EXPLANATORY STATEMENT
Statutory Rules 1983 No 108
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
SECURITIES INDUSTRY REGULATIONS (AMENDMENT)
Section 150 of the Securities Industry Act 1980 (“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 150(5) 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”). The Council was established under the agreement between the Commonwealth and the States, executed on 22 December 1978, 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 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 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 regulation to the Federal Executive Council for making by the Governor-General.
The accompanying regulation is identical in form and substance to a draft regulation approved by the Council. Its purpose is to replace Form 1 in Schedule 1 to the Securities Industry Regulations with a new form.
Where the National Companies and Securities Commission (“the Commission”), in pursuance of paragraph 12(3A)(f) and (g) of the Act, requires a person to disclose information, it must, under sub-section 12(3D), give the person, at the time the requirement is made, a notice in the prescribed form.
The existing form prescribed in the Regulations for issue in accordance with sub-section 12(3D) of the Act quotes provisions in sub-section 12(3C) of the Act which, by section 10 of the Companies and Securities Legislation (Miscellaneous Amendments) Act 1981, has been replaced by new sub-sections 12(3C) and (3CA). These amended provisions of the Act provide for disclosure to the Commission of information that might tend to incriminate the person providing that information and also provide for the admissibility or non-admissibility of such evidence in criminal proceedings, depending on whether the person claims, before making a statement, that the statement might tend to incriminate him.
As a consequence of amendments of the Act, it is proposed that a new Form 1 incorporating the new sub-sections 12(3C) and (3CA) should be prescribed to replace the existing Form 1.
Overview
The Securities Industry Regulations (Amendment) Statutory Rules 1983 No 108 were enacted in 1983 to address the need for updating regulatory forms to reflect recent legislative amendments to the Securities Industry Act 1980. This amendment was introduced to ensure that the forms prescribed under the Act remain consistent with the current legal framework, particularly in relation to the disclosure of information that might incriminate the person providing it. The regulation was issued under the authority of the Attorney-General and was consistent with the advice and resolutions of the Ministerial Council for Companies and Securities, which oversees the co-operative Commonwealth-State scheme for uniform company law and securities regulation. The policy objective was to maintain the efficacy and integrity of the regulatory processes by ensuring that the prescribed forms accurately reflect the latest legal requirements.
Scope and Application
The Securities Industry Regulations (Amendment) Statutory Rules 1983 No 108, issued under the authority of the Attorney-General, amends the Securities Industry Regulations to align with recent legislative changes to the Securities Industry Act 1980. These regulations apply to all persons and entities required to disclose information to the National Companies and Securities Commission under the Act. The Act operates across the Commonwealth, including the states and territories, reflecting the co-operative Commonwealth-State scheme for uniform law and administration in relation to company law and securities regulation. The new regulations prescribe a revised form for notices required by the Commission to ensure compliance with the updated provisions concerning incriminatory information disclosures. The scope of these regulations extends to all entities subject to the Securities Industry Act 1980, including companies, financial service providers, and other relevant entities within the securities industry. The amendments do not introduce new exclusions or exemptions but ensure that the prescribed forms used by the Commission are current and consistent with the latest legislative amendments.
Key Provisions
The main operative sections of these regulations are sections 150 and 12 of the Securities Industry Act 1980, which allow the Governor-General to make regulations necessary for carrying out the Act and require the National Companies and Securities Commission to provide a notice in a prescribed form when requiring disclosure of information. The regulations also provide for the replacement of the existing Form 1 in Schedule 1 to the Securities Industry Regulations with a new form that reflects recent amendments to the Act.
Under these regulations, the National Companies and Securities Commission has the obligation to issue a notice in the prescribed form when requiring a person to disclose information that might tend to incriminate them. The form must include specific details such as the name of the person required to disclose the information, the information required, and a statement about the potential incrimination and its implications for the admissibility of the evidence in criminal proceedings.
The regulations establish certain offences and consequences for non-compliance. If the National Companies and Securities Commission fails to provide a notice in the prescribed form when requiring disclosure of information, it may be liable to penalties under the Securities Industry Act 1980. The maximum penalties for these offences are not specified in the regulations but would be determined according to the relevant provisions of the Securities Industry Act 1980.
These regulations aim to ensure that the National Companies and Securities Commission follows the correct procedures when requiring the disclosure of potentially incriminating information. By prescribing a new form that reflects recent amendments to the Act, the regulations help to maintain consistency and accuracy in the information provided to individuals and organisations subject to the Securities Industry Act 1980. Failure to comply with the requirements of these regulations may result in penalties for the National Companies and Securities Commission.