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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Corporations (Commonwealth Powers)
Bill 2000
Contents
Page
1 Name and purpose of Act 2
2 Commencement 2
3 Definitions 2
4 Reference of matters 3
5 Exclusion from amendment reference of matters relating
to industrial relations matters 5
6 Exclusion from amendment reference of matters relating
to formation of companies and other matters 8
7 Termination of references 8
8 Extension of period of reference by proclamation 9
9 Earlier termination of reference by proclamation 10
10 Evidence 10
11 Operation of Act 11
b00-116-p02.801
New South Wales
Corporations (Commonwealth Powers)
Bill 2000
No , 2000
A Bill for
An Act to refer certain matters relating to corporations and financial products and
services to the Parliament of the Commonwealth for the purposes of section 51
(xxxvii) of the Constitution of the Commonwealth.
Clause 1 Corporations (Commonwealth Powers) Bill 2000
The Legislature of New South Wales enacts: 1
1 Name and purpose of Act 2
(1) This Act is the Corporations (Commonwealth Powers) Act 2000. 3
(2) The purpose of this Act is to refer certain matters relating to 4
corporations and financial products and services to the Parliament of 5
the Commonwealth for the purposes of section 51 (xxxvii) of the 6
Constitution of the Commonwealth, so as to enable that Parliament to 7
make laws that apply of their own force in the State, instead of those 8
matters being dealt with by the Corporations Law and other applied 9
laws. 10
2 Commencement 11
This Act commences on a day or days to be appointed by 12
proclamation. 13
3 Definitions 14
(1) In this Act: 15
amendment reference means the reference under section 4 (1) (b). 16
commencement day means the day on which section 4 (1) 17
commences. 18
Corporations instrument means any instrument made or issued under 19
the Corporations legislation. 20
Corporations legislation means Commonwealth Acts enacted in the 21
terms, or substantially in the terms, of the tabled text and as in force 22
from time to time. 23
express amendment of the Corporations legislation means the direct 24
amendment of the text of the Corporations legislation (whether by the 25
insertion, omission, repeal, substitution or relocation of words or 26
matter) by Commonwealth Acts, but does not include the enactment 27
by a Commonwealth Act of a provision that has or will have 28
substantive effect otherwise than as part of the text of the 29
Corporations legislation. 30
initial reference means the reference under section 4 (1) (a). 31
prescribed termination day means the day on which both the 32
references are to terminate as set out in section 7 (1). 33
Page 2
Corporations (Commonwealth Powers) Bill 2000 Clause 3
reference means: 1
(a) the initial reference, or 2
(b) the amendment reference. 3
referred provisions means the tabled text to the extent to which that 4
text deals with matters that are included in the legislative powers of the 5
Parliament of the State. 6
tabled text means the text of the following proposed Bills for 7
Commonwealth Acts, comprised in two or more documents (each 8
bearing identification as "part of the tabled text") as tabled by or on 9
behalf of the Attorney General in the Legislative Assembly at any time 10
during the period between the giving of notice of motion for leave to 11
introduce the Bill for this Act in the Legislative Assembly and the 12
second reading of that Bill in the Legislative Assembly: 13
(a) Corporations Bill 2000, 14
(b) Australian Securities and Investments Commission Bill 2000. 15
(2) If a proclamation terminating the amendment reference alone has been 16
published under section 9 and has not been revoked, the expression the 17
references refers to the initial reference only. 18
4 Reference of matters 19
(1) The following matters are referred to the Parliament of the 20
Commonwealth: 21
(a) the matters to which the referred provisions relate, but only to 22
the extent of the making of laws with respect to those matters 23
by including the referred provisions in Acts enacted in the 24
terms, or substantially in the terms, of the tabled text (including 25
laws containing provisions that authorise the making of 26
Corporations instruments that affect the operation of the 27
Corporations legislation, otherwise than by express 28
amendment), and 29
(b) the matters of the formation of corporations, corporate 30
regulation and the regulation of financial products and services, 31
but only to the extent of the making of laws with respect to 32
those matters by making express amendments of the 33
Corporations legislation (including laws inserting or amending 34
provisions that authorise the making of Corporations 35
instruments that affect the operation of the Corporations 36
legislation, otherwise than by express amendment). 37
Page 3
Clause 4 Corporations (Commonwealth Powers) Bill 2000
(2) The reference of a matter under subsection (1) has effect only: 1
(a) if and to the extent that the matter is not included in the 2
legislative powers of the Parliament of the Commonwealth 3
(otherwise than by a reference under section 51 (xxxvii) of the 4
Constitution of the Commonwealth), and 5
(b) if and to the extent that the matter is included in the legislative 6
powers of the Parliament of the State. 7
(3) The operation of each paragraph of subsection (1) is not affected by 8
the other paragraph. 9
(4) For the avoidance of doubt, it is the intention of the Parliament of the 10
State that: 11
(a) the Corporations legislation may be expressly amended, or have 12
its operation otherwise affected, at any time on or after the 13
commencement day by provisions of Commonwealth Acts the 14
operation of which is based on legislative powers that the 15
Parliament of the Commonwealth has apart from the references, 16
and 17
(b) the Corporations legislation may have its operation affected, 18
otherwise than by express amendment, at any time on or after 19
the commencement day by provisions of Corporations 20
instruments, and 21
(c) the references are not made subject to any condition relating to: 22
(i) the express amendment or affecting of the Corporations 23
legislation by provisions referred to in paragraph (a), or 24
(ii) the affecting of the Corporations legislation by 25
provisions referred to in paragraph (b). 26
(5) Despite any other provision of this section, a reference has effect for 27
a period: 28
(a) beginning at the beginning of the commencement day, and 29
(b) ending at the beginning of the day on which it terminates as set 30
out in section 7, 31
but not longer. 32
Page 4
Corporations (Commonwealth Powers) Bill 2000 Clause 5
5 Exclusion from amendment reference of matters relating to industrial 1
relations matters 2
(1) The amendment reference does not include any of the following 3
matters: 4
(a) the matter of conciliation or arbitration for the prevention and 5
settlement of industrial disputes, 6
(b) the matter of the adjudication or mediation of matters arising 7
under industrial agreements, 8
(c) matters relating to the remuneration or other terms or conditions 9
of employment of employees, 10
(d) matters relating to the number, identity, appointment, probation, 11
promotion, transfer (from place to place or position to position), 12
physical or mental fitness, uniform, equipment or discipline of 13
employees, 14
(e) the matter of the termination, or proposed termination, of the 15
employment of an employee, otherwise than in connection with 16
the winding up of a corporation, 17
(f) matters relating to the formation or dissolution of industrial 18
associations of employees, employers or independent 19
contractors, 20
(g) the matter of freedom of association, namely the rights of 21
employees, employers and independent contractors to join an 22
industrial association of their choice, or not to join such an 23
association, 24
(h) matters affecting employees relating to the following subject 25
matters: 26
(i) workers' compensation, 27
(ii) the quantum of superannuation, 28
(iii) occupational health and safety, 29
(iv) apprenticeship, 30
(v) long service leave, recreation leave, sick leave and other 31
leave entitlements, 32
(vi) days to be observed as public holidays, 33
(vii) equal opportunity, 34
(i) the matters relating to the following subject matters: 35
(i) industrial agreements, 36
(ii) the making of an award, order or other industrial 37
instrument, 38
Page 5
Clause 5 Corporations (Commonwealth Powers) Bill 2000
(iii) the making of an award, order or other industrial 1
instrument as, or declaring any term of an award, order 2
or other industrial instrument to be, a common rule for 3
an industry, 4
(j) any other matter (whether of a similar or different kind) relating 5
to: 6
(i) workplace, labour or industrial regulation, or 7
(ii) workplace, labour or industrial relations. 8
(2) Subsection (1) does not apply in relation to the following: 9
(a) the legal capacity of corporations to enter into workplace, 10
labour or industrial relations, 11
(b) the disclosure of or reporting of information of any kind and in 12
any form, 13
(c) the regulation of employee share schemes, 14
(d) the rights and duties of employees as a class of shareholders, 15
(e) superannuation (except with respect to the quantum of 16
superannuation as referred to in subsection (1)), and, without 17
limitation, market conduct in relation to employment related 18
superannuation, 19
(f) conditions of employment relating to: 20
(i) the use of an employee's position to gain an advantage 21
or cause detriment to his or her employer, or 22
(ii) the use of information obtained as an employee, or 23
(iii) other obligations of an employee so far as they relate 24
principally to corporate regulation or the regulation of 25
financial products and services (and accordingly not 26
principally to matters relating to workplace, labour or 27
industrial relations), 28
(g) the following: 29
(i) the creation (by Commonwealth law) of rights of 30
employees to the accrual of remuneration entitlements, 31
superannuation entitlements, leave entitlements and 32
other entitlements and the adjustment of rights so 33
created, or 34
(ii) the protection of accrued or accruing entitlements of 35
employees, whether arising under rights referred to in 36
subparagraph (i) or otherwise, 37
Page 6
Corporations (Commonwealth Powers) Bill 2000 Clause 5
(h) the fitness, qualifications, supervision and discipline of 1
employees of: 2
(i) holders of licences for the provision of financial 3
products or services, or 4
(ii) representatives of holders of any such licences, 5
(i) in the case of a person who is an employee of a corporation and 6
is or was also an officer of the corporation--the person in his 7
or her capacity as an officer of the corporation, 8
(j) in the case of a person who is or was the spouse or relative of 9
an employee--the person in his or capacity as spouse or 10
relative. 11
(3) In this section: 12
corporation includes: 13
(a) a body corporate of any kind, and 14
(b) an unincorporated body that by law may sue or be sued, or may 15
hold property, in the name of the secretary or other officer of 16
the body. 17
employee means a person who is employed or otherwise engaged in 18
any trade, manufacture, business, project, occupation or any other 19
industry. 20
industrial agreement means an agreement about matters relating to the 21
relationship between an employer or employers and an employee or 22
employees. 23
officer of a corporation means: 24
(a) a director or secretary of the corporation, or 25
(b) an employee of the corporation, or other person connected with 26
the corporation, who is responsible for the management of the 27
corporation or who participates in the management of the 28
corporation at a senior level. 29
(4) A person is not prevented from being an employee for the purposes of 30
this section only because: 31
(a) the person works part-time or on a casual basis, or 32
(b) the person is paid wholly or partly by commission, or 33
Page 7
Clause 5 Corporations (Commonwealth Powers) Bill 2000
(c) the person is working under a contract for labour only, or 1
substantially for labour only, or 2
(d) the person is a lessee of any tools or other implements of 3
production. 4
6 Exclusion from amendment reference of matters relating to formation 5
of companies and other matters 6
(1) The amendment reference does not include the matter of making 7
express amendments of the Corporations legislation that: 8
(a) require or have the effect of requiring the adoption of a 9
corporate structure by a natural person or unincorporated body, 10
whether by the formation of a corporation or otherwise, or 11
(b) require or have the effect of requiring any activities of a natural 12
person or unincorporated body to be conducted by persons who 13
are employees of a corporation, 14
whether conditionally or unconditionally, and whether in particular 15
circumstances or in all circumstances. 16
(2) Nothing in subsection (1) excludes from the amendment reference the 17
matter of making express amendments of the Corporations legislation 18
that: 19
(a) prohibit or have the effect of prohibiting the formation of 20
partnerships or associations that consist of more than 20 21
members, or 22
(b) prohibit or have the effect of prohibiting a person other than a 23
corporation being engaged in the management of any scheme 24
or market under, through or in which financial products or 25
services are offered to the public. 26
(3) In this section: 27
corporation includes a body corporate of any kind. 28
7 Termination of references 29
(1) Subject to earlier termination under this section, the references 30
terminate on the day that is the fifth anniversary of the day of 31
commencement of the Corporations legislation or on a later day fixed 32
by the Governor by proclamation under section 8. 33
Page 8
Corporations (Commonwealth Powers) Bill 2000 Clause 7
(2) Both the references terminate on a day that is earlier than the 1
prescribed termination day if the Governor fixes that earlier day by 2
proclamation under section 9 as the day on which the references 3
terminate. 4
(3) The amendment reference alone terminates on a day that is earlier than 5
the prescribed termination day if the Governor fixes that earlier day by 6
proclamation under section 9 as the day on which the amendment 7
reference terminates. 8
(4) If the amendment reference terminates before the initial reference, the 9
termination of the amendment reference does not affect: 10
(a) laws that were made under the amendment reference before that 11
termination but have not come into operation before that 12
termination, or 13
(b) the continued operation in the State of the Corporations 14
legislation as in operation immediately before that termination 15
or as subsequently amended or affected by: 16
(i) laws referred to in paragraph (a), or 17
(ii) provisions referred to in section 4 (4) (a) or (b). 18
(5) For the purposes of subsection (4): 19
(a) the laws referred to in subsection (4) (a) include Corporations 20
instruments, and 21
(b) the reference in subsection (4) (b) to the Corporations 22
legislation as in operation immediately before the termination 23
of the amending reference includes that legislation as affected 24
by Corporations instruments that have come into operation 25
before that time. 26
8 Extension of period of reference by proclamation 27
(1) The Governor may, at any time before the prescribed termination day, 28
by proclamation published in the Gazette, fix a day that is later than 29
the prescribed termination day as the day on which both the references 30
terminate. 31
(2) More than one proclamation may be made under subsection (1). 32
Page 9
Clause 9 Corporations (Commonwealth Powers) Bill 2000
9 Earlier termination of reference by proclamation 1
(1) The Governor may, at any time, by proclamation published in the 2
Gazette, fix a day that is earlier than the prescribed termination day as 3
the day on which: 4
(a) the references terminate, or 5
(b) the amendment reference terminates. 6
(2) The day fixed under subsection (1) must be no earlier than the first day 7
after the end of the period of 6 months beginning with the day on 8
which the proclamation is published under that subsection. 9
(3) The Governor may, by proclamation published in the Gazette, revoke 10
a proclamation published under subsection (1), in which case the 11
revoked proclamation is taken (for the purposes of section 7) never to 12
have been published. 13
(4) A revoking proclamation has effect only if published before the day 14
fixed under subsection (1). 15
(5) The revocation of a proclamation published under subsection (1) does 16
not prevent publication of a further proclamation under that subsection. 17
(6) A proclamation under subsection (1) has effect despite any earlier 18
proclamation published under section 8 (1). 19
10 Evidence 20
(1) A certificate of the Clerk of the Legislative Assembly of New South 21
Wales certifying that a document is an accurate copy of the tabled text, 22
or is an accurate copy of a particular part or of particular provisions of 23
the tabled text, is admissible in evidence in any proceedings and is 24
evidence: 25
(a) of the matter certified, and 26
(b) that the text of proposed Commonwealth Bills was tabled in the 27
Legislative Assembly of New South Wales as referred to in the 28
definition of tabled text in section 3. 29
(2) Subsection (1) does not affect any other way in which the tabling or 30
content of the tabled text, or the accuracy of a copy of the tabled text 31
or of a part or provisions of the tabled text, may be established. 32
Page 10
Corporations (Commonwealth Powers) Bill 2000 Clause 11
11 Operation of Act 1
This Act has effect despite any provision of the Corporations (New 2
South Wales) Act 1990 or of the applicable provisions (as defined in 3
that Act) of the State. 4
Page 11
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