EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO. 153
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
NATIONAL COMPANIES AND SECURITIES COMMISSION
REGULATIONS (AMENDMENT)
1. Section 53 of the National Companies and Securities Commission Act (“the Act”) provides in sub-section (1) that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Sub-section 53(4) of the Act provides that the power of the Governor-General to make regulations shall be exercised only in accordance with advice that is consistent with resolutions of the Ministerial Council for Companies and Securities (“the Council”).
2. The Council was established under an agreement between the Commonwealth and the States (“the agreement”), executed on 22 December 1978, that provides the framework 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.
3. Under sub-clause 45(1) of the agreement, the Council may consider a proposal for the amendment of regulations made under the Commonwealth Acts enacted for the purposes of the co-operative companies and securities scheme. Should the 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 regulations to the Federal Executive Council for making by the Governor-General.
4. The accompanying regulations are identical in form and substance to draft regulations approved by the Council.
5. The purpose of the accompanying regulations is to amend regulation 13 of the National Companies and Securities Commission Regulations (“NCSCR”) to make amendments consequent upon the Northern Territory becoming a party to the Co-operative Companies and Securities Scheme. The Northern Territory Application of Laws legislation, which has been approved by the Council, was approved by the Northern Territory Legislative Assembly on 18 June 1986 with a commencement date of 1 July 1986.
6. NCSCR regulation 13 is amended by adding new paragraphs to prescribe certain enactments for the purposes of paragraph 47(2)(a) of the Act.
New paragraph (aaa) declares the Companies Act 1963 of the Northern Territory a prescribed enactment for the purposes of paragraph 47(2)(a) of the Act.
New paragraph (ja) declares the Companies (Acquisition of Shares) (Application of Laws) Act 1986 of the Northern Territory a prescribed enactment for the purposes of paragraph 47(2) of the Act.
New paragraph (jb) declares the Companies (Application of Laws) Act 1986 of the Northern Territory a prescribed enactment for the purposes of 47(2)(a) of the Act.
New paragraph (md) declares the National Companies and Securities Commission (Northern Territory Provisions) Act 1986 a prescribed enactment for the purposes of 47(2)(a) of the Act.
New paragraph (tf) declares the Securities Industry (Application of Laws) Act 1986 of the Northern Territory a prescribed enactment for the purposes of paragraph 47(2)(a) of the Act.
In paragraph 47(2)(a) the Act provides that nothing in sub-section 47(1) of the Act shall preclude a person from producing a document to a court in the course of criminal proceedings or in the course of any proceedings under this Act, any other prescribed Act or any prescribed State Act. Regulation 13 prescribes the enactments for the purposes of paragraph 47(2)(a).
Overview
The National Companies and Securities Commission Regulations (Amendment) Statutory Rules 1986, issued under the authority of the Attorney-General, were enacted to address the gap created by the Northern Territory becoming a party to the Co-operative Companies and Securities Scheme. These regulations were introduced to amend the National Companies and Securities Commission Regulations to include specific enactments from the Northern Territory, thereby ensuring the seamless application of uniform company law and securities regulation across all participating jurisdictions. The Ministerial Council for Companies and Securities, established under an agreement between the Commonwealth and the States, provided the necessary resolutions that guided the Governor-General in exercising the regulatory powers under the National Companies and Securities Commission Act. The policy objective is to maintain a consistent legal framework for company law and securities regulation throughout Australia, facilitating effective administration and compliance across state and territory borders.
Scope and Application
The National Companies and Securities Commission Regulations (Amendment) Statutory Rules 1986 No. 153 made under the National Companies and Securities Commission Act applies to the entities and enactments within the Northern Territory as prescribed by the regulations. The stated purpose of these regulations is to amend regulation 13 of the National Companies and Securities Commission Regulations to incorporate the Northern Territory as a party to the Co-operative Companies and Securities Scheme, thus ensuring consistency and uniformity in the regulation of companies and securities across the participating jurisdictions. The geographic reach of the Act extends to the six states and the Australian Capital Territory, as established by the agreement between the Commonwealth and the states. The Act is administered by the Ministerial Council for Companies and Securities, with the regulations being made by the Governor-General in accordance with the Council's advice. The amendment does not specify exclusions, exemptions, or thresholds but focuses on aligning the regulatory framework to include the Northern Territory. The regulations may be further extended or restricted through subordinate instruments made under the authority of the Act.
Key Provisions
The primary operative sections of these regulations pertain to the amendment of the National Companies and Securities Commission Regulations (NCSCR). Section 13 of the NCSCR is amended to include several new paragraphs, each designating specific Northern Territory enactments as prescribed enactments for the purposes outlined in section 47(2)(a) of the National Companies and Securities Commission Act (the Act). These new paragraphs (aaa, ja, jb, md, and tf) list the Companies Act 1963, the Companies (Acquisition of Shares) (Application of Laws) Act 1986, the Companies (Application of Laws) Act 1986, the National Companies and Securities Commission (Northern Territory Provisions) Act 1986, and the Securities Industry (Application of Laws) Act 1986, respectively. This amendment ensures that these Northern Territory laws are recognised as prescribed enactments, facilitating their use in court proceedings under the Act.
The regulations impose obligations on entities and individuals operating under the Act to recognise and comply with the prescribed Northern Territory enactments as valid and enforceable within the scope of the Act. This recognition is crucial for ensuring that documents produced in court or other proceedings under the Act, other prescribed Acts, or prescribed State Acts are admissible and legally sound. The prescribed enactments now include specific Northern Territory laws, which must be adhered to in the same manner as other prescribed Acts.
Breaches of these regulations or non-compliance with the prescribed enactments may result in legal consequences. While the specific penalties for non-compliance are not detailed within the regulations, the overarching framework of the Act and related legislation typically includes both civil and criminal penalties. These may encompass fines, imprisonment, or other legal sanctions, depending on the severity and nature of the breach. It is essential for entities and individuals to ensure strict compliance with these regulations to avoid any adverse legal repercussions.