EXPLANATORY STATEMENT
STATUTORY RULES 1982 NO.124
Issued by the authority of the Attorney-General
AMENDMENT OF THE SECURITIES INDUSTRY 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. The Agreement is set out in the Schedule to the National Companies and Securities Commission Act 1979 (NCSC Act). The purpose of the NCSC Act is to establish the National Companies and Securities Commission (NCSC).
Under clause 32 of the Formal Agreement, the 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 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 Ministerial Council has passed the following resolutions:
“1. The Ministerial Council resolved unanimously pursuant to paragraph 6(1)(b) of the Formal Agreement that:-
Commonwealth
(A) Companies Regulations (Amendment)
The draft Companies Regulations (Amendment) being as set out in the print dated 10th May, 1982;
and
(B) Companies (Transitional Provisions) Regulations
The draft Companies (Transitional Provisions) Regulations being as set out in the print dated 10th May, 1982;
be approved.
2. The Ministerial Council resolved pursuant to clause 45 of the Formal Agreement that:-
Commonwealth
(A) National Companies and Securities Commission Regulations (Amendment) (S.R. No. 73/62)
The draft National Companies and Securities Commission Regulations (Amendment) (S.R. No. 73/82) being as set out in the print dated 11th May, 1982;
(B) Securities Industry Regulations (Amendment) (S.R. No. 334/81)
The draft Securities Industry Regulations (Amendment) (S.R. No. 394/81) being as set out in the print dated 11th May, 1982;
and
(C) Securities Industry Regulations (Amendment) (S.R. No. 50/82)
The. draft Securities Industry Regulations (Amendment) (S.R. No. 50/82) being as set out in the print dated 11th May, 1982;
be respectively approved.”
The main purpose of the accompanying Regulations is to amend the Securities Industry Regulations by changing references to provisions in the ACT Companies Ordinance 1962 to references to provisions in the Commonwealth Companies Act 1981. Regulation 1 provides that the Regulations are to come into operation on 1 July 1982, which is the date which the Ministerial Council has agreed will be the commencement date of the Companies Act 1981. The Companies Ordinance 1962 is expressly repealed by Schedule 1 of the Companies Act 1981.
Regulation 2 of the accompanying regulations omits a reference in paragraph 6(3)(zf) of the Securities Industry Regulations to the office of Registrar of Companies for the Australian Capital Territory. The ACT Corporate Affairs Commission Ordinance 1980 establishes a Corporate Affairs Commission in the Territory. As the Commission is a body corporate, it will not be possible to prescribe it as an “office”.
Regulation 3 of the accompanying regulations changes references to provisions in the ACT Companies Ordinance 1962 to references to provisions in the Companies Act 1981. Proposed regulation 3(b) also inserts a reference to an invitation to the public into sub-regulation 26(5) of the Securities Industry Regulations. This will mean that, for the purposes of sub-regulation 26(4), “investment company” means a body that invests in securities or interests in land, or both, using funds subscribed following an offer to the public or an invitation to the public.
Regulation 4 of the accompanying regulations provides for a new form for the purposes of paragraph 75(3)(e) of the Securities Industry Act 1980. Paragraph 75(3)(e) was inserted into the Securities Industry Act 1980 by section 33 of the Securities Industry Amendment Act (No.2) 1981 and, by virtue of sub-section 2(3) of that Act, comes into operation on the day on which the Companies Act 1981 comes into operation. It provides that a firm the business name of which is not registered under the Business Names Ordinance 1963 may not consent to act as auditor of a dealer unless there has been lodged with the NCSC a return in the prescribed form. Form 13A (which is inserted into the Securities Industry Regulations by proposed regulation 5(g)) constitutes the prescribed form for the purposes of paragraph 75(3)(e).
Regulation 5 of the accompanying regulations changes references to provisions in the ACT Companies Ordinance 1962 to references to provisions in the Companies Act 1981 and inserts Form 13A into the Securities Industry Regulations (referred to above).
Regulation 6 of the accompanying regulations provides that the Securities Industry Regulations are further amended as set out in the Schedule. These amendments change references to provisions in the ACT Companies Ordinance 1962 to references to provisions in the Companies Act 1981 and make minor drafting changes.