property of a dealer—
(a) may require the dealer to deliver to the receiver any property of which he has been appointed receiver or to give to the receiver all information concerning that property as may reasonably be required; (b) may acquire and take possession of any property of which he has been appointed receiver; (c) may deal with any property that he has acquired or of which he has taken possession in any manner in which the dealer might lawfully have dealt with the property; and (d) has such other powers in respect of the property as the Court specifies in the order.
(5) In subsections (1) (e) and (4) , "property" in relation to a dealer includes money, securities and documents of title to securities or other property entrusted to or received on behalf of any other person by the dealer or another person in the course of or in connection with a business of dealing in securities carried on by the dealer.
(6) A person shall not contravene or fail to comply
with—
(a)
an order under subsection (1) that is applicable to him; or
(b)
a requirement of a receiver appointed by order of the Court under subsection (1) .
Penalty : $2,000 or imprisonment for one year or both.
( 7 )
(7) Subsection (6) does not affect the powers of the
Court in relation to the punishment of contempts of the Court.
(8) The Court may rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.
(1) Subject to this section, a person appointed or employed for the purposes of this Act, or authorised to dis charge any function of the Commissioner or the Commission or any function on behalf of the Commissioner or the Com mission shall not, except to the extent necessary to perform his official duties, or discharge such a function, either directly or indirectly, whether before or after he ceases to be so appointed, employed or authorised, make a record of, or divulge or communicate to any person, any information that is gained by or conveyed to him by reason of his being so appointed, employed or authorised, or make use of any such information, for any purpose other than the discharge of his official duties or the discharge of that function.
1 3 .
Penalty : $2,000 or imprisonment for one year or both.
| (2) Nothing in subsection (1) precludes a person from producing a document to a court in the course of criminal proceedings or proceedings under this Act or the Companies Act, 1961, or from divulging or communicating to a court in the course of such proceedings any matter or | thing coming under his notice in the performance of his official | duties or in discharging a function referred to in that |
| subsection. | ||
| (3) Where the regulations prescribe for the purposes of this section an office held under the law of the State or of the Commonwealth or of another State or a Territory of the Commonwealth, it is not a contravention of subsection (1) to divulge or communicate to the holder of that office information connected with the duties of the office. |
1 4 . (1) Subject to subsection (2), a person who is or
has been the Commissioner or is or has been a person appointed or employed for the purposes of this Act or is or has been authorised to discharge any function of the Commissioner or the Commission or any function on behalf of the Commissioner or the Commission and has, by reason that he is or was the Commissioner or is or was so appointed, employed or authorised, 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 : $10,000 or imprisonment for five years.
(2) Where a person to whom subsection (1) applies is in possession of information as mentioned in subsection (1) 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 the first- mentioned transaction took place if the information had been generally available.
(3) The provisions of section 114 ( 3 ) , (4), (5), (6) and (7) apply to and with respect to a liability to pay compensation under subsection (2) as if a reference in those provisions to section 114 (1) or (2) were a reference to
subsection (2) of this section. (1) A person appointed or employed for the purposes of this Act or authorised to discharge any function of the Commissioner or the Commission or any function on behalf of the Commissioner or the Commission, who, in the course of his official duties or the discharge of the function, is required to consider any matter relating to—
1 5 .
(a) securities in which he has an interest;
(b)
(b)
securities of the same class as securities in which he has an interest; or
(c) a person or body—
(i) with whom, or with which, he has been employed or associated; or
(ii) of whom, or of which, he is or has been a client; or
(iii) who was, or which was, a client of a person or body with whom, or with which, he was employed or associated—
shall forthwith so inform the Commissioner in writing.
(2) A person who contravenes subsection (1) is guilty of an offence and is liable to a penalty not exceeding $2,000 or to imprisonment for a period not exceeding one year or both.
DIVISION 2.—Investigations.
16. In this Division, unless the contrary intention appears—
"inspector" means an inspector appointed under this Division;
"prescribed person" means a person suspected or believed by an inspector, on reasonable grounds, to be capable of giving information concerning any matter being, or to be, investigated by the inspector pursuant to this Division.
(1) The Minister, where it appears to him to be in the public interest to do so, by instrument in writing—
1 7 .
(a)
may appoint a person as an inspector to investigate any matters concerning dealing in securities and to report on the investigation in such manner as the Minister directs; and
(b) may revoke any such appointment.
(2) The Minister shall, in an instrument appointing
an inspector, specify—
(a)
full particulars of the terms and conditions to which the appointment is subject; and
(b)
the matters into which an investigation is to be made.
(3) Where—
(a)
under a law of another State or of a Territory of the Commonwealth corresponding to this Division, a person has been appointed to investigate matters concerning dealing in securities; and
(b)
the Minister is satisfied that in connection with that investigation it is expedient that an investigation be made into those matters in the State—
the Minister may, by instrument in writing appoint that person
Minister is of the opinion that an investigation ought not to be an inspector to investigate those matters in the State or, if the made into all those matters, into such of those matters as he is satisfied ought to be investigated and specifies in the instrument.
(4) Where, under subsection (3), the Minister may
appoint a person to investigate matters concerning dealing in
securities in the State, he may by instrument in writing declare
that
that that person shall have such of the powers of an inspector appointed under subsection (1) in relation to the investiga tion subject to such terms and conditions as the Minister specifies in the instrument as if that person had been appointed an inspector under subsection (1) and upon that declaration that person shall have those powers.
(5) Where two or more inspectors have been appointed, whether by the same instrument or by different instruments, to investigate matters concerning dealing in securities, each of those inspectors may exercise his powers or perform his functions under this Division independently of the other inspector or inspectors.
(6) The Minister may, at any time by notice in writing given to an inspector, vary particulars or matters specified in the instrument of appointment, being particulars or matters referred to in subsection (2) .
(7) Nothing in this or any other Act prevents the appointment of the Commission as an inspector and where the Commission is so appointed, any reference in this Act that includes an inspector includes the Commission.
(8) Section 20 (1) (a) , in its application to the Commission as an inspector, shall be deemed to be amended by omitting the words ", the power to administer oaths, and the power to examine on oath".
(1) An inspector may, by notice in the prescribed form given in the prescribed manner, require a prescribed
1 8 .
| person— |
(a)
to produce to the inspector such books relating to a matter to which his investigation relates as are in the custody or under the control of that person;
(b)
to give to the inspector all reasonable assistance in connection with the investigation; and
(c)
to appear before the inspector for examination on oath—
and may administer an oath to that person.
(2)
(2) Where books are produced to an inspector under this section the inspector may take possession of the books for such period as he considers necessary for the purposes of his investigation, and during that period he shall permit a person who would be entitled to inspect any of those books if they were not in the possession of the inspector to inspect at all reasonable times such of those books as that person would be so entitled to inspect.
(3) A prescribed person shall not—
(a) refuse or fail to comply with a requirement of an inspector under subsection (1) to the extent to which that person is able to comply with it; (b) in purported compliance with such a requirement knowingly furnish information that is false or mis leading in a material particular; or (c) when appearing before an inspector for examination in pursuance of such a requirement— (i) make a statement that is false or misleading in a material particular; or
(ii) refuse or fail to take an oath.
Penalty: $1,000.
prescribed person— (4) A duly qualified legal practitioner acting for a (a) may attend an examination of that person; and (b) may, to the extent that the inspector permits—
(i) address the inspector; and
(ii) examine that person—
in relation to matters in respect of which the inspec
tor has questioned him.
(5)
(5) A prescribed person is not excused from answer ing a question put to him by an inspector on the ground that the answer might tend to incriminate him but, where that person claims, before answering the question, that the answer might incriminate him, neither the question nor the answer is admissible in evidence against him in criminal proceedings other than proceedings under subsection (3) or in relation to a charge of perjury in respect of the answer.
(6) A person who complies with a requirement of an inspector under subsection (1) does not incur a liability to any person by reason only of that compliance.
(7) A person who is required to attend for examina tion under this section is entitled to such allowances and expenses as are prescribed.
(8) Where an inspector is satisfied that a prescribed person has failed without lawful excuse to comply with a requirement of the inspector to the extent to which the person is able to comply with it, the inspector may certify the failure by writing under his hand to the Court.
(9) Where an inspector gives a certificate under
subsection (8), the Court may inquire into the case and, if it
is satisfied that the prescribed person to whom the certificate
relates has failed without lawful excuse to comply with a
requirement of the inspector to the extent to which he is able
to comply with it—
(a)
may order the prescribed person to comply with that requirement within such period as is fixed by the Court; or
(b)
may punish the prescribed person in the same manner as if he had been guilty of contempt of the Court and if it sees fit, also make an order under paragraph (a).
(10)
(10) An investigation under this Division shall, for the purposes of Part IV of the Evidence Act, 1898, be deemed to be a legal proceeding.
(1) An inspector may cause notes of an examination made by him under this Division to be recorded in writing and to be read to or by the person examined, and may require that person to sign the notes and, subject to this section, notes signed by that person may be used in evidence in legal proceedings against him.
1 9 .
(2) A copy of the notes signed by a prescribed person shall be furnished by the inspector, without charge, to that person on request made by that person in writing.
(3) Notes made pursuant to this section that relate to a question the answer to which a prescribed person has claimed might tend to incriminate him may not be used as evidence in criminal proceedings other than proceedings under section 18 (3) or in relation to a charge of perjury in respect of the answer.
(4) Nothing in this section affects or limits the admissibility of other written evidence or of oral evidence.
(5) The Minister may give a copy of notes made
pursuant to this section to a duly qualified legal practitionerwho satisfies the Minister that he is acting for a person who
is conducting, or is, in good faith, contemplating, legal pro ceedings in respect of any matters into which an investigation is made by an inspector under this Division. (6) A duly qualified legal practitioner to whom a copy of notes is given under subsection (5) shall not use the notes otherwise than in connection with the institution or preparation of, and in the course of, legal proceedings, and shall not publish or communicate for any other purpose the notes or any part of the contents of them to any other person.
Penalty : $200.
(7)
(7) Where a report is made under this Division,:
notes that are recorded pursuant to this section in relation to
that report shall be furnished with the report.
2 0 . (1) An inspector may, by instrument in writing—
(a)
delegate all or any of his powers or functions under this Division (except this power of delegation, the power to administer oaths, and the power to examine on oath); and
(b) vary or revoke a delegation given by him.
(2) A power or function delegated by an inspector may be exercised or performed by the delegate in accordance with the instrument of delegation as in force from time to time.
(3) A delegate shall, at the request of a prescribed person, produce the instrument of delegation for inspection.
(4) A delegation under this section by an inspector of a power or function does not prevent the exercise of the power or the performance of the function by the inspector.
(1) Subject to subsection (2), the Minister shall, unless in his opinion there is good reason for not divulging the contents of the report, give a copy of a report made to
2 1 .
| him under this Division to each person to whom, in the opinion of the Minister, the report ought to be given by | reason that it relates to the affairs of that person to a material |
| extent. | |
| (2) Subject to subsection (3) , the Minister shall not give a copy of a report under this Division to a person if the Minister believes that legal proceedings that have been, or that in his opinion might be, instituted might be unduly prejudiced by giving the report to that person. |
( 3 )
(3) The Court before which legal proceedings are brought against a person for or in respect of matters dealt with in a report under this Division may order that a copy of the report be given to that person.
(4) The Minister may, if he is of the opinion that it is in the public interest to do so, cause the whole or any part of a report under this Division to be printed and published.
(5) If from a report under this Division or from the notes of an examination under this Division, it appears to the Minister that an offence may have been committed by a person and that a prosecution ought to be instituted, the Minister shall cause a prosecution to be instituted and prosecuted.
(6) Where it appears to the Minister that a prosecu tion ought to be instituted, he may, by notice in writing given before or after the institution of a prosecution in accordance with subsection (5), require a person whom he suspects or believes on reasonable grounds to be capable of giving infor mation concerning any matter to which the prosecution relates (not being a person who is or, in the opinion of the Minister, is likely to be a defendant in the proceedings or is or has been a solicitor acting for such a person) to give all assistance in connection with the prosecution or proposed prosecution that he is reasonably able to give.
(7) Where a person to whom a notice has been given
under subsection (6) fails to comply with a requirement
ment.
specified in the notice the Court may, on the application of the Minister, direct that person to comply with the require
(8) If from a report under this Division, or from the notes of an examination under this Division, the Minister is of the opinion that proceedings ought in the public interest to be brought by a person for the recovery of damages in respect of fraud, misfeasance or other misconduct in connection with the matters to which the investigation relates or for the
recovery
recovery of property of that person, the Minister may cause proceedings to be brought accordingly in the name of that person.
2 2 . An inspector may, when making a report to the Minister under this Division, give to the Minister books of which he has taken possession under section 18 and the Minister—
(a) may retain the books for such period as he con siders to be necessary to enable a decision to be made as to whether or not legal proceedings ought to be instituted as a result of the investigation; (b) may retain the books for such further period as he considers to be necessary to enable any such proceedings to be instituted and prosecuted; (c) may permit other persons to inspect the books while they are in his possession; (d) may permit the use of the books for the purposes of legal proceedings instituted as a result of the investigation; and (e)
shall permit a person who would be entitled to inspect any one or more of the books if they were not in the possession of the Minister to inspect at all reasonable times such of the books as that person would be so entitled to inspect.
An inspector shall not require disclosure by a duly qualified legal practitioner of a privileged communication made to such a practitioner in that capacity except as regards the name and address of his client.
2 3 .
(1) Subject to this section, the expenses of and incidental to an investigation by an inspector appointed under section 17 (including the expenses incurred and payable by the Minister in any proceedings brought by him in the name of a person under section 21 (8)) shall be defrayed out of moneys provided by Parliament for the purpose.
2 4 .
(2) An application referred to in subsection (3) may be made to a court by or on behalf of the Minister—
(a)
in the course of proceedings in that court instituted by the Minister in the name of a person under section 21 ( 8 ) ; or
(b)
upon, or within 28 days after, a conviction or judgment by a court in proceedings certified by the Minister, for the purposes of the application, to have been instituted as a result of an investigation by an inspector appointed under this Division—
and the court may make such order with respect to the
application and its subject-matter as it thinks fit.(3) The application that may be made under subsec tion (2) is an application for one or more of the following orders, namely :—
(a)
that a specified person pay the whole, or a specified part, of the expenses of and incidental to the
investigation that led to the proceedings; (b)
where expenses have been paid under subsection (1), that a specified person pay the expenses or reimburse the Crown to the extent of the payment; or
(c)
that a specified person pay, or reimburse the Crown in respect of, the remuneration of any servant of the Crown concerned with the investigation.
(4)
(4) Where the Minister is of the opinion that the whole or any part of the expenses of or incidental to an investigation by an inspector appointed under section 17 (including the expenses incurred and payable by the Minister in any proceedings brought by him in the name of a person under section 21 (8)) should be paid by a person to whose affairs the investigation relates, the Minister may by order direct that person to pay a specified amount, being the whole or part of the expenses, within the time and in the manner specified.
(5) Where a person has failed to comply with an order of the Minister under subsection (4), proceedings may be taken in a court of competent jurisdiction to recover the amount in question as a debt due to the Crown.
| 2 5 . | (1) | A person who— |
(a) conceals, destroys, mutilates or alters a book relating to a matter that is the subject of investigation by an inspector under this Division; or (b) sends, attempts to send or conspires with another person to send, such a book out of the State—
is guilty of an offence and liable to a penalty not exceeding $5,000 or to imprisonment for a period not exceeding two years.
| (2) It is a defence to a prosecution under this section to prove that the person charged did not act with intent to defeat the purposes of this Division or to delay or obstruct the carrying out of an investigation under this Division. |
(1) Where an investigation is being made under this Division and it appears to the Minister that facts concerning securities to which the investigation relates cannot be ascertained because a prescribed person has failed or refused
2 6 .
to
to comply with a requirement of an inspector, the Minister may, by order published in the Gazette, make one or more of the following orders, namely :—
(a)
an order restraining a specified person from disposing of an interest in specified securities;
(b)
an order restraining a specified person from acquiring an interest in specified securities;
(c)
an order restraining the exercise of voting or other rights attached to specified securities;
(d)
an order directing a person who is registered as the holder of securities in respect of which an order under this section is in force to give notice in writing of that order to any person whom he knows to be entitled to exercise a right to vote attached to those securities;
(e)
an order directing a body corporate not to make payment, except in the course of winding up, of a sum due from the body corporate in respect of specified securities;
(f)
an order directing a body corporate not to register the transfer or transmission of specified securities; or
(g)
an order directing a body corporate not to issue shares to a person who holds shares in the body corporate by reason of his holding shares in the body corporate or in pursuance of an offer made
to such a person by reason of his holding shares in the body corporate.
(2) A copy of an order under subsection (1) and
of any order by which it is revoked or varied shall be served—
(a) where it relates to specified securities—
(i) on the body corporate by which the securities were issued or made available;
(ii)
(ii) where the securities are rights or options, on the body corporate against which the right or option is, or would be, enforceable; or
(iii) on the body corporate that will issue or make available the securities; and
(b) where it relates to a body corporate, on the body corporate.
(3) Where an order made under subsection (1) is in force, a person aggrieved by the order may apply to the Court for revocation of the order, and the Court may, if it is satisfied that it is reasonable to do so, revoke the order and any order by which it has been varied.
(4) A person shall not contravene or fail to comply with an order under subsection (1) .
Penalty : $1,000. Default penalty: $200.
(5) A prosecution under this section shall not be instituted without the consent in writing of the Minister.
P A R T III.—STOCK EXCHANGES.
A person shall not establish, maintain or provide, or assist in establishing, maintaining or providing, or hold himself
2 7 .
| out as maintaining or providing, a stock market that is not the stock market of a stock exchange. | Penalty : $5,000. |
| 2 8 . |
(1) A body corporate that proposes to establish, maintain or provide a stock market may apply in the prescribed form and manner to the Minister for approval as a stock exchange.
( 2 )
(2) The Minister may, in writing, approve as a stock exchange a body corporate that makes an application under subsection (1) if he is satisfied—
(a) that the business rules of the body corporate make satisfactory provision— (i) for the exclusion from membership of persons who are not of good character and high business integrity;
(ii) for the expulsion, suspension or disciplining of members for conduct inconsistent with just and equitable principles in the transaction of business or for a contravention of or failure to comply with the business rules of the proposed stock exchange or the provisions of this Act;
(iii) with respect to the conditions under which securities may be listed for trading in the stock market of the proposed stock exchange;
(iv) with respect to the conditions governing dealings in securities by members;
(v) with respect to the class or classes of securities that may be dealt with by members; and
(vi) generally for the carrying on of the business
of the proposed stock exchange with due regard to the interests of the public; (b)
that the body corporate has made or adopted listing rules and, where the listing rules are adopted, has made provision to the effect that an amendment to the listing rules made by another person is of no effect until the body corporate adopts the amendment;
(c)
(c)
that the listing rules made or adopted by the body corporate make satisfactory provision—
(i) with respect to conditions under which securities may be traded on the stock market of the proposed stock exchange; and
(ii) generally for the protection of the interests of the public; and
(d)
that the interests of the public will be served by the granting of his approval.
| 2 9 . | (1) | Where— |
(a) an amendment is made by way of rescission, altera tion or addition, to the business rules of a stock exchange; or (b) an amendment, by way of rescission alteration or addition, to the listing rules is made or adopted by the stock exchange—
the stock exchange shall, forthwith after the making or adoption of the amendment, give written notice of the amendment to the Minister.
(2) A notice under subsection (1) shall—
(a) set forth the text of the amendment; (b) specify the date on which the amendment was made or adopted; and (c) contain an explanation of the purpose and effect of the amendment.
(3) If the notice required to be given by subsection (1) is not given within 21 days after the amendment is made or adopted, the amendment ceases to have effect.
(4)
P91375—55
(4) The Minister may, within 21 days after the receipt by him of a notice under this section, give notice to the stock exchange that he disallows the whole or a specified part of the amendment to which the notice relates, and thereupon the amendment, to the extent of the disallowance, ceases to have effect.
(1) A stock exchange shall provide such assistance to the Commissioner and the Commission as the Commissioner and the Commission reasonably require for the performance of their functions and duties.
3 0 .
(2) Where a stock exchange reprimands, fines, suspends, expels or otherwise takes disciplinary action against a member of the stock exchange, it shall forthwith give to the Commission in writing particulars of the name of the member, the reason for and nature of the action taken, the amount of the fine (if any) and the period of the suspension (if any).
(3) The Commissioner is entitled at all reasonable times to full and free access for any of the purposes of this Act to the trading floor of a stock market maintained or provided by a stock exchange and to all books kept by the stock exchange and may make copies of, or take extracts from, any such books.
(4) A person who refuses or fails without lawful
excuse to allow the Commissioner access in accordance with
tained or provided by a stock exchange or to books kept by subsection (3) to the trading floor of a stock market main a stock exchange or otherwise hinders, obstructs or delays the Commissioner in the exercise of his powers under that subsection is guilty of an offence and is liable to a penalty not exceeding S1,000 or to imprisonment for a period not exceeding six months.
(5) In this section, "trading floor", in relation to a
stock market maintained or provided by a stock exchange,
means any place or facility maintained or provided by the
stock
stock exchange for the sale, purchase or exchange of securities by members of the stock exchange, or by members and other persons.
Where any person who is under an obligation to observe, enforce or give effect to the business rules or listing rules of a stock exchange fails to observe, enforce or give effect to any of those business rules or listing rules, as the case may be, the Court may, on the application of the Commission or of a person aggrieved by the failure and after giving to the person against whom the order is sought an opportunity of being heard, make an order giving directions to the last-mentioned person concerning the observance or enforcement of, or the giving effect to, those business rules or listing rules.
3 1 .
PART IV.—LICENCES.
3 2 . (1) A person shall not carry on a business of dealing
in securities (whether or not that business is part of, or is carried on in conjunction with, any other business) or hold himself out as carrying on such a business unless he is the holder of a dealers licence or is a recognised dealer.
Penalty : $2,000 or imprisonment for one year, or both. (2) Subsection (1) does not apply to or in relation
to an exempt dealer.
A person who is employed by, or acts for or by arrangement with, a dealer (not being an exempt dealer) shall not do an act on behalf of the dealer in relation to a business of dealing in securities carried on by the dealer (other than an act in the course of work of a kind ordinarily per formed by accountants, clerks or cashiers) unless the first- mentioned person—
3 3 .
(a) is the holder of a dealers licence;
(b) is a recognised dealer; or
(c)
(c)
is the holder of a dealer's representatives licence or of a corresponding licence under a declared law of a participating State or under a corresponding previous law of that State and the dealer is named in that licence as a dealer on whose behalf the first-mentioned person may act.
Penalty : $1,000 or imprisonment for six months.
(1) A person shall not act as, or hold himself out to
be, an investment adviser unless he is the holder of an invest
ment advisers licence or is a recognised investment adviser.
3 4 .
Penalty : $2,000 or imprisonment for one year, or both.
(2) Subsection (1) does not apply to or in relation to the holder of a dealers licence, an exempt dealer or a recognised dealer.
A person who is employed by, or acts for or by arrangement with, an investment adviser (not being a holder of a dealers licence or an exempt dealer) in connection with a business carried on by the investment adviser of advising other persons or in the course of which the investment adviser issues or publishes analyses or reports concerning securities, shall not do an act on behalf of the investment adviser in connection with that business (other than an act in the course of work of a kind ordinarily performed by accountants, clerks
3 5 .
or cashiers) unless the first-mentioned person—
(a)
is the holder of a dealers licence or an investment advisers licence;
(b)
is a recognised dealer or recognised investment adviser; or
(c)
is the holder of an investment representatives licence or of a corresponding licence under a declared law of a participating State or under a corresponding
previous
previous law of that State and the investment adviser is named in that licence as an investment adviser on whose behalf the first-mentioned person may act.
Penalty : $1,000 or imprisonment for six months.
(1) A person may apply to the Commission for a dealers licence or an investment advisers licence.
3 6 .
(2) A natural person may apply to the Commission for a dealer's representatives licence in which the holder of a dealers licence is, or two or more such holders are, named as a dealer or as dealers on whose behalf the person may act.
(3) A natural person may apply to the Commission for an investment representatives licence in which the holder of an investment advisers licence is, or two or more such holders are, named as an investment adviser or as investment advisers on whose behalf the person may act.
(4) An application for the grant of a licence shall be made in the prescribed form and manner and shall be accom panied by the prescribed fee.
(5) The Commission may require an applicant to
supply the Commission with such further information as the
Commission considers necessary in relation to the application.
Subject to section 49 and the regulations, where an application is duly made for the grant of a dealers licence or an investment advisers licence and the Commission, after con sideration of the character and financial position of the applicant and, if the applicant is a body corporate, the character of each of the directors of the body corporate and of the secretary of the body corporate and after consideration
3 7 .
of
of the interests of the public, is of the opinion that the applicant is a fit and proper person to hold the licence to which the application relates, the Commission shall grant the application.
3 8 . (1) Subject to section 49 and the regulations, where an application is duly made for the grant of a dealer's repre sentatives licence or an investment representatives licence and the Commission is of the opinion that the applicant is a fit and proper person to hold the licence to which the application relates and to act on behalf of the holder or holders of dealers licences or investment advisers licences, as the case may be, named in the application, the Commission shall grant the application.
(2) A dealer's representatives licence shall specify the person, being the holder of a dealers licence, or two or more such persons, on whose behalf the holder of the dealer's representatives licence may act.
(3) An investment representatives licence shall specify the person, being the holder of an investment advisers licence, or two or more such persons, on whose behalf the holder of the investment representatives licence may act.
(1) The holder of a representatives licence may make application to the Commission in the prescribed form
3 9 .
may be, on whose behalf he may act. of dealers licences or investment advisers licences, as the case and manner for a variation of the name or names of holders (2) Where an application is duly made under sub section (1), the Commission may, if of the opinion that the applicant is a fit and proper person to act on behalf of the holder or holders of dealers licences or investment advisers licences, as the case may be, named in the application, vary the licence by including a name in or deleting a name from, or both including a name in and deleting a name from, the
name
name or names specified in the licence as holders of dealers licences or investment advisers licences, as the case may be, on whose behalf the applicant may act.
4 0 . ( 1 ) A licence is subject to—
(a)
such conditions and restrictions as are prescribed; and
(b)
subject to section 49, such conditions and restric tions as the Commissioner imposes when granting the licence or at any time during which the licence is in force.
(2) Without limiting the generality of subsection
( 1 ) , conditions and restrictions referred to in subsection (1)
| (b) | - | |||||
|
approved by the Commission.
(3) Subject to section 49, the Commission may, at
any time, revoke or vary conditions or restrictions imposed by
the Commission under subsection (1) (b) .
(4) Where the Commission imposes, or varies or revokes, conditions or restrictions under this section in relation to a licence granted to a member of a stock exchange, the Commission shall inform the stock exchange and, if the member is a partner in a member firm, the member firm.
4 1 . (1) The Commission shall keep a Register of Licence Holders for the purposes of this Act.
(2) The Commission shall enter in the Register of
Licence Holders—
(a)
in relation to the holder of a dealers licence or an investment advisers licence—
(i) the name of the holder of the licence;
(ii) where the holder is a body corporate—the names of the directors and secretary of the body corporate;
(iii) the date on which the licence was granted;
(iv) the address of the principal place of business at which the holder of the licence carries on the business to which the licence relates and the addresses of other places (if any) at which that business is carried on; and
(v) where such a business is carried on under a name or style other than the name of the holder of the licence—the name or style under which the business is carried on;
(b) in relation to the holder of a representatives licence—
(i) the name of the holder of the licence;
(ii) the date on which the licence was granted;
(iii) the name of, and the address of the principal place of business of, each dealer or invest ment adviser named in the licence as a person on whose behalf the holder of the licence may act; and
(iv)
(iv) where the business of any such dealer or investment adviser is carried on under a name or style other than the name of the dealer or investment adviser—the name or
style under which the business is carried on;
and
(c) in relation to the holder of any licence—
(i) particulars of any suspension of the licence;
(ii) such other matters as are prescribed.
(3) Where a person ceases to be the holder of a
licence, the Commission shall remove from the Register of Licence Holders the name of the person and any other
particulars entered in the Register in relation to the person.
(4 ) A person may, on payment of the prescribed fee,
inspect and make copies of or take extracts from the Register
of Licence Holders.
(5 ) The particulars that are in the register kept
under section 18A of the Securities Industry Act, 1970, imme diately before the commencement of this Act shall be deemed to form part of the Register of Licence Holders under this
section.
(6 ) The Commission may enter in the Register of
Licence Holders particulars of recognised licensees of which
the Commission has been notified by, or on behalf of, a Commissioner under a declared law, being particulars of—
(a) the name of the recognised licensee;
(b) the date (if known) on which the recognised licensee became a recognised licensee; and
(c) such other matters as are prescribed.
( 7 )
(7 ) Where the Commission is notified by or on
behalf of a Commissioner under a declared law or becomes
aware that a person whose name is entered in the Register of
Licence Holders as a recognised licensee has ceased to be a licensee under that declared law the Commission shall
remove from the Register the name of the person and any other particulars entered in the Register in relation to the person.
4 2 . Where—
(a) the holder of a dealers licence ceases to carry on the business to which the licence relates; (b) the holder of an investment advisers licence ceases to act as, or hold himself out to be, an investment adviser; (c) the holder of a representatives licence ceases to be employed or act in connection with the business carried on by a dealer or an investment adviser named in the licence, as the case may be, and the licence has not been varied under section 39; or
(d)
a change occurs in any matter particulars of which are required by section 41 (2 ) (a) or (b) to be entered in the Register of Licence Holders in relation to the holder of a licence—
occurrence of the event concerned, give to the Commission, the holder of the licence shall, not later than 21 days after the in the prescribed form, particulars in writing of the event
concerned.The holder of a licence shall, in each year at the time when or during the period within which he is required to lodge
4 3 .
a statement referred to in section 44 with the Commission, pay
to the Commission the prescribed fee.
( 1 ) The holder of a licence shall lodge with the Commission, in respect of each year or part of a year during which the licence is in force, a statement containing such information as is prescribed.
4 4 .
(2 ) The statement referred to in subsection (1) shall
be lodged by the holder of the licence—
(a) where the licence is a dealers licence—during the period within which an auditor's report referred to in section 64 is required to be lodged with the Commission; (b) where the licence is an investment advisers licence— within the period of one month immediately before the anniversary of the date on which the licence was granted; and (c) where the licence is a representatives licence—on a prescribed date in each year or within a prescribed period after that date. 4 5 . The Commission may, on the application of the holder
of a licence, in its discretion, extend, or further extend, the time for paying a fee under section 43 or lodging a statement under section 44.
4 6 . ( 1 ) Where— (a) the holder of a licence, being a natural person—
(i) becomes bankrupt, applies to take the
benefit of a law for the relief of bankrupt or
insolvent debtors, compounds with his creditors or makes an assignment of his remuneration or any part of his property for their benefit;
(ii)
(ii) is convicted of an offence involving fraud or dishonesty punishable by imprisonment for
a period of or exceeding three months; or
(iii) becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act, 1958, or a person under detention under Part VII of that Act;
(b) the holder of a licence, being a body corporate—
(i) is commenced to be wound up, is under
official management or has ceased to carry
on business;(ii) is a body corporate in respect of the property of which a receiver and manager has been appointed whether by the Court
or otherwise; or
(iii) has entered into a compromise or scheme
of arrangement with its creditors;
(c)
the holder of a licence fails to comply with the provisions of section 43 or 4 4 ; or
(d)
the holder of a licence requests the Commission to revoke the licence—
the Commission may revoke the licence.
(2 ) Where a director or secretary or a person con
cerned in the management of a body corporate that is the holder of a dealers licence or an investment advisers licence, contravenes or fails to comply with this Act by reason that he does not hold a licence or a licence held by such a director, secretary or person is suspended, the Commission may revoke the licence held by the body corporate.
(3 )
(3 ) If, in a case to which subsection (1 ) (a) or (b)
whichever is the lesser.
(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 a loss or profit shall not be commenced after the expiration of two years after the date of completion of the transaction in which the loss or profit occurred.
(6)
(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 the body corporate or other person for recovery of a loss or profit referred to in subsection (1) or (2) .
(7) Nothing in subsection (1) or (2) affects any
liability that a person may incur under any other law.
115. (1) A dealer shall not, except as permitted by subsection (2) , enter into, as principal or on behalf of a person associated with him, a transaction of purchase or sale of securities of a body corporate that are permitted to be traded on the stock market maintained or provided by a stock exchange if a client of the dealer who is not associated with the dealer has instructed the dealer to purchase or sell, respectively, securities of the body corporate of the same class and the dealer has not complied with the instruction.
Penalty : S1,000 or imprisonment for six months.
(2) Subsection (1) does not apply in relation to the entering into of a transaction by a dealer as principal or on behalf of a person associated with him if—
(a) the instructions from the client of the dealer required
client to be effected only on specified conditions the purchase or sale of securities on behalf of the relating to the price at which the securities were to be purchased or sold and the dealer has been unable to purchase or sell the securities by reason of those conditions; or
(b)
the transaction is entered into in prescribed circumstances.
116. (1) A person who is a dealer or an investment
adviser and an employee of that person shall not, as principals, jointly purchase or subscribe for, or agree to purchase or subscribe for, any securities.
(2) A person who is a partner in a partnership that carries on a business of dealing in securities or a business of advising other persons concerning securities and an employee of the partnerhip shall not, as principals, jointly purchase or subscribe for, or agree to purchase or subscribe for, any securities.
(3) A person who is a partner in a partnership that carries on a business in the course of which advice is given, or analyses or reports are issued or published, concerning securities and an employee of the partnership shall not, as principals, jointly purchase or subscribe for, or agree to purchase or subscribe for, any securities.
(4) A person who is a dealer or an investment adviser shall not give credit to a person who is employed by that person if—
(a)
the credit is given for the purpose of enabling or assisting the second-mentioned person to purchase or subscribe for any securities; or
(b)
the person giving the credit knows or has reason to believe that the credit will be used for the purpose of purchasing or subscribing for securities.
(5) A person who is a partner in a partnership that
carries on a business of dealing in securities shall not give
credit to a person who is employed by the partnership if—
(a)
the credit is given for the purpose of enabling or assisting the person to whom the credit is given to purchase or subscribe for any securities; or
(b)
the person giving the credit knows or has reason to believe that the credit will be used for the purpose of purchasing or subscribing for securities.
(6)
(6) A person who is a partner in a partnership that carries on a business in the course of which advice is given, or analyses or reports are issued or published, concerning securities shall not give credit to a person who is employed by the partnership if—
(a) the credit is given for the purpose of enabling or assisting the person to whom the credit is given to purchase or subscribe for any securities; or (b) the person giving the credit knows or has reason to believe that the credit will be used for the purpose of purchasing or subscribing for securities.
(7) A person who is an employee of a sole trader or member firm in connection with a business of dealing in securities carried on by the sole trader or member firm shall not, as principal, purchase or agree to purchase any securities or units of securities unless the sole trader or member firm acts as the agent of the person in respect of the transaction.
Penalty : $1,000 or imprisonment for six months.
PART XI.—MISCELLANEOUS.
117. A person who is not—
(a) a member of a stock exchange; or
(b) a person who is a member of, or is a partner in a partnership that is recognised as a member firm by, a stock exchange within the meaning of a declared law—
shall not take or use, or by inference adopt, the name or title of stockbroker or sharebroker or take or use or have attached to or exhibited at any place a name, title or descrip tion implying or tending to the belief that he is a stockbroker or a sharebroker.
118. A person aggrieved by the refusal of the Commission
to grant a licence or by the revocation of a licence under sec tion 47 or by any other act or decision of the Commission may appeal to the District Court which may confirm the refusal, revocation, act or decision or give such directions in the matter as seem proper or otherwise determine the matter but this subsection does not apply to an act or decision of the Commission—
(a) in respect of which a provision in the nature of an appeal or review is expressly provided in this Act; or (b) which is declared by this Act to be conclusive or final or is embodied in a document declared by this Act to be conclusive evidence of an act, matter or thing. 119. (1) A person shall not, in, or in connection with,
an application for a licence, make a statement that is false or misleading in a material particular knowing it to be false or misleading or wilfully omit to state any matter or thing without which the application is misleading in a material respect.
(2) A person shall not lodge with the Commission for the purposes of this Act a document that contains a statement that to his knowledge is false or misleading.
Penalty : $1,000 or imprisonment for six months. 120. (1) A person who is required by a provision of this
Act to maintain, make, or keep a register or any accounting or other record in relation to a business carried on by him shall preserve that register or record for the prescribed period, whether or not he ceases to carry on that business before the expiration of that period.
(2)
(2) The prescribed period for the purposes of
subsection (1) is—
(a) in relation to a register or a record other than an accounting record, the period of five years next after the day on which the last entry was made therein; or (b) in relation to an accounting record, the period of five years next after the last day of the accounting period to which the record relates.
(3) Subsections (1) and (2) do not apply to or in relation to a contract note or copy of a contract note received or issued by a dealer who is a member of a stock exchange if the matters referred to in section 51 (2) in relation to the contract note are recorded—
(a) by the stock exchange; or
(b)
subject to such conditions, if any, as the Commission may impose, by the dealer—
in a manner approved by the Commission and the record of
those matters is retained for not less than five years.
(4) Subject to the Archives Act, 1960, the Com mission may, if of the opinion that it is no longer necessary or desirable to retain it, destroy or otherwise dispose of any document that is given to or lodged with the Commission under or for the purposes of this Act and that has been in the possession of the Commission for such period as is
| prescribed for the purposes of this subsection, either generally | or in relation to a particular document or class of documents. | 121. | (1) Where a person— |
(a)
conceals, destroys, mutilates or alters a book relat ing to the business carried on by a dealer or required under this Act to be kept by the holder of a licence or by a financial journalist within the meaning of Part VII; or
(b)
(b)
sends, attempts to send or conspires with another person to send such a book out of the State—
and as a result, a purpose of this Act is defeated or an exam ination, investigation or audit under this Act is prevented, delayed or obstructed, the first-mentioned person is guilty of an offence and liable to a penalty not exceeding $2,000 or to imprisonment for a period not exceeding one year.
(2) In a prosecution of a person for an offence under subsection (1) , it is a defence if the person proves that he did not act with intent to defeat the purposes of this Act or to prevent, delay or obstruct the carrying out of an examination, investigation or audit under this Act.
122. Where matter that is used or intended to be used in connection with the keeping of a book required to be kept under this Act or a record referred to in section 120 is recorded or stored by means of a mechanical device, an electronic device or any other device in an illegible form, a person who wilfully—
(a)
records, or stores by means of that device matter that he knows to be false or misleading in a material particular;
(b) destroys, removes or falsifies matter that is recorded or stored by means of that device; or (c) fails to record or store matter by means of that device with intent to falsify any entry made or intended to be compiled, wholly or in part, from that matter—
is guilty of an offence and is liable to a penalty not exceeding $1,000 or to imprisonment for a period not exceeding six months or both.
123. A person required by this Act to keep a book or record shall take reasonable precautions for guarding against falsification of the book or record and for facilitating dis covery of any falsification.
124. A person shall not—
(a) obstruct or hinder the Commissioner or the Com mission in the exercise or performance of any of his or its powers, authorities, duties or functions under this Act; or (b) fail to produce to the Commissioner or the Com mission any books that the Commissioner has, pursuant to any of the provisions of this Act, required that person to produce for inspection by the Commissioner or the Commission; or (c) fail to comply with a requirement of the Com mission under section 9. 125. (1) A person who contravenes or fails to comply
with a provision of this Act is guilty of an offence.
(2) A person who is guilty of an offence under this Act for which a specific penalty is not prescribed by another provision of this Act is liable to a penalty not exceeding $500.
| 126. Where a body corporate is guilty of an offence against this Act any officer of the body corporate who was knowingly a party to the commission of the offence is also guilty of that offence. |
127. (1) Proceedings for an offence against a provision of this Act (other than section 51) may be taken by the Commission or, with the consent of the Minister, by any other person.
(2)
(2) Notwithstanding anything in any Act, proceed ings for an offence against a provision of this Act, punishable summarily may be brought within three years after the time at which the offence is alleged to have been committed or, with the consent of the Minister, at any later time.
128. (1) An offence against this Act punishable by imprisonment for a period exceeding two years is an indict able offence.
(2) An offence against this Act that is not an
indictable offence shall be prosecuted summarily.
129. (1) Where a prosecution has been instituted or the
Minister or the Commission is of the opinion that a prosecu tion in respect of an offence against this Act ought to be instituted against a person (in this section referred to as "the defendant") the Minister or the Commission—
(a)
if the defendant is an individual, may require any person who is or was a partner, servant or agent of the defendant; or
(b)
if the defendant is a body corporate, may require any person who is or was an officer or a servant, or an
agent, of the defendant—
to assist in the prosecution, and a person who is so required shall give all assistance in connection with the prosecution that that person is reasonably able to give.
(2) The Minister or the Commission shall not make such a requirement as is mentioned in subsection (1) of a person who, in the opinion of the Minister or the Com mission, is or is likely to be a defendant in the proceedings.
(3)
(3) If a person to whom subsection (1) (a) or (b) relates fails to give assistance as required by that subsection he is guilty of an offence and, without affecting any penalty to which he may be liable for the offence, the Court may, on the application of the Minister, order that person to comply with the requirement within such time, and in such manner, as the Court may order.
(4) In this section, "agent", in relation to the defendant includes a banker of the defendant and a person employed as an auditor by the defendant, whether that person is a servant or an officer of the defendant or not.
130. (1) If, in the State, a person does an act or omits
to do an act and that person, if he had done that act or had omitted to do that act in another State or in a Territory of the Commonwealth, would have been guilty of an offence against the law of that State or Territory that corresponds to a provision of this Act, that person is guilty of an offence against that provision of this Act.
(2) Where an act or omission constitutes an offence both under this Act and under a law of another State or of a Territory of the Commonwealth that corresponds to a pro vision of this Act and the offender has been punished under that law, he is not liable to be punished in respect of the offence against this Act.
(1) Where the expression "Default penalty" and
figures specifying the amount of the default penalty appear in or at the foot of a section, or subsection of a section, of this Act, being a section or subsection a contravention of which is an offence or which provides that a person is in specified circumstances guilty of an offence, a person who has been convicted of that offence is guilty of a further offence
if
if the offence continues after he has been so convicted and is punishable, upon conviction for the further offence, by a penalty, not exceeding the amount of the default penalty specified, for each day during which the offence continues.
(2) Where an offence is committed by a person by reason of his failure to comply with a provision of this Act by or under which he is required to do anything within a particular period, that person commits the further offence referred to in subsection (1) while the failure to do that thing continues notwithstanding that that period has expired.
132. (1) The Governor may make regulations for or
with respect to—
(a) prescribing forms for the purposes of this Act;
(b)
prescribing fees to be paid in respect of matters or things required for the purposes of this Act;
(c)
the conditions and restrictions to which licences are to be subject;
(d)
the publication of advertisements offering the services of dealers or investment advisers or offer ing securities for purchase or sale, and the form and content of those advertisements;
(e)
the form and content of balance sheets and profit and loss accounts required by this Act to be
prepared by dealers; (f)
the furnishing to the Commissioner of information in addition to, or in variation of, the information contained in a prescribed form lodged with him;
(g)
the manner in which, the persons by whom, and the directions in accordance with which the prescribed forms, or any of them, shall or may be signed, prepared or completed, and the regulation generally of the signing, preparation and completion of those forms or any of them;
(h)
(h)
the times within which information required to be furnished to the Commission pursuant to this Act shall be so furnished; and
(i) generally prescribing any matters or things authorised or required to be prescribed under this Act.
(2) The regulations may provide that, subject to any prescribed terms and conditions, the provisions of this Act or any of those provisions—
(a) do not have effect in relation to a specified person or to a person who is a member of a specified class of persons— (i) who is or may be a dealer or investment adviser by reason only of his doing anything that is incidental to another business;
(ii) who does not deal in securities for or on behalf of any other person; or
(iii) who is a dealer or investment adviser by reason only of the entering into by him of any specified transaction or class of transactions;
(b) do not have effect in relation to the representative of a person referred to in paragraph ( a ) ;
(c)
have effect in relation to a person referred to in paragraph (a) or (b) to such extent as is prescribed; or
(d)
do not have effect in relation to a specified trans action or class of transactions entered into by a specified person or class of persons.
(3)
(3) Except as otherwise expressly provided in this Act, the regulations may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
(4) Regulations for the purposes of section 18 (7) may be made by reference to a scale of expenses for witnesses who attend before the Court.
PART X I I . — T H E CORPORATE AFFAIRS COMMISSION. 133. (1) The Governor may, subject to this Act, appoint
a Commissioner for Corporate Affairs who is hereby incor porated as a corporation sole with the corporate name "Corporate Affairs Commission".
(2) The Commission—
(a) has perpetual succession;(b) shall have an official seal;
(c)
may take proceedings, and be proceeded against, in its corporate name;
(d)
may, subject to this Act, purchase, exchange, take or lease, hold, dispose of by way of lease or sale,
and otherwise deal with property; (e) may do and suffer all other things that corporations may, by law, do and suffer and that are necessary for or incidental to the purposes for which it is constituted; (f) has the powers, authorities, duties and functions conferred or imposed on it by or under this or any other Act; and (g) is, for the purposes of any Act, a statutory body representing the Crown.
(3)
(3) The seal of the Commission shall not be affixed to any instrument or writing except in the presence of the Commissioner or Deputy Commissioner or of some other person who is authorised by or under this Act to affix the seal to the instrument or writing and the Commissioner or other person so authorised shall attest by his signature the fact and date of the seal being so affixed.
(4) All courts and persons acting judicially—
(a) shall take judicial notice of the seal of the Commis sion that has been affixed to an instrument or writing; and (b) shall, until the contrary is proved, presume that the seal was properly affixed.
134. (1) The Commissioner shall be appointed for a term, not exceeding 7 years, specified in the instrument of his appointment and shall, if otherwise qualified, be eligible for re-appointment from time to time for a term, not exceeding 7 years, specified in the instrument of his re-appointment.
(2) A person who is of or above the age of 65 years shall not be appointed as Commissioner or continue in that office.
| (3) The Commissioner shall not, during his term of office, engage in any paid employment outside the duties | of his office except with the approval of the Governor, and | shall receive such salary and allowances as the Governor |
| may from time to time determine. | ||
| (4) The provisions of the Public Service Act, 1902, do not apply to or in respect of the appointment by the Governor of the Commissioner and the Commissioner is not subject to the provisions of that Act during his term of office as Commissioner. |
(5)
(5) The Commissioner shall be deemed to have
vacated his office—
(a) if he dies;
(b) if without the approval of the Governor he engages during his term of office in any paid employment outside the duties of his office; (c) if he resigns his office by writing under his hand addressed to the Governor and the Governor accepts the resignation; (d) if he becomes a bankrupt, applies to take the benefit of any laws for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes any assignment of his estate for their benefit: (e) if he becomes a temporary patient, a continued treatment patient, a protected person or an incapable person within the meaning of the Mental Health Act, 1958, or a person under detention under Part V I I of that Act;
(f)
if he absents himself from duty for a period exceed ing fourteen consecutive days except—
(i) on leave granted by the Minister;
(ii) through illness or other unavoidable cause;
or
(iii) pursuant to a right preserved by section 135 ; if he is convicted in the State of a felony or a misdemeanour that is punishable by imprisonment for twelve months or upwards or if he is convicted elsewhere than in the State of an offence that, if committed in the State, would be a felony or misdemeanour so punishable;
(g)
(h)
(h)
if he is removed from office by the Governor for misbehaviour or incompetence;
(i) on the day on which he attains the age of 65 years.
(6) The Governor may remove a Commissioner
from office on the ground of misbehaviour or incompetence.
(7) Where a Commissioner who, immediately before his appointment as Commissioner, was an officer of the Public Service, ceases to be Commissioner otherwise than pursuant to subsection (5) (paragraph (c) excepted) he shall, if he has not attained the age of 60 years, be appointed to some office in the Public Service not lower in classification and salary than that which he held immediately before his appointment as Commissioner.
135. (1) In this section "superannuation scheme" means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under an Act.
(2) Subject to subsection (3) and to the terms of his appointment, where a Commissioner was, immediately before his appointment as Commissioner—
(a) an officer of the Public Service;
(b) a contributor to a superannuation scheme; (c) an officer employed by a statutory body; or
(d)
a person in respect of whom provision was made by an Act that he retain any rights accrued or accruing to him as an officer or employee,
he—
(e)
shall retain any rights accrued or accruing to him as such an officer, member, contributor or person;
(f)
(f)
may continue to contribute to any superannuation scheme to which he was a contributor immediately before his appointment as Commissioner; and
(g)
shall be entitled to receive any deferred or extended leave or any payment, pension or gratuity,
as if he had continued to be such an officer, member, con tributor or person during his service as Commissioner, and-—•
(h) his service as Commissioner shall be deemed to be service as an officer, member or employee for the purpose of any law under which he continues to contribute or by which that entitlement is conferred; and (i) he shall be deemed to be an officer or employee of the Crown, and the Crown shall be deemed to be his employer, for the purposes of the superannua tion scheme to which he is entitled to contribute under this section.
(3) Where a Commissioner—
(a)
would, but for this subsection, be entitled under subsection (2) to contribute to a superannuation scheme, or to receive any payment, pension or gratuity under a superannuation scheme; and
(b)
becomes a contributor to another superannuation scheme (whether upon his appointment as Com missioner or at any later time while he holds office as Commissioner)—
he ceases to be so entitled and the provisions of subsection (2) (i) cease to apply to or in respect of him.
(4) Subsection (3) does not operate to prevent the payment to a Commissioner upon his ceasing to be a contributor to a superannuation scheme of such amount as would have been payable to him if he had ceased by reason of his resignation to be an officer or employee for the purposes of that scheme.
(5)
(5) A Commissioner shall not, in respect of the same period of service, be entitled to claim a benefit under this Act and another Act.
136. (1) The Governor may, under and in accordance
with the Public Service Act, 1902, appoint a Deputy Com missioner for Corporate Affairs who, as an officer of the Commission, may exercise and discharge any power, authority, duty or function conferred or imposed on the Commissioner and the Commission by or under this Act (section 139 (1) excepted) or any other Act.
(2) If the Commissioner is absent from duty or if there is a vacancy in the office of Commissioner, the Deputy Commissioner may, if the Governor so directs, be paid such allowances during the period of that absence or vacancy as the Governor specifies when giving the direction.
(3) The Governor may, under and in accordance with the Public Service Act, 1902, appoint Assistant Commis sioners for Corporate Affairs who, as officers of the Commission, shall assist the Commissioner in the exercise and discharge of the powers, authorities, duties and functions conferred or imposed on the Commissioner and the Commission by or under this Act or any other Act.
(4) If both the Commissioner and the Deputy
Commissioner are absent from duty or if there is a vacancy in the office both of Commissioner and Deputy Commissioner, the powers, authorities, duties and functions of the Commis sioner and the Commission may, if the Governor so directs, by order published in the Gazette, be exercised and discharged by an Assistant Commissioner specified in the order and subsection (2) applies to that Assistant Commissioner as if he were the Deputy Commissioner.
137. (1) The Governor may, under and in accordance with the Public Service Act, 1902, appoint and employ such officers and employees as may be necessary for the exercise or discharge by the Commission of its powers, authorities, duties and functions.
(2) An officer or employee under subsection (1) is in this Act referred to as an officer or employee of the Commission.
138. (1) Section 7 does not extend to the function conferred on the Commission by section 139 (1).
(2) The official seal of the Commission may be affixed to an instrument or writing by an officer or employee of the Commission authorised so to do either generally or in a particular case or class of cases.
139. (1) Subject to this section, the Commission is charged with the administration of this Act.
(2) The Commission shall, as and when directed by the Minister so to do, report to the Minister with respect to the policy the Commission is pursuing or proposes to pursue in the exercise or discharge of its powers, authorities, duties and functions or such of them as are specified by the Minister when giving the direction.
(3) The Commission shall observe and carry out
any direction given by the Minister on a matter of policy.
140. (1) Except where otherwise expressly provided by
or under this or any other Act, all money payable to the Commission under this or any other Act shall be collected and received by the Commission on account of, and shall be paid into, the Consolidated Revenue Fund.
(2)
(2) The accounts of the Commission shall be
audited by the Auditor-General who shall have, in respect
thereof, all the powers conferred on the Auditor-General by
any law for the time being in force relating to the audit of public accounts, and the Audit Act, 1902, shall apply to the Commissioner, the Commission and the officers and employees of the Commission in the same manner as it applies to accounting officers of public departments.
141. The Commission shall, as soon as practicable after. the thirty-first day of December in each year, submit to the Minister for presentation to Parliament a report on the exercise and discharge by the Commission, during the year ended on that day, of the powers, authorities, duties and functions conferred or imposed upon the Commission by or under this or any other Act.
142. After the commencement of this Act, a reference in any Act, by-law, regulation, ordinance, statutory instru ment or other instrument to—
(a)
the Registrar as defined by the Companies Act, 1961, immediately before the commencement of section 13 of the Securities Industry (Amendment) Act, 1971; or
(b)
the Corporate Affairs Commission constituted by the Securities Industry Act, 1970,
shall be construed as a reference to the Corporate Affairs
| Commission constituted by this Act. |
143. The Companies Act, 1961, is amended—
(a)
by omitting from the definition of "Commission" in section 5 (1) the words "Securities Industry Act, 1970" and by inserting instead the words "Securities Industry Act, 1975";
(b)
P 91375—58
(b)
by omitting from the definition of "Commissioner" in section 5 (1) the words "appointed under the Securities Industry Act, 1970" and by inserting instead the words "holding office under the Securi ties Industry Act, 1975".
144. The Business Names Act, 1962, is amended—
(a)
by omitting from the definition of "Commission" in section 4 (1) the words "Securities Industry Act, 1970" and by inserting instead the words "Securities Industry Act, 1975";
(b)
by omitting from the definition of "Commissioner" in section 4 (1) the words "appointed under the Securities Industry Act, 1970" and by inserting instead the words "holding office under the Securi ties Industry Act, 1975".
S C H E D U L E S C H E D U L E 1.
Column 1. Column 2.
| Year and | Short title of |
| Number of | Extent of repeal. |
Act. Act.
| 1970, No. 3 5 . . | Securities | The whole Act. |
| Industry Act, 1970. |
| 1970, No. | 5 2 . . | Supreme Court | So much of the Second Schedule as relates to |
| Act, 1970. | Act No. 35, 1970. |
| 1971, No. 1 1 . . | Securities | Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 22 and 24. |
| Industry (Amendment) Act, 1971. | ||
| 1971, No. 6 1 . . | Companies | Section 29. |
| (Amendment) Act, 1971. | ||
| 1972, No. 7 0 . . | New South | Section 72. |
| Wales Retirement Benefits Act, 1972. |
S C H E D U L E 2. SAVINGS AND TRANSITIONAL PROVISIONS.
1. In this Schedule "repealed Act" means the Securities Industry Act, 1970.
2. An authority given under section 5 (22) of the repealed Act in relation to a power, authority, duty or function shall, to the extent
to which it was in force immediately before the commencement of this
Act, be deemed to be an authority duly given under section 7 for the exercise or performance of that power, authority, duty or function.
3. ( 1 ) Where, immediately before the commencement of this Act, a person held office as an inspector appointed under section 5DA of the repealed Act to investigate any matters concerning trading or dealing in securities, this Act applies to and in respect of the inspector and his appointment and to the investigation and related matters in the same way as it would apply if the inspector had been appointed pur suant to section 17 to investigate those matters and to report on the investigation in such manner as the Minister directs.
( 1 )
(2 ) Where, before the commencement of this Act, an act, matter or thing had been done, or had arisen, in the course of an investigation by an inspector appointed under section 5DA of the repealed Act to make the investigation, the act, matter or thing shall, if the investiga tion had not been completed before that commencement, have the same status, operation and effect in relation to the completion of the investigation after that commencement as it would have if it were done or had arisen after that commencement.
4. ( 1 ) A stock exchange that, immediately before the commence ment of this Act, was a stock exchange within the meaning of the repealed Act shall, within two months after that commencement—•
(a) make or adopt listing rules; and
(b) furnish to the Minister a copy of those listing rules.( 2 ) The Minister may, not later than four months after the commencement of this Act, give notice to the stock exchange that he disallows the whole or a specified part of any listing rules a copy of which was furnished to him under subclause ( 1 ) and thereupon the listing rules, to the extent of the disallowance, cease to have effect.
5. ( 1 ) Subject to this clause, a person who, immediately before the commencement of this Act, was the holder of a licence within the meaning of the repealed Act shall, until—
(a)
the date of the expiration of one year after the date of the licence or, if the date of that expiration is less than three months after the commencement of this Act, the expiration of three months after that commencement; or
(b) the licence is revoked—
whichever first occurs, be deemed to be the holder of a licence, corresponding to the first-mentioned licence, granted under Part IV.
( 2 ) During the period of three months mentioned in subclause ( 1 ) , this Act applies to and with respect to a licence that, under that subclause is to be deemed to have been granted under Part IV as if that person were the holder of a licence granted under Part IV and the licence were such a licence. ( 3 ) A licence that, under this clause, is to be deemed to have been granted under Part IV is subject to the conditions and restric tions to which it was subject immediately before the commencement of this Act and to such other conditions and restrictions as may be prescribed or imposed under section 40.
6. ( 1 ) The person who, immediately before the commencement of this Act, held office as Commissioner for Corporate Affairs—
(a) continues in that office under this Act;
(b) so continues in office upon the same terms and conditions as those upon which he was appointed Commissioner under the repealed Act; (c) so continues in office for the residue of the term of office for which he was so appointed; and (d) is eligible for appointment under section 133 with effect from the expiration of that term of office.
( 2 ) For the purposes of any Act, service as Commissioner under the repealed Act shall be deemed to be service as Commissioner under this Act.
7. The repeals effected by this Act do not affect the continuity of the corporation constituted by section 5 ( 1 ) of the repealed Act and that corporation continues as the corporation constituted by section 133.
8. Subject to the Public Service Act, 1902, a person who, immedi ately before the commencement of this Act, held office as Deputy Commissioner for Corporate Affairs or Assistant Commissioner for Corporate Affairs continues in that office after that commencement.
STATUTORY
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