EXPLANATORY STATEMENT
STATUTORY RULES 1982 NO. 168
Issued by the authority of the Attorney-General
AMENDMENT OF THE NATIONAL COMPANIES AND SECURITIES COMMISSION REGULATIONS
On 22 December 1978 the Commonwealth and the States executed a Formal Agreement that provides the framework for a co-operative Commonwealth-State scheme for a uniform system of law and administration in relation to company law and the regulation of the securities industry in the six States and the Australian Capital Territory.
Under clause 32 of the Formal Agreement, the National Companies and Securities Commission (NCSC) is to have responsibility for the entire area of policy and administration with respect to company law and the regulation of the securities industry, subject to directions by the Ministerial Council for Companies and Securities. The Ministerial Council consists of Commonwealth and State Ministers responsible for administering the law relating to companies and the regulation of the securities industry, or their delegates, or the Ministers acting in their office (Formal Agreement, clauses 19 and 20).
Under sub-clause 45(1) of the Formal Agreement, the Ministerial Council may consider a proposal for the amendment of regulations made under the Commonwealth Acts enacted for the purposes of the co-operative scheme. Should the Ministerial Council approve any draft amending regulation which gives effect to such a proposal, the Commonwealth is then required, under. sub-clause 45(2) of the Agreement, to submit the draft regulation to the Federal Executive Council for making by the Governor-General.
The proposed accompanying regulation is identical in form and substance to the draft regulation approved by the Ministerial Council.
The purpose of the accompanying regulation is to amend the National Companies and Securities Commission Regulations (NCSC Regulations) by prescribing the Tasmanian Companies (Application of Laws) Act 1982 for the purposes of paragraph 47(2)(a) of the National Companies and Securities Commission Act 1979 (NCSC Act).
Paragraph 47(1)(a) of the NCSC Act prohibits a person who is, or has at any time been, appointed for the purposes of the NCSC Act or any other prescribed Act from divulging or making use of information acquired by reason of his employment otherwise than in the performance of his official duties. Paragraph 47(2)(a) of
the NCSC Act provides that, notwithstanding this prohibition, a person is not precluded from producing a document to a court in the course of criminal proceedings or in the course of any proceedings under the NCSC Act, any other prescribed Act or any prescribed State Act.
Present regulation 13 of the NCSC Regulations prescribes the following laws for the purposes of paragraph 47(2)(a):
- the Commonwealth Companies (Acquisition of Shares) Act 1980
- the Companies (Acquisition of Shares) (Application of Laws) Act of each State
- the National Companies and Securities Commission (State Provisions) Act of each State
- the Commonwealth Securities Industry Act 1980
- the Securities Industry (Application of Laws) Act of each State
- the Commonwealth Companies Act 1981
- the Companies (Application of Laws) Act of each State except Tasmania.
The Tasmanian Companies (Application of Laws) Act received the Royal Assent on 30 June 1982. The accompanying regulation prescribes the Tasmanian Companies (Application of Laws) Act 1982 for the purposes of paragraph 47(2)(a) of the NCSC Act.
Overview
The National Companies and Securities Commission Regulations Amendment (Tasmanian Companies) Regulations 2004, issued under the authority of the Attorney-General, were enacted to address the legislative gap identified in the National Companies and Securities Commission Act 1979 (NCSC Act) concerning the application of Tasmanian laws within the national scheme for company law and securities regulation. This amendment responds to the Tasmanian Companies (Application of Laws) Act 1982, which received the Royal Assent on 30 June 1982, ensuring consistency and uniformity across the states and territories by updating the relevant regulations. The objective of this regulation, as outlined in the Explanatory Statement, is to prescribe the Tasmanian Companies (Application of Laws) Act 1982 for the purposes of paragraph 47(2)(a) of the NCSC Act, thereby facilitating the production of documents in proceedings under prescribed state acts, including Tasmania, without contravening the confidentiality provisions set out in the NCSC Act.
Scope and Application
The National Companies and Securities Commission Regulations 1982, as amended by the proposed regulation, apply to individuals and entities involved in company law and the securities industry across Australia, specifically within the framework established by the National Companies and Securities Commission (NCSC). This encompasses the regulation of securities trading and the enforcement of company law in alignment with the co-operative scheme between the Commonwealth and the states, including the Australian Capital Territory. The regulation specifically addresses the disclosure of confidential information acquired by NCSC personnel, allowing exceptions for information produced in court proceedings under specified acts. By prescribing the Tasmanian Companies (Application of Laws) Act 1982, the regulation ensures that Tasmania is included within the scope of prescribed state laws, thereby standardising the application of the confidentiality provisions across all states and territories. The regulation's jurisdictional reach is national, covering all Commonwealth and state laws pertinent to the NCSC's responsibilities.
Key Provisions
The key sections of the legislation are primarily found in the National Companies and Securities Commission Act 1979 (NCSC Act) and the National Companies and Securities Commission Regulations (NCSC Regulations). Section 47(1)(a) of the NCSC Act establishes a prohibition on individuals who have been appointed for the purposes of the NCSC Act or any other prescribed Act from disclosing or using information obtained in their employment outside the scope of their official duties. Section 47(2)(a) provides an exception to this prohibition, allowing the production of documents in the course of criminal proceedings or any proceedings under the NCSC Act, any other prescribed Act, or any prescribed State Act. Regulation 13 of the NCSC Regulations currently lists various Acts that are prescribed for the purposes of this exception. The proposed regulation seeks to amend this list by including the Tasmanian Companies (Application of Laws) Act 1982.
The obligations and requirements imposed by this legislation are primarily directed towards individuals who are or have been appointed for the purposes of the NCSC Act or any other prescribed Act. These individuals must adhere to the confidentiality requirements set out in Section 47(1)(a) of the NCSC Act, which means they cannot disclose or use information obtained in their employment outside the scope of their official duties. However, they are permitted to produce documents in specified proceedings, as outlined in Section 47(2)(a). The addition of the Tasmanian Companies (Application of Laws) Act 1982 to Regulation 13 of the NCSC Regulations extends this permission to proceedings under this Act, aligning it with the other prescribed State Acts.
The legislation does not explicitly detail specific offences, penalties, or consequences for breach. However, breaches of Section 47(1)(a) of the NCSC Act, which pertains to the misuse of confidential information, could potentially lead to civil or criminal consequences. The penalties for such breaches would depend on the nature and severity of the breach, as well as any additional provisions under related Acts or common law. The inclusion of the Tasmanian Companies (Application of Laws) Act 1982 in Regulation 13 of the NCSC Regulations ensures that individuals are aware of the scope of permissible disclosures in proceedings under this Act, thereby reducing the risk of inadvertent breaches.