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NATIONAL COMPANIES AND SECURITIES COMMISSION ACT 1979 No. 173, 1979 - SCHEDULE
SCHEDULE
Sub-section 3 (1)
AN AGREEMENT made the twenty-second day of December, One thousand nine hundred
and seventy-eight, between-
THE COMMONWEALTH OF AUSTRALIA of the first part,
THE STATE OF NEW SOUTH WALES of the second part,
THE STATE OF VICTORIA of the third part,
THE STATE OF QUEENSLAND of the fourth part,
THE STATE OF SOUTH AUSTRALIA of the fifth part,
THE STATE OF WESTERN AUSTRALIA of the sixth part and
THE STATE OF TASMANIA of the seventh part.
WHEREAS-
(A) it is generally acknowledged in the interests of the
public and of persons and authorities concerned with the
administration of the laws relating to-
(a) companies; and
(b) the regulation of the securities industry,
that there should be uniformity both in those laws and in their administration
in the States and Territories of Australia in order to promote commercial
certainty and bring about a reduction in business costs and greater efficiency
of the capital markets and that the confidence of investors in the securities
market should be maintained through suitable provisions for investor
protection;
(B) the Governments of the Commonwealth and of the States of
Australia are agreed that such uniformity will be
achieved by establishing and implementing a co-operative
scheme the objectives of which are to ensure that-
(a) the legislation relating to the scheme is, and continues to be,
uniform throughout Australia at all times;
(b) the legislation is administered on a uniform basis;
(c) the Commonwealth and the States are able to co-operate with each other
in regard to the matters to be provided in the legislation and the way
in which the legislation is administered;
(d) the legislation is capable of effective administration throughout
Australia with the minimum of procedural requirements and is so
administered; and
(e) changes in the legislation are proposed for consideration as
appropriate from time to time and amendments made when the need for
reform arises;
(C) as the result of conferences between their respective
Ministers the Governments have reached agreement on a
scheme to achieve those objectives;
(D) the essential element of the scheme is an agreement
between the Commonwealth and the States to provide for
the introduction of legislation, the establishment and
operation of a Ministerial Council and of a National
Companies and Securities Commission and for matters
relating to the functioning of the scheme as hereinafter
appears; and
(E) the funds and other resources required for the
administration of each State or Territory to carry out
its functions in accordance with the scheme are to be
provided by the respective parties to that agreement:
NOW IT IS HEREBY AGREED as follows:
PART I-INTERPRETATION
1. In this agreement, except where a contrary intention appears-
(a) ''the Commonwealth'' means the Commonwealth of Australia as a party to
this agreement;
(b) ''State'' means a State of the Commonwealth of Australia that is at
the relevant time a party to this agreement;
(c) ''the States'' means all the States that are for the time being
parties to this agreement; and
(d) ''Territory'' includes, in addition to a mainland Territory, an
external Territory of the Commonwealth to which the operation of this
agreement is at any time and for the time being extended in accordance
with clause 50 and ''Australia'' extends to any such Territory.
2. In this agreement, unless the contrary intention appears or the context
otherwise requires-
''financial year'' means a period of twelve months ending on a thirtieth day
of June and, where the relevant provision of this agreement is applicable
during part only of any such period, means the portion of the period during
which the provision so applies;
''the Commonwealth Acts'' means the legislation of the Parliament of the
Commonwealth that is provided for by this agreement as amended from time to
time consistently with this agreement;
''the Interstate Corporate Affairs Agreeement'' means the agreement so named
made the 18th February 1974 between the States of New South Wales, Victoria
and Queensland to which the State of Western Australia has become a party;
''the Ministerial Council'' means the Ministerial Council for Companies and
Securities established by Part VII;
''the National Commission'' means the National Companies and Securities
Commission to be established by the Commonwealth Acts; and
''the State Acts'' means legislation of the Parliament of a State that is
provided for by this agreement as amended from time to time consistently with
this agreement.
3. In this agreement, unless a contrary intention appears-
(a) a reference to a Part is a reference to the relevant Part of this
agreement;
(b) a reference to a clause is a reference to the relevant clause of this
agreement; and
(c) a reference to a sub-clause is a reference to the relevant sub-clause
of the clause in which the reference appears or of such other clause
as the reference indicates.
PART II-OPERATION OF AGREEMENT
4. (1) This agreement shall come into force when it has been executed by all
of the parties hereinbefore designated.
(2) This agreement may, after its coming into force, be amended only by the
unanimous decision of all parties for the time being with representatives in
the Ministerial Council with a right to vote in proceedings of that Council.
5. In the event that a State, including a State which has become a party
pursuant to clause 48, ceases to be a party, this agreement shall nevertheless
continue in force with respect to the Commonwealth and the States which are
parties when the cessation takes effect.
6. A State shall cease to be a party to this agreement if-
(a) the State, within a period of six months from the passage of the
Commonwealth legislation referred to in clause 8, or within such
extension or extensions of that period as may be unanimously approved
by the Ministerial Council, fails to secure the passage of the
legislation of that State provided for by clause 9; or
(b) the State withdraws from this agreement pursuant to Part XVI.
PART III-ESTABLISHMENT OF SCHEME
7. The Commonwealth and the States will take such action as is provided for by
this agreement and is otherwise requisite on their respective parts to achieve
the objectives set out in recital (B) by initiating and operating the scheme
of legislative and administrative acts and procedures that is contemplated by
this agreement.
PART IV-INITIAL LEGISLATION
8. (1) The Commonwealth will-
(a) submit to the Commonwealth Parliament legislation which has been
unanimously approved by the Ministerial Council to form the basis of
the scheme and take such steps as are appropriate to secure the
passage of the legislation; and
(b) submit to the Federal Executive Council for making by the
Governor-General regulations under that legislation which have been
unanimously approved by the Ministerial Council.
(2) The legislation and regulations provided for by sub-clause (1) shall-
(a) constitute the substantive law relating to companies and the
regulation of the securities industry that will apply to the
Australian Capital Territory and, subject to clause 49 and as
contemplated by clause 50, to other Territories;
(b) except to the extent that amendments are agreed upon by the
Ministerial Council or are required to give effect to Parts V and VI,
be substantially in conformity with the provisions of the Companies
Acts, Securities Industry Acts and Marketable Securities Acts in force
at the date of this agreement in the States which are the parties to
the Interstate Corporate Affairs Agreement;
(c) confer on the Ministerial Council such powers as may appropriately be
so conferred to give effect to its functions under and in accordance
with this agreement;
(d) establish the National Commission and make provision for and in
relation to its members;
(e) confer on the National Commission such functions and powers as, in
conjunction with functions and powers which are conferred on it by the
State Acts, will enable it to carry out its functions under and in
accordance with this agreement;
(f) make provision for and in relation to the staff of the National
Commission; and
(g) include provisions relating to the financial management, proceedings,
reports and records of the National Commission and for matters that
are necessary or incidental to the performance of its functions.
9. Each State will as soon as practicable after the passage of the
Commonwealth Acts submit to the Parliament of the State and take such steps as
are appropriate to secure the passage of legislation which has been
unanimously approved by the Ministerial Council and which-
(a) to the extent necessary for the purposes of this agreement, repeals,
amends or modifies the operation of the legislation of the State
relating to companies and to the regulation of the securities industry
referred to in the Second Schedule and any regulations made under that
legislation;
(b) as from the coming into force of that legislation, applies, in place
of the legislation so repealed, amended or modified in operation, the
legislation relating to companies and to the regulation of the
securities industry enacted by the Parliament of the Commonwealth as
provided in paragraph (a) of sub-clause 8 (1) and, as from the
respective dates of that coming into force, any legislation from time
to time enacted in accordance with this agreement which amends,
supplements or is substituted for that legislation;
(c) applies, as from the coming into force of the legislation, the
regulations referred to in paragraph (b) of sub-clause 8 (1) and any
further regulations that amend or supplement or are substituted for
those regulations;
(d) authorizes such action as is requisite for the State to take under
clause 7; and
(e) in the case of the States which are parties to the Interstate
Corporate Affairs Agreement, terminates the operation of that
agreement.
10. (1) As at the date of execution of this agreement, the question of the
application, in respect of the scheme contemplated by this agreement, of
Commonwealth and State laws relating to the review of administrative
decisions, freedom of information and archives has not been resolved.
(2) This question will be the subject of further enquiry and subsequent
agreement between the parties.
PART V-NAMES AND REGISTRATION
11. The legislation of the Commonwealth and of the States provided for by Part
IV (in this Part referred to as ''the Commonwealth and State legislation'')
shall include provisions under which, except with the consent of the
Ministerial Council-
(a) a company shall not be incorporated in any State or Territory under a
name which is undesirable or is a name of a kind which the
Ministerial Council has directed to be unacceptable;
(b) a body formed outside Australia shall not be registered as a foreign
company in any State or Territory under a name which is undesirable or
is a name or a name of a kind which the Ministerial Council has
directed to be unacceptable; and
(c) a body formed within Australia other than a company shall not be
entitled to be registered as a foreign company in any State or
Territory under a name which is undesirable or is a name or a name of
a kind which the Ministerial Council has directed to be unacceptable.
12. The Commonwealth and State legislation shall include provisions under
which-
(a) a body which immediately before the legislation provided for by
clauses 8 and 9 comes into force is-
(i) a company incorporated in a State or Territory;
(ii) a body formed outside Australia and registered as a foreign
company in a State or Territory;
(iii) a body formed within Australia other than a company and
registered as a foreign company in any State or Territory,
may carry on business or establish a place of business under the name by
which, and in any State or Territory in which, it is so incorporated or is
registered as a foreign company or in which it is a recognised company and has
reserved that name;
(b) a company incorporated in any State or Territory and a body formed
outside Australia which is registered as a foreign company in any
State or Territory may reserve its name in any other State or
Territory if its name is, in that other State or Territory, not
undesirable and not a name of a kind which the Ministerial Council has
directed to be unacceptable;
(c) a company or a body which has reserved its name in a State or
Territory other than the State or Territory of its incorporation or
formation will not be required-
(i) to register in that other State or Territory in order to carry
on business or establish a place of business in that other
State or Territory; or
(ii) to lodge any documents in that other State or Territory for the
purpose of carrying on business or establishing a place of
business in that other State or Territory; and
(d) a body formed within Australia other than a company shall not be
entitled to carry on business or establish a place of business in any
State or Territory other than the State of Territory in which it is
formed unless it is registered in that other State or Territory as a
foreign company.
13. The Commonwealth and State legislation shall include provisions by virtue
of which-
(a) a company incorporated in a State or Territory;
(b) a body formed outside Australia and registered as a foreign company in
any State or Territory;
(c) a body formed within Australia other than a company and registered as
a foreign company in any State or Territory, shall not, except with
the consent of the Ministerial Council, change its name to a name
which, in any State or Territory in which it is incorporated or in
which its name is reserved, as a recognised company, is undesirable or
is a name or a name of a kind which the Ministerial Council has
directed to be unacceptable.
14. (1) The National Commission shall examine proposals that are from time to
time made for an alternative version of the provisions of the Commonwealth and
State legislation referred to in this Part, whether or not those provisions
have been enacted, or which have been included in the Commonwealth and State
legislation pursuant to those clauses and furnish a report to the
Ministerial Council on the proposals.
(2) A report by the National Commission on any proposal under sub-clause (1)
shall be furnished to the Ministerial Council within two years after the
proposal was made.
(3) The Ministerial Council shall give due consideration to a report by the
National Commission under sub-clauses (1) and (2) and may modify any provision
of the Commonwealth and State legislation or, if the legislation has been
enacted, approve an amendment thereof, having regard to the modification
proposed.
15. In this Part-
(a) ''company'' means a company incorporated under the Companies Act or
Companies Ordinance of a State or Territory and does not include a
Co-operative Company to which the Companies (Co-operative) Act
1943-1976 of the State of Western Australia (or that Act as
subsequently amended) applies.
(b) ''body'' includes a company except where a body other than a company
is referred to in which case the reference is to a corporation (other
than a company) or unincorporated organization which, if it is or were
not formed within a State or Territory, is or would be capable of
registration in the State or Territory as a foreign company.
PART VI-SPECIAL INVESTIGATIONS
16. The principles that will be adopted in the legislation of the Commonwealth
and of the States with respect to special investigations shall be-
(a) that the power to order special investigations shall be exercisable
exclusively by the members of the Ministerial Council either
collectively as the Ministerial Council or individually; and
(b) that the National Commission shall have responsibility for the
appointment of inspectors and for the direction and co-ordination of
investigatory activities.
17. The principles in respect of special investigations shall be applied by
the legislation to the following effect:
(a) the Minister responsible for the administration of the State Acts in
respect of a State or the Commonwealth Acts in respect of a Territory
shall be empowered to order a special investigation where it appears
to that Minister in the public interest in respect of the State or the
Territory to do so;
(b) the Minister responsible for the administration of the Commonwealth
Acts shall be empowered to order a special investigation where it
appears to the Minister to be in the national interest to do so;
(c) the Ministerial Council shall be empowered to order a special
investigation where in the circumstances it thinks fit;
(d) the National Commission, in performing its function as appointing
authority either where it will undertake the special investigation or
will appoint an inspector to do so, will be required-
(i) where the special investigation has been ordered by a Minister
without any request by the National Commission for the Minister
to do so, to act in accordance with the wishes of that Minister
as to the identity of the inspector and the terms and
conditions of the appointment;
(ii) in any other case, to have regard to the views of the
individual Minister or of the Ministerial Council, as the
authority by which the special investigation was ordered, as to
the identity of the inspector and the terms and conditions of
the appointment; and
(iii) in the event of a disagreement with the Minister or the
Ministerial Council on a matter coming within sub-paragraph
(ii), to accept the decision of the Ministerial Council in the
relevant respect;
(e) the National Commission shall be entitled to request an individual
Minister or the Ministerial Council, as the appropriate authority, to
order a special investigation;
(f) the power to publish the report of an inspector shall reside-
(i) in a case where the costs of the investigation are to be met by
the National Commission-in the Ministerial Council;
(ii) in any other case-in the Minister who ordered the
investigation,
but, where an opinion of the relevant Law Officer of the Commonwealth or of a
State advising that the publication of the report would be prejudicial to the
administration of justice in a Territory or the State has been made available
to the Ministerial Council or the Minister having the power to publish the
report as the case may be, the power shall not be exercised until a further
opinion by the relevant Law Officer is similarly made available to the effect
that publication would be no longer prejudicial to that administration of
justice;
(g) where a special investigation has been ordered by a Minister without
any request by the National Commission for the Minister to do so, that
Minister, not the National commission, shall, unless and until the
Ministerial Council subsequently approves the investigation, have in
relation to that investigation those powers and functions of ''the
Minister'' presently expressed in Part VIA of the Companies Act 1961
or Division 2 of Part II of the Securities Industry Act 1975 of the
State of New South Wales, whichever is relevant, which are referred to
in Part 2 of the First Schedule.
18. (1) The cost and expenses of and in connection with the carrying out of a
special investigation shall be borne-
(a) where the investigation was ordered by-
(i) the Ministerial Council;
(ii) an individual Minister at the request of the National
Commission; or
(iii) an individual Minister but subsequently approved by the
Ministerial Council,
by the National Commission;
(b) in all other cases-by the party to this agreement whose Minister
ordered the investigation.
(2) Moneys which are recovered in respect of the costs and expenses of a
special investigation shall be paid or credited to the National Commission or
to the party to this agreement according to the allocation under sub-clause
(1) of responsibility for those costs and expenses.
PART VII-ESTABLISHMENT OF MINISTERIAL COUNCIL
19. For the purposes of the scheme there shall be a Council of Commonwealth
and State Ministers to be known as the Ministerial Council for Companies and
Securities.
20. (1) The Ministerial Council shall consist of a member representing each
party for the time being to this agreement who, subject to sub-clause (2),
shall be the Minister of State of that party who is for the time being
responsible for administering the law relating to companies and the regulation
of the securities industry.
(2) A member of the Ministerial Council for the time being representing a
party to this agreement-
(a) may appoint a delegate who is another Minister of State of that party
to attend a meeting of the Ministerial Council in place of the member;
or
(b) shall, while a Minister of State of the party is for the time being
acting as the Minister who is referred to in sub-clause (1), be the
Minister who is so acting, and references in this agreement (other
than in this clause) to a member of the Ministerial Council shall
include a delegate in respect of attendance at any such meeting or a
Minister who is so acting.
PART VIII-FUNCTIONS OF MINISTERIAL COUNCIL
21. (1) The functions of the Ministerial Council shall be-
(a) to consider and to keep under review the formulation and operation of
the legislation and regulations provided for by this agreement; and
(b) to exercise general oversight and control over the implementation and
operation of the scheme.
(2) To assist the Ministerial Council in discharging its functions under
paragraph (a) of the previous sub-clause, there shall be a Companies and
Securities Law Review Committee-
(a) to carry out research into and advise on law reform in relation to the
legislation and regulations referred to in that paragraph;
(b) the number of the members of which is to be determined from time to
time by the Ministerial Council;
(c) the members of which are to be appointed and may be removed by the
Ministerial Council and will be engaged on terms and conditions
determined by the Ministerial Council.
22. (1) Without prejudice to the generality of clause 21, the functions of the
Ministerial Council shall include-
(a) consideration and approval of the Bills which will comprise the
Commonwealth legislation referred to in clause 8 and of the
regulations under that legislation;
(b) consideration and approval of the Bills of each State which will
comprise the State legislation referred to in clause 9 and of any
regulations under that legislation;
(c) consideration and approval of any amendments of, or of any legislation
proposed to supplement or be substituted for, the Commonwealth Acts
and the regulations for the time being in force thereunder;
(d) consideration and approval of any amendments of, or of any legislation
proposed to supplement or be substituted for, the State Acts and any
regulations for the time being in force thereunder;
(e) general oversight, including budgetary control, over the functioning
of the National Commission; and
(f) giving directions to the National Commission in respect of any policy
or matter that comes within the functions of the National Commission
under the Commonwealth Acts or the State Acts.
(2) Subject to Part VI and clause 39, the functions of the Ministerial Council
under paragraph (f) of sub-clause (1) shall be an exclusive function and the
National Commission shall not be required to recognize or acknowledge any
other person or authority as empowered to give directions to it in that
respect.
23. The Ministerial Council shall be entitled to require the National
Commission to furnish a report to the Ministerial Council in relation to-
(a) any policy which the National Commission is pursuing, or proposes to
pursue, including a report of the estimated financial effect on State
and Territory administrations of any policy or change in policy which
the National Commission proposes to pursue; and
(b) any other matter within the functions of the Ministerial Council or of
the National Commission.
24. The functions of the Ministerial Council shall not, except as provided in
clause 25, be able to be, and shall not be, delegated to any Minister or to
any other person or authority.
25. The Ministerial Council may itself exercise and, without derogation from
its power in that respect at any time, may from time to time and for such time
as it may determine, authorize any one or more of its members or the National
Commission to exercise a discretion arising out of or relating to a matter or
to matters specified in, and subject to, Part 1 of the First Schedule to this
agreement.
PART IX-PROCEEDINGS OF MINISTERIAL COUNCIL
26. (1) Ordinary meetings of the Ministerial Council (in this Part called
''Council'') shall be held at such times and places as are from time to time
decided by Council but not less than four shall be held in each calendar year.
(2) A special meeting of Council may be convened by any member by notice of 14
days or of such other period as may be accepted by all members for the purpose
of the meeting.
(3) A special meeting shall not, except with the agreement of all members of
Council, consider a matter which has not been specified in or at the time of
the notice of the meeting.
27. The quorum for a meeting of Council shall be five members.
28. (1) The Chairman of a meeting of Council shall be decided by Council prior
to or, if not previously decided, at the meeting.
(2) At a meeting of Council the Chairman shall have a deliberative but not
casting vote.
29. (1) Except as otherwise provided in this clause, in paragraph (a) of
clause 6 and in clauses 8, 9 and 30, a resolution will be carried by Council
by a simple majority of members present and voting on the resolution.
(2) A unanimous vote of all members of Council shall be required for the
passage of a resolution which-
(a) nominates a person for appointment as a member of the National
Commission;
(b) approves amendments of the Commonwealth Acts which will change the
number of members of the National Commission; or
(c) cancels the approval of any stock exchange in Australia.
30. A resolution which, without being considered at a meeting of Council, is
referred to all members of Council and of which a majority of the members, or,
if a unanimous vote is required for the passage of the resolution, all the
members indicate by telephone, teleprinter message or other mode of
communication to the National Commission that they are in favour shall be as
valid and effectual as if it had been passed at a meeting of Council duly
convened and held.
31. Subject to the foregoing provisions of this Part, Council may determine
its own procedure and for that purpose may make rules of procedure, including
rules relating to notices of meetings and conduct of business at meetings and
to voting by members under clause 30, and may from time to time alter such
rules.
PART X-NATIONAL COMPANIES AND SECURITIES COMMISSION
32. (1) Subject to this agreement, the functions of the National Commission to
be established by the Commonwealth Acts shall be to have and to exercise,
subject only to directions from time to time of the Ministerial Council,
responsibility for the entire area of policy and administration with respect
to company law and the regulation of the securities industry.
(2) The National Commission shall be required by the Commonwealth Acts to
comply with directions that are from time to time given to it by the
Ministerial Council in accordance with the agreement or by a Minister pursuant
to sub-paragraph (d) (i) of clause 17, and in conformity with the Commonwealth
Acts and the State Acts.
(3) Without prejudice to the generality of sub-clause (1), the functions of
the National Commission shall, subject to paragraph 17 (g), include the
exercise of discretions in respect of the matters specified in Part 2 of the
First Schedule for the purposes of the operation of the provisions by which
those discretions are conferred.
33. (1) The National Commission shall be a body corporate under the name
National Companies and Securities Commission and shall consist of not less
than three and not more than five members (who shall be known as members) and
at least three members shall be full time members.
(2) The members shall be appointed by the Governor-General of the Commonwealth
on the nomination of the Ministerial Council.
(3) A Chairman and a Deputy Chairman of the National Commission shall be
appointed by the Governor-General from the full-time members for the time
being on the nomination of the Ministerial Council.
(4) In the event of a vacancy in the office of Chairman or the absence of the
Chairman from duty or from Australia the Deputy Chairman shall act as Chairman
and in the event of a vacancy in the office of Deputy Chairman or a like
absence of the Deputy Chairman a member who has been nominated by the
Ministerial Council to act as Chairman in that event may so act.
(5) The qualifications of a person for appointment as member shall include
suitable experience in business, commerce, law, economics, accounting or
public administration.
(6) A member shall, subject to the provisions of the Commonwealth Acts, hold
office for such period not exceeding five years as is specified upon
appointment and shall be eligible for re-appointment.
34. (1) The affairs of the National Commission shall be conducted at meetings
of members and in such other manner as is provided by the Commonwealth Acts.
(2) The quorum for a meeting of the National Commission shall be three members
unless at the time the Commission consists of three members only, in which
case the quorum shall be two members.
(3) The Chairman of the National Commission or, in the absence of the
Chairman, the Deputy Chairman or Acting Deputy Chairman for the time being
will preside at meetings.
(4) The person presiding at a meeting shall have a deliberate but not a
casting vote.
35. (1) The National Commission shall have power to delegate any of its
functions, including the functions referred to in sub-clause 32 (3), to an
administration, or to an officer of an administration, of a State or of a
Territory.
(2) In performing its functions and exercising its powers, including the power
of delegation, the National Commission shall have regard to the principle of
the maximum development of a decentralized capacity to interpret and
promulgate the uniform policy and administration of the scheme.
36. (1) The staff of the Commission shall consist of such persons as are
employed by it in accordance with the Commonwealth Acts and may include
persons who, by arrangement between the Commonwealth and a State in accordance
with the Commonwealth Acts and the State Acts, are provided for the
performance of services for the National Commission.
(2) The National Commission shall be empowered to arrange with the
Commonwealth or a State for the services of members of its staff to be made
available for the administration by the Commonwealth or the State of company
law or the regulation of the securities industry.
PART XI-STATE AND TERRITORY ADMINISTRATIONS
37. (1) The administration of company law and the regulation of the securities
industry within each State and Territory in accordance with the scheme
established under this agreement shall, to the maximum extent practicable, be
carried out by the entities and personnel of the State or Territory
administration but those entities and personnel shall in the performance of
those functions be subject to direction by the National Commission.
(2) The power of the National Commission to give directions to a State or
Territory administration shall not apply to functions which that
administration performs under legislation or regulations other than that of
the Commonwealth and of the States provided for by clause 8 and by paragraphs
(b) and (c) of clause 9 respectively.
38. (1) The policy direction and general control over the administration of
company law and the regulation of the securities industry throughout Australia
by the Ministerial Council and by the Commission in accordance with this
agreement shall, subject to Part VI and to clause 25 and to sub-clause (2), be
exercised to the exclusion of individual Ministerial direction and control by
the responsible Minister of the Commonwealth or of the State.
(2) The exercise of direction and control by the Ministerial Council or by the
National Commission referred to in sub-clause (1) shall not extend to matters
relating to the Australian Public Service or the Public Service of a State or
to the management and provision of facilities and services of the State or
Territory administration or to any functions of that administration that are
not included within the scope of operation of the scheme established under
this agreement.
39. The Minister of the Commonwealth or of a State who has administrative
responsibility for company law and regulation of the securities industry in a
State or Territory shall be entitled to be notified of, and to be given
information concerning, any matter being dealt with by the National Commission
or the administration of the State or the Territory and shall have the right
to refer any matter arising out of or in connexion with the Minister's
responsibilities directly to the National Commission or to the Ministerial
Council for consideration.
40. Each party to this agreement will provide the funds and other resources
necessary for its State or Territory administration to carry out the functions
of that administration in accordance with the scheme established under this
agreement.
PART XII-FUNDING OF NATIONAL COMMISSION
41. (1) The funds required for the establishment and functioning of the
National Commission shall be provided in equal shares by the Commonwealth as
to one part and the States jointly as to the other part.
(2) The share of the States of the funds required during a financial year
shall be apportioned between the States in accordance with the same
proportions as the estimated population of each State on the 31st December in
the financial year as determined by the Australian Statistician under section
9 of the States (Personal Income Tax Sharing) Act 1976 of the Commonwealth
Parliament bears to the total of the estimated populations of all the States
on that date as so determined.
(3) If the Northern Territory becomes a party to this agreement under clause
49, the proportion of the share of the States which that Territory is to
provide for the purposes of sub-clause (2) shall be calculated according to
the population of that Territory as determined from time to time by the
Australian Statistician.
42. (1) The parties will, on or before a date to be agreed between them, enter
into an agreement relating to the sharing of relevant fees among the parties
in appropriate terms similar to those contained in the agreement dated 15
January 1976 between the States of New South Wales, Victoria, Queensland and
Western Australia relating to the sharing of fees for the purposes of the
Interstate Corporate Affairs Agreement.
(2) The agreement entered into pursuant to the previous sub-clause shall
provide that it may be amended by the unanimous decision of the Ministerial
Council.
PART XIII-REPORTS AND STATEMENTS
43. (1) The National Commission shall be required by the Commonwealth Acts to
prepare, as soon as practicable after each financial year and not later than
the 31st October after the financial year, an annual report and fianancial
statements in respect of that year in such form as is approved from time to
time by the Ministerial Council.
(2) The report and financial statements in respect of each financial year
shall be submitted to-
(a) the responsible Minister of the Commonwealth for presentation to the
Commonwealth Parliament;
(b) each responsible Minister of a State for presentation to the State
Parliament; and
(c) the Ministerial Council.
PART XIV-AMENDMENT OF LEGISLATION
44. The following provisions shall apply with respect to the amendment of the
legislation of the Commonwealth and of the States provided for by this
agreement:
(a) The National Commission or any party to this agreement may at any time
submit to the Ministerial Council for consideration, or the
Ministerial Council may at any time of its own motion consider, a
proposal for the amendment of the Commonwealth Acts.
(b) In the event that any Bill to amend the Commonwealth Acts is approved
by the Ministerial Council, the Commonwealth will submit that Bill to
the Commonwealth Parliament and will take such steps as are
appropriate to secure the passage of the Bill.
(c) If a Bill has not been passed by the Commonwealth Parliament within
six months from the date on which it was approved by the
Ministerial Council, any State may submit to its Parliament and secure
the passage of separate legislation which amends the State Acts of
that State in such a manner as to give effect to the amendment which
that Bill would have made to the Commonwealth Acts.
45. (1) The National Commission or any party to this agreement may at any time
submit to the Ministerial Council for consideration, or the Ministerial
Council may at any time of its own motion consider, a proposal for the
amendment of the regulations made under the Commonwealth Acts.
(2) In the event that any draft regulation to amend the Commonwealth
regulations to give effect to such a proposal is approved by the Ministerial
Council, the Commonwealth will submit the draft regulation to the Executive
Council for making by the Governor-General and will take such steps as are
appropriate to secure the making of that amending regulation.
(3) If upon the expiration of six months from the date on which any such
amending regulation was approved by the Ministerial Council the amending
regulation has not been made or, having been made, is subject to disallowance
or has ceased to be in force by disallowance or for any other reason, any
State may cause a regulation to be made which amends the regulations made
under the State Act of the State in accordance with the amending regulation
that was approved by the Ministerial Council.
46. The Commonwealth will not-
(a) submit to the Commonwealth Parliament any Bill to amend the
Commonwealth Acts; or
(b) cause to be made any regulation which amends the regulations made
under the Commonwealth Acts, unless the amendment which will be made
by the Bill or by the regulations, as the case may be, has been
approved by the Ministerial Council.
47. (1) The Commonwealth will not submit to its Parliament legislation or take
action for the making of regulations which will, upon coming into force,
negative the operation of the legislation referred to in paragraph (a) of
sub-clause 8 (1) or the regulations referred to in paragraph (b) of that
sub-clause or that legislation or those regulations as amended from time to
time in accordance with this agreement.
(2) Subject to paragraph (c) of clause 44 and to sub-clause 45 (3), a State
will not submit to its Parliament legislation or take action for the making of
regulations which will, upon coming into force, negative the operation of the
legislation of the State which applies-
(a) the legislation referred to in paragraph (b) of clause 9; or
(b) the regulations referred to in paragraph (c) of clause 9.
PART XV-ACCESSION OF NEW STATES AND TERRITORIES
48. (1) A new State of the Commonwealth of Australia may become a party to
this agreement by signature on its behalf of a copy of this agreement and
notifying each party to this agreement in writing of the signature and the
date of signature and shall be deemed to have become a party as from that
date.
(2) Subject to sub-clause (3), the provisions of this agreement shall apply to
a new State which becomes a party as if it were named as a party to this
agreement.
(3) Paragraph (a) of clause 6 shall apply to a new State which becomes a party
as if the period of six months referred to therein was expressed as commencing
on the date that State becomes a party to this agreement.
49. (1) If administrative responsibility for company law and the regulation of
the securities industry in respect of the Northern Territory has become vested
in a Minister or Executive Officer who is responsible to the Legislative
Assembly of the Territory, the Northern Territory shall be entitled to become
a party to this agreement on the basis set out in this clause.
(2) If the Northern Territory becomes a party pursuant to the previous
sub-clause-
(a) the appropriate Northern Territory representative shall be entitled to
participate in the proceedings of the Ministerial Council but, subject
to paragraph (c), shall not be entitled to vote as a member of the
Ministerial Council;
(b) subject to the previous paragraph, the provisions of this agreement
shall apply to the Northern Territory so far as is practicable as if
the Territory were a State and, to such extent as is appropriate, the
provisions of this agreement shall be read and construed and, if
necessary, modified to achieve that result; and
(c) the other parties to this agreement may unanimously agree that the
representative referred to in paragraph (a) shall be entitled to vote
as a member of the Ministerial Council.
(3) For the purposes of paragraph (b) of the previous sub-clause, references
in this agreement to the Parliament of a State shall be read as references to
the legislature of the Northern Territory and the expression ''the State
Acts'' shall include the legislation of or for the Northern Territory which
corresponds to the legislation of a State that is provided for by this
agreement.
(4) If the Northern Territory is, at the time when it becomes a State, a party
to this agreement, it shall continue as a party as though it had become a
party pursuant to clause 48.
50. If the Minister of State of the Commonwealth responsible for the
administration of company law and the regulation of the securities industry
considers that the operation of this agreement should be extended to the
administration of company law and the regulation of the securities industry in
an external Territory of the Commonwealth he may notify the Ministerial
Council in writing to that effect and, subject to the passage by the
Commonwealth Parliament of such legislation and the making of such regulations
as are necessary to achieve that result, the provisions of this agreement
shall apply to that Territory in the same manner and to the same effect as
they apply to the Australian Capital Territory.
PART XVI-WITHDRAWAL OF A PARTY
51. (1) A party to this agreement may at any time by notice in writing to the
Ministerial Council withdraw from this agreement and shall cease to be a party
when the notice of withdrawal takes effect.
(2) Subject to sub-clause (3), a notice of withdrawal under this clause shall
take effect on a date to be specified in the notice which is not less than one
year from the date on which the notice is given.
(3) If the Commonwealth acts in breach of clause 46, a State may withdraw from
this agreement under sub-clause (1) by giving a notice of withdrawal which
refers to that breach and which takes effect forthwith.
FIRST SCHEDULE
PART 1
Clause 25
The matters for which immediately before the date of its repeal provision was
made by-
(a) sections 22, 69A and 353 and sub-sections 178 (4), 381 (1) and 381 (2)
of the Companies Act 1961 of the State of New South Wales; and
(b) sections 29 and sub-sections 21 (4), 127 (1) and 127 (2) of the
Securities Industry Act 1975 of the State of New South Wales. The
National Commission shall not be authorized to exercise the discretion
arising from section 29 of the said Securities Industry Act 1975.
PART 2
Clause 32 (3)
The matters for which immediately before the date of its repeal provision was
made by-
(a) sections 24, 79, 179, 179B, 180 180V, 186, 374D and 374E, sub-sections
44 (3), 80 (1A), 88 (1), 176 (5), 178 (1), 178 (1A), 178 (2), 178 (3),
178 (5), 178 (6), 178 (7), 178 (8), 178 (9), 178 (10), 224 (3), 334
(2) and 374 (2) and paragraphs 38 (7) (b), 74 (1) (e), 171 (1) (b) and
339 (b) of the Companies Act 1961 of the State of New South Wales; and
(b) sections 21 (other than sub-section (4)), 22, 24, 26 and 129,
sub-section 19 (5) and paragraph 17 (2) (a) of the Securities Industry
Act 1975 of the State of New South Wales.
SECOND SCHEDULE
STATE LEGISLATION
Clause 9 (a)
New South Wales . . . . . . . Companies Act 1961 Marketable Securities Act
1970 Securities Industry Act 1975 Queensland
. . . . . . . . . Companies Act 1961-1975 Marketable Securities
Act 1966 Securities Industry Act 1975 South
Australia . . . . . . . Companies Act 1962-1974 Marketable Securities
Transfer Act 1967
Sharebrokers Act 1945 Tasmania . . . . . . .
. . . Companies Act 1962 Marketable Securities Act
1971 Victoria . . . . . . . . . . Companies Act 1961
Marketable Securities Act
1970 Securities Industry Act 1975 Western
Australia . . . . . . Companies Act 1961-1975 Marketable Securities
Transfer Act 1970
Securities Industry Act 1975 IN WITNESS WHEREOF this Agreement has been
respectively signed for and on behalf of the parties as at the day and year
first above written. SIGNED by the Right Honourable JOHN MALCOLM FRASER, Prime
Minister of the Commonwealth of Australia, in the presence of-
MALCOLM FRASER
WAL FIFE SIGNED by the Honourable NEVILLE KENNETH WRAN, Premier of the State
of New South Wales, in the presence of-
NEVILLE WRAN
B. DALE SIGNED by the Honourable RUPERT JAMES HAMER, Premier of the State of
Victoria, in the presence of-
R. J. HAMER
K. D. GREEN SIGNED by the Honourable JOHANNES BJELKE- PETERSEN, Premier of the
State of Queensland, in the presence of-
JOH BJELKE-PETERSEN
H. J. TRELOAR SIGNED by the Honourable DONALD ALLAN DUNSTAN, Premier of the
State of South Australia, in the presence of-
DON DUNSTAN
BRUCE GUERIN SIGNED by the Honourable SIR CHARLES WALTER MICHAEL COURT,
Premier of the State of Western Australia, in the presence of-
CHARLES COURT
BRIAN V. JOHNSON SIGNED by the Honourable DOUGLAS ACKLEY LOWE, Premier of the
State of Tasmania, in the presence of-
D. A. LOWE
D. EWART
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