National Companies and Securities Commission Amendment Act 1988

Overview

The National Companies and Securities Commission Amendment Act 1988 addresses legislative gaps and clarifications in the administration of company and securities regulation within Australia. Enacted by the Queen, with the assent of both the Senate and the House of Representatives, this Act amends the National Companies and Securities Commission Act 1979 to provide more precise direction on the delegation of the Commission's functions and powers to its divisions. The policy objective of these amendments is to ensure the validity and clarity of previous delegations and to provide a legal framework for the future allocation of the Commission's responsibilities, thus enhancing the efficiency and effectiveness of regulatory oversight.

Scope and Application

The National Companies and Securities Commission Amendment Act 1988 amends the National Companies and Securities Commission Act 1979, providing clarification and alterations to the Commission's capacity to direct its functions or powers through specified Divisions. This Act applies to the National Companies and Securities Commission, which is a federal body, and affects its operations across Australia. It particularly targets the processes by which the Commission can delegate its functions and powers to Divisions of the Commission, ensuring that such delegations are conducted in a manner that complies with the statutory requirements as outlined in the Act. The Act does not explicitly state exclusions or exemptions, but it does clarify the conditions under which previous delegations can be deemed valid, thereby indirectly setting boundaries on what constitutes a valid delegation. The application of the Act is further extended through subordinate instruments that may provide additional rules and regulations necessary for its effective implementation.

Key Provisions

The National Companies and Securities Commission Amendment Act 1988 (Act) amends section 21 of the National Companies and Securities Commission Act 1979 (Principal Act). The key change is the amendment of subsection (1) of section 21 to clarify how the Commission can delegate its functions and powers to a Division of the Commission. Under the new subsection (1), the Commission can, by resolution, direct that its functions or powers in relation to a specific matter, a matter of a particular kind, or a class of matters, shall be performed or exercised by a Division constituted by at least two specified members. This amendment is intended to avoid any doubt about the validity of previous delegations. Subsection (1aa) provides that if a direction was given before the Act commenced and would have been valid under the new subsection (1), it is deemed to have always been valid. However, this deeming does not apply if the validity of the direction had already been called into question in legal proceedings. Subsection (4) is also amended to include a reference to matters of a kind or in a class specified in a direction. The Act imposes several obligations on the Commission. Firstly, it requires the Commission to ensure that any delegation of its functions or powers to a Division is done by resolution and is in accordance with the amended subsection (1) of section 21. This means that any delegation must specify the matter, kind of matter, or class of matters to which it applies and must be made to a Division constituted by at least two specified members. Secondly, if a direction was given before the Act commenced and would have been valid under the new subsection (1), it is deemed to have always been valid, as per subsection (1aa). Finally, the Commission must ensure that any legal proceedings questioning the validity of a direction take into account the provisions of subsection (1ab), which prevents the deeming provision from applying if the validity of the direction had already been called into question. The Act does not explicitly state any offences, penalties, or consequences for breach of its provisions. However, the implications of failing to comply with the Act could include legal challenges to the validity of delegations made by the Commission, which could result in delays or disruptions in the Commission's ability to perform its functions and exercise its powers. Additionally, if the Commission fails to ensure that its delegations are in accordance with the amended subsection (1) of section 21, it may be open to legal challenge and could potentially face penalties or consequences under other legislation, such as the Public Governance, Performance and Accountability Act 2013 (Cth).